ZIA PARWAZ, J.---1 and 2. This matter has been called repeatedly since morning but in spite of being taken up neither any appearance has been made by the plaintiff nor by his counsel nor any intimation has been received on their behalf. It appears that the office raised the following objections:-
(i) It appears that the suit is not maintainable as provided under sections 21, 23 and 28 of the Financial Institutions (Recovery of Finances) Ordinance, 2001.
(ii) It appears that prayer clause (v) is barred under section 56(a) of the Specific Relief Act.
(iii) Let the copy of the plaint to be filed in respect of the banking Suit being Suit No.107 of 2006 filed by the plaintiffs before Banking Court No.1, Karachi as averred in Part-II of the plaint. Today Miss Fouzia Rashid, learned counsel for the defendant, after referring to the documents on record contended that the suit is not maintainable on the ground that the plaintiff instituted an earlier suit for the same cause of action bearing Suit No.107 of 2006 before the Banking Court No.1 at Karachi. She has also cited case-law in support of her contentions on the cases of Gul Sahib Din and others v. Malik Sultan Jan and others PLD 1982 Supreme Court 254; Hashim Khan v. National Bank of Pakistan PLD 2001 Supreme Court 325; Ghulam Rasool v. Shana 2001 M LD 661; Messrs Artisans Craftsman Rehabilitation Society v. Mst. Asif Jahan Begum 1990 M LD 1702; Abdul Malik v. Muhammad Urfan 1989 CLC 2363 and Ch. Muhammad Ali v. Sardar Muhammad Kazim Ziauddin Durrani 1999 CLC 1437.
It has been held in the case of Gul Sahib Din (supra) that:-- "4. We have examined the contentions of the learned counsel and come to the conclusion that the application for permission to withdraw the suit contains no particulars regarding the formal defects in the suit, and all what was stated therein was that in the plaint there were formal defects which may result in detriment to the rights of the petitioners. Secondly in the suit, the land under certain Khasra Numbers, which were in possession of the petitioner as mortgagees over a period of 60 years and so it was necessary to make the mortgagors parties to the suit and there were other co-sharers in the Shamlat who should also have been made defendants in the case. Thus the finding of the learned Single Judge, so far as the application for withdrawal is concerned, is correct and we do not think there is any reason to interfere with the order of the High Court."
It has also been held in the case of Hashim,Khan (supra) that:-- "The withdrawal order passed by the Court mentioned hereinabove further shows that withdrawal simpliciter was without granting permission to file fresh suit. Under the circumstances, such withdrawal under above-mentioned orders debars institution of any fresh proceedings concerning such matter or part thereof. It is borne out from the record that payment of Rs.24,40,110 was made in full and final settlement of the total liabilities accruing in connection with deposit made by the appellant with the respondent-Bank."
It is further held that:-- "11. Subsequently in the suit filed by the appellant no fresh cause of action had accrued to him. The statement/application filed by the appellant as well as the order of the Court allowing withdrawal of the suit clearly shows that the appellant agreed to compromise with the bank and relinquished his other claim by filing statement for full and final settlement of his claim. It has rightly been pointed out by the learned counsel for the respondent that the appellant relinquished his claim and he did not reserve the right to claim compensation for filing the suit, as such his claim was not allowed by the learned High Court."
It has also been held in the case of Ghulam Rasool (supra) that:-- "It is settled proposition of law that provisions of C.P.C. Are applicable in the Constitutional proceedings as per principle laid down by the Honourable Supreme Court in Hussain Bakhsh's case PLD 1970 SC 1. The object of rule 1 of Order =II is to prevent a plaintiff from filing a fresh suit after having failed to conduct the first one with care and diligence. In arriving this conclusion I am fortified by reported judgment of the Privy Council, 1914 P.C.
249. It is settled principle of law in view of the aforesaid provisions of law that plaintiff/petitioner has the right to withdraw a suit whenever he desires but cannot file a fresh suit on the same subject- matter."
It has also been held in the case of Messrs Artisans Craftsmen, Rehabilitation Society (supra) that:- "Not only this, but in my opinion, the language of the above provisions also implies that the sanction for filing fresh suit is to be obtained not only during the pendency of the suit, but also before the fresh suit is instituted. It is quite clear that when the suit was instituted (on 14-6-1989), no such sanction was available. Hence the institution of the suit was defective. It was only when an application under Order VII, rule 11, C.P.C. Was filed in this suit that an application was made to circumvent the bar imposed by the above provisions. It is, therefore, mala fide as well. Moreover, the order of the learned Senior Civil Judge only allows simple withdrawal and does not grant permission for filing of the fresh suit and this suit is, therefore, barred under sub-rule (3) of rule 1 of Order XXIII, C.P.C., as the present suit is in respect of the same subject-matter and no permission to file fresh, suit was obtained."
It has also been held in the case. Of Abdul Malik (supra) that:-- "10. A bare reading of the provisions quoted above would reveal that the withdrawal of suit under sub-rule (2) of rule 1 of Order XXIII is permissible only when the Court is satisfied that the suit is most likely to fail by reason of some formal defect or there exist other sufficient grounds such order is to be passed on such terms as the Court thinks fit. Expression on such terms as it thinks fit, in my considered view, contemplates as order after affording opportunity of hearing the other party which is going to be affected by such permission of withdrawal of the suit and accordingly the permission shall be contingent on such terms as the Court thinks fit as a natural corollary.
11. It can also be said with some amount of certainty that it would be possible only after hearing the opposite party, that the requisite satisfaction of the Court as per sub-rule (2) of rule 1 of Order XXIII, C.P.C. Can be manifested more objectively and the probability cannot be ruled out where the requisite permission is refused in a case particularly where certain valuable rights under the law accrued to the opposite party which are likely to be affected adversely. The instant case can be cited as a most appropriate example in this behalf'.
The record by an order dated 26-6-2006 passed on application under section 15(12) of the Financial Institutions (Recovery of Finances) Ordinance, 2001, the learned Court ordered the plaintiff to deposit a sum of Rs.30,00,000 within fifteen days with the Nazir of that Court and in case of default the defendant may auction the property. Instead of depositing the amount, plaintiff withdrew the suit. The Court did not allow the plaintiff with regard to permission to file fresh suit.
Subsequently, Judicial Miscellaneous Application No.1 of 2006 was filed under section 15(11) of Financial Institutions of the said Ordinance. The Judicial Miscellaneous Application was filed with the same prayer by the plaintiff and dismissed as withdrawn vide order dated .15-8-2006.
Present suit was instituted on 16-8-2006, which is apparently based on the same cause of action. It arises out of the same demand for the facilities extended to the plaintiff which were subject-matter of the earlier suit and J.M. Reliance is also placed on unreported judgment of this Court in Suit No.B- 25 of 2006, wherein, while differentiating between the provisions of Order XXXIX, rules 1 and 2 has distinct from the provisions of section 15(12) of the said Ordinance, whereby, specific procedure setting forth the pre-condition of the grant of an order restraining the Bank from disposal of property has been considered. I am in respectful agreement with the view taken by the learned Single Judge of this Court in the light of which C.M.A. No.6805 of 2006 is not maintainable.
3. As for the application for leave to defend and in view of the fact taken in the application, as the maintainability of the suit has already been discussed along with office objection, according to which the suit is not maintainable. The suit is hereby dismissed along with listed application. In view of the office objections, therefore, no further orders on the application for leave to defend are required.