----0.VII, R.11 & 0.XXIII, R.1---Specific MIAN SAQIB NISAR, J.---The Relief Act (I of 1877), 5.8 Suit for petitioner brought a suit for the possession possession---Withdrawal of suit with against the respondent, with regard to the suit property and during the pendency permission to file fresh proceedings--- thereof, made a statement that he would Rejection of plaint-Plaintiff brought a suit .. like to tile an ejectment application and for possession against defendant with thus intends to withdraw the suit, but regard to suit property-Plaintiff, during sought the permission to file a fresh pendency of suit, made statement that he intended to proceedings; the learned Court vide order file ejectment application dated 26-12-2004, passed the following against defendant and sought permission to withdraw suit to file fresh proceedings--- order:- Trial Court dismissed suit with permission to file fresh proceedings-Plaintiff brought {{URDU TEXT}} second suit for possession, but plaint in said second suit was concurrently rejected by the Trial Court and Appellate Court on the ground that plaintiff in fact having Thereafter, the petitioner brought sought permission for filing of ejectment the second suit for the possession, the plaint application, he could not file suit for whereof has been rejected by the learned possession--- Contention of plaintiff was that trial Court vide order dated 28-3-2006, on notwithstanding the request for filing of the ground that the petitioner in fact had ejectment application, the court had asked for filing of an ejectment application permitted plaintiff to bring a fresh suit and and therefore, cannot bring a suit for the that order was to be considered and not the possession; this has also been the view of statement of plaintiff---Validity---.Plaintiff the Court of appeal. Had rightly contended that it was the order of the court which had to be looked at and 2. Learned counsel for the petitioner contends that notwithstanding as to the not the statement of plaintiff-Both courts request for the filing of the ejectment below, in circumstances, were not justified application, the Court vide order dated in passing impugned orders---Impugned 16-12-2004, has permitted the petitioner to orders of courts below were set aside and #TBS bring a fresh suit and it is the order, which is to be considered and not the statement of the petitioner.
3. Learned counsel for the respondent though has refuted the above argument, but has not been able to convince, if the bar contained in Order XXIII, rule 1, C.P.C. On account of which the impugned orders were passed by the two Courts below regarding the rejection of the plaint, is attracted to the instant matter because it is the order of the Court dated 16-12-2004, which has to be looked at and not the statement of the petitioner, thus both the Courts below have fallen in error in passing the impugned orders, which cannot sustain and requires to be set aside. In the light of the above, by allowing this petition, the impugned orders are set aside and the matter is remanded to the trial court for decision afresh in accordance with law. #TBE to the claim of petitioner against respondents in the facts and circumstances of the case had been concluded firstly through judgments and decrees of the courts below and then through subsequent order---Petitioner was estopped from raising any further claim---Counsel for petitioner was unable to identify any misreading or non-reading of evidence available on record-- Concurrent findings of two courts below were based on proper application of judicial mind and proper evaluation of evidence---If at all any amount was allegedly due from respondent and not raised at the appropriate time, petitioner should proceed against its own employees for dereliction of duty rather than hounding the respondent---Petitioner could not be allowed to take advantage of its incompetence. (P. 15421 A Mian Zulfiqar All for Petitioners.
Liaqat All Butt for Respondent.