1. ' G. SAMAR SHAH, J.-This petition which is directed against the judgment of the Lahore High Court, dated 12-12-1978, arises in the following circumstances :- ' The petitioners purchased from one Durab Khan on 31-10-1966, 27 kanals and 19 marlas of land situated at Shujahabad, District Multan. Subsequently they purchased from one Phool Khan 34 kanals. And 4 marlas of land on 24-1-1967. But both these transactions were pre-empted by Rahim Bakhsh (through two separate suits) on the ground that being owner in the estate he enjoyed the preferential right thereto whereas the petitioners did not enjoy any such right. Both these suits, which were contested by the petitioners, proceeded separately in the Court of the Civil Judge, Shujahabad, who vide his separate judgments dated 12-2-1973 dismissed them. Rahim Bakhsh, therefore, filed two appeals in the Court of the Additional District Judge, Multan, who vide his two separate judgments, dated 13-2-1978, disposed them of with this result that the appeal relating to the land purchased by Rahim Bakhsh from Phool Khan was allowed, but his other appeal in respect of the land purchased by him by Durab Khan was dismissed. Feeling aggrieved of the said judgment, the petitioners went in revision to the High Court but the same was dismissed in liming vide judgment dated 17-4-1978. Thereafter they filed a review application in the High Court under section 28-A of the Punjab Pre-emption Act but the same also was dismissed vide judgment dated 12-12-1978. It is in this background that the petitioners have come up to this Court praying for leave to appeal against the said judgment of the High Court.
2. ' The difficulty in the way of the petitioners, however, is that prior to the present petition they had filed in this Court Civil Petition No, 48-R of 1978 against the judgment of the High Court, dated 17-4- 1978. Now that petition was heard by a Bench of this Court and the orders thereon reserved. On 24- 6-1978, however, the learned counsel for the petitioners approached the learned Judges of the said Bench in Chamher and requested that he be permitted to withdraw the said petition. Accordingly the request of the learned counsel was granted and the petition was dismissed as withdrawn. It is clear from the record, however, that after the passing of the said order the petitioners went back to the High Court and filed the aforesaid review application praying therein that the judgment delivered by the High Court on 17-4-1978 should be reviewed on the ground that on the date of the institution of the suit by Rahim Bakhsh, their inter se rights were equal in view of the fact that one of the suits filed by Rahim Bakhsh in respect of the sale transaction relating to the land of Durab Khan had been dismissed by the learned . Additional District Judge. As already stated the review application was dismissed by the High Court on 12-12-1978, and the question now is whether this petition, in view of the fact the petitioners had withdrawn the previous petition filed by them against the judgment of the High Court, dated 17-4-1978, is competent.
3. ' In this behalf reference may be made to rule 1 of Order XXXVII of the Rules of this Court which reads as under :-- "(1) Rules 1, 2 and 3 of the Order XXIII in the First Schedule to the Code with respect to the withdrawal and adjustment of suits shall apply."
4. ' The relevant parts of rule 1 of Order XXIII of the First Schedule to the Code of Civil Procedure, which alone are relevant to the facts of this case, read as under :- "1.-(1) At any time after the institution of a suit the plaintiff may, as against all or any of the defendants, withdraw his suit. Or abandon part of his claim,
(2) Where the Court is satisfied-
(a) that a suit must fail by reason of some formal defect, or
(b) that there are other sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim, ' it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or abandon such part of a claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of a claim.
(3) Where the plaintiff withdraws from a suit, or abandons part of a claim, without the permission referred to in sub-rule (2), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim."
5. Now the subject-matter of the former petition filed in this Court, and which was dismissed as withdrawn at the request of the petitioners is the same which is the subject-matter of the present petition. The fact, however, is that they had withdrawn the previous petition at their own request and not on account of any permission granted to them in pursuance of an request made in that behalf that the said petition was bound to fail due to some formal defect or that there existed, other sufficient grounds for allowing them to withdraw the same with permission to institute the present petition. In this view of the matter the present petition, filed by them is clearly barred under rule 1 of Order XXXVII of the Rules of this Court. And consequently the same is dismissed.