ORDER TARIQ JAVAID, J.---This is a case of misuse of the judicial process. The respondents Nos.3 to 10 are the legal heirs of one Feroz Khan, who instituted suit for specific performance of the contract dated 15-5-1969. The suit was filed on 15-3-2001. The notices were issued and the suit was resisted by the present petitioner, who was defendant therein. The suit was withdrawn by the predecessor- in interest of the respondent Nos.3 to 10 without any permission to institute a fresh petition.
2. Thereafter the predecessor-in interest of the respondents Nos.3 to 10 filed an application for making an award given by the arbitrators as rule of Court. The application was strongly opposed by the present petitioner who in fact denied any arbitration between him and the predecessor-in- interest of the respondents Nos.3 to 10. The issues were framed and the application was fixed for recording evidence which was never produced before the Court by the then applicant, that is, predecessor-in-interest of the respondents Nos.3 to 10. Consequently the defence was closed by invoking the provisions of Order XVII, Rule 3, C.P.C., by the learned trial Court vide order dated 11-2- 2004. The order was assailed in appeal which was dismissed vide judgment dated 18-5-2004. The revision against the said judgment also failed where upon C.P. No.2499-L of 2004 was preferred which also failed. The Hon'ble Supreme Court vide order dated 11-12-2006 observed as follows:-- "The learned counsel for the respondents submits that courts below have properly appreciated the evidence on record. Learned counsel for the petitioner has failed to point out any infirmity or illegality in the impugned judgment. He further submits that matter way finally decided in the earlier round of litigation by the civil court, therefore, application for appointment of arbitrators is not in consonance with the mandatory provisions."
3. After dismissal of C.P. No.2499-L of 2004 the respondents Nos.3 to 10 once again instituted suit for the specific performance of the agreement dated 15-5-1969 relating to the same property.
4. The petitioner aggrieved of the fresh litigation filed an application under Order VII, Rule 11, C.P.C., which has been dismissed by the learned trial Court side order dated 8-10-2008. The revision against the said order also failed, hence this writ petition.
5. The learned counsel for the respondents maintained that the petitioner accepted the award given by the arbitrators and had handed over the possession of the suit-land. However, it escaped notice of the learned counsel for the respondents that this ground was available to him in earlier round of litigation. The Hon'ble Supreme Court dismissed C.P.No.2499-L of 2004 vide order dated 11- 12-2006 on two grounds, that is, the application was dismissed for the failure of the respondents to prove the factum of arbitration Proceedings, therefore, the question, of handing over possession of the suit property in terms of arbitration award also stands negated as the award has not been proved. Secondly, it was observed that the controversy stood resolved by the first round of litigation wherein the suit was withdrawn.
6. The controversy stood resolved in earlier rounds of litigation. There is no fresh ground on which a suit could be instituted by the respondents Nos.3 to 10. Learned counsel for the respondents has heavily relied upon the cases of Ghulam Rasool v. National Bank of Pakistan (1983 CLC 1556, Sim j- ud-Din v. Allah Rakha (PLD 1960 (W.P) Lahore 261, Feroze Khan v. Zaman Ali (1993 CLC 1478), Resham Jan v. Muhammad. Fazil (PLD 1981 Azad J&K 16, Irshad Ali v. Islamic Republic of Pakistan (1981 CLC 111), Muhammad Hayat v. Muhammad Mateen (1989) ALD 48) and argued that after arbitration proceedings, the possession of the suit property was handed over to the predecessor-in-interest of the present respondents as such a fresh cause of action accrued in their favour and against the petitioner.
7. I am afraid, this argument is of no avail to the respondents. As observed in para No.5 above the factum of arbitration proceedings was always denied by the petitioner and the C.P. Filed by the present respondents was dismissed by the Hon'ble 'Supreme Court.
8. In Ghulam Rasool v. National Bank of Pakistan the claim of the plaintiff was based on security documents executed much after withdrawal of a previous suit by reason whereof subsequent suit was held to be maintainable. Whereas in the present case the first suit instituted on the basis of Alleged sale dated 15-5-1969 was instituted on 15-5-2001, that too after appearance of the present petitioner and on an application of the predecessor-in-interest of the respondents, without any permission to file a fresh suit. It is pertinent to point out that no such permission was sought by the plaintiff in his application for withdrawal of the suit. The subsequent suit filed on the basis of alleged arbitration was also dismissed right up to the Supreme Court. Therefore, there is no fresh ground on which the present suit could proceed. As such the above judgment has no application on the facts of this case.
9. In Siraj-ud-Din v. Allah Rakha the earlier suit filed on the basis of a gift was dismissed on the question of limitation whereas the subsequent suit was held to be partially maintainable on the basis of inheritance which was subsequent to the dismissal of earlier suit. Similarly, in Feroze Khan v. Zaman Ali the subsequent suit was held to be maintainable the fresh cause of action had accrued which was not available at the time of filing of earlier suit. Similarly, the dictum laid down in Irshad Ali v. Islamic Republic of Pakistan is not applicable to the facts of the present case for two reasons viz. Firstly that in Irshad Ali case the earlier petition was withdrawn during pendency of the subsequent petition and secondly, because in present case- the grounds urged in third suit were available to the respondents while arguing C.P. No.2499-L of 2004 which was dismissed by the Hon'ble Supreme Court on 11-12-2006. The judgment in Muhammad Hayat v. Muhammad Mateen also does not lend any support to the case of the petitioner as the subsequent case was filed on entirely different cause. Of action supported by the documentary evidence.
10. In view of the above said observations made by the Hon'ble Supreme Court in para 4 as reproduced in para. No.2, the orders passed by both the courts below are set aside. The writ petition is accepted and the plaint is rejected under Order VII Rule 11, C.P.C., with no order as to costs..