ORDER SAGHEER AHMAD QADRI, J.---Petitioner Muhammad Saleem son of Abdul Ghafoor filed suit for declaration and issuance of injunction, which was resisted by the respondents by submitting their written statement and the same was fixed on 9-6-2009 when following order was passed by the learned trial court:- "Present counsel for the parties.
Fresh power of attorney has been submitted by M. Ghazanfer Ali Sheikh Advocate. He wants to record his statement, be recorded.
Statement of M. Ghazanfer Ali Sheikh Advocate without oath: It is stated that I want to withdraw this suit with permission to file the fresh suit on the same cause of action.
R. 0. & A.C. Yasir Hussain Khan Gadhi Dated 9-6-2009 Civil Judge Ist Class, Sahiwal.
In view of statement of learned ' counsel for plaintiff the suit in hand is hereby dismissed as withdrawn with permission to file fresh suit subject to all legal exceptions. File be consigned to record room.
Announced:-- Yasir Hussain Khan Gadhi Dated: 9-6-2009 Civil Judge 1st Class, Sahiwal.
Feeling aggrieved respondents-defendants preferred revision petition, which was heard and decided by the learned Additional District Judge, Sahiwal, who vide impugned order dated 2-8- 2010 while setting aside the order dated 9-6-2009 remanded the matter to learned trial court to proceed further in accordance with law, which is now being assailed by the petitioner through the instant writ petition.
2. Pre-admission notice was issued to the respondents and Mr. Tariq Zulfiqar Ahmad Chaudhary, Advocate submitted his power of attorney but today none has turned up on behalf of the respondents.
3. Learned counsel for the petitioner argued that impugned order passed by learned ADJ whereby order dated 9-6-2009 passed by learned trial court was set aside and suit was remanded to learned trial court is against the law and facts of the case; that impugned order was passed by the learned revisional court on the basis of surmises and conjectures; that learned revisional court did not apply its judicial mind while deciding the revision petition. Learned counsel while referring Order XXIII Rule 1 C.P.C. Argued that no specific ground is mentioned under this provision of law for withdrawal of a suit with permission to re-file a fresh one; that no-doubt learned trial court allowed the petitioner to withdraw the suit with permission to re-file fresh one and no ground was agitated by the plaintiff for withdrawal of earlier suit and to file fresh one but it is not an illegality and learned revisional court only while interpreting Order XXIII Rule 1, C.P.C. Without any lawful justification set aside the order passed by the learned trial court. Learned counsel while referring Pehlwan and others v. Haji Muhammad Murad and others (2005 SCM R 1405) argued that the Hon'ble Supreme Court of Pakistan while discussing Order XXIII Rule 1 C.P.C. Has observed that withdrawal of a suit with permission to institute another one is not restricted only to cases of formal defects. As the scope of Order XXIII Rule 1 C.P.C. Is wider enough to empower a court to grant such permission on any sufficient ground; that the learned revisional court did not exercise its jurisdiction vested in it in accordance with law, therefore, while allowing this writ petition, impugned order be set aside.
4. I have considered the arguments addressed by learned counsel for the petitioner and have gone through the record.
5. No doubt under Order XXIII, Rule 1, C.P.C. a court is empowered to grant permission to re-file fresh one after withdrawing the earlier suit filed but to get this concession a plaintiff must have to show some technical/formal defects as sufficient ground which necessitate filing of another suit. The judgment cited by learned counsel for the petitioner supports this view. If the provisions of Order XXIII, Rule 1, C.P.C. Are seen, same read as under:--
(1) Withdrawal of suit or abandonment of part of claim.
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-matters of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission 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.
(4) Nothing in this rule shall be deemed to authorize the Court to permit one of several plaintiffs to withdraw without the consent of the others."
By mere reading of the above mentioned provisions as provided under Order XXIII, Rule 1(2)(b), C.P.C. It is clear that a plaintiff if wants to withdraw a suit with the permission to re-file fresh suit then sufficient grounds must have been made out before a court and after taking into consideration the same learned trial court may pass an appropriate order in this respect. Here in this case, if the order dated 9-6-2009 passed by learned trial court is seen, only statement of learned counsel for the petitioner was recorded wherein it was nowhere mentioned the reasons or any technical defect which required withdrawal of earlier suit and filing of the fresh one, even no notice whatsoever was issued to the learned counsel for the defendants in this respect nor it is shown if an opportunity was granted to the respondents' counsel to bring on record the point of view of the respondents in this context. I have gone through the judgment passed by the learned ADJ, which is a well reasoned judgment whereby order passed by learned trial court was set aside.
6. Before parting with this order it is observed that as after the impugned remand order passed by the learned ADJ dated 2-8-2010 suit is still pending before the learned trial Court, if the petitioner- plaintiff has any necessity to withdraw the suit, he may move fresh application in this respect under Order XXIII, Rule 1, C.P.C. And the learned trial court may decide the same after providing the other side an opportunity of hearing. Resultantly, this writ petition being without any force is hereby dismissed in limine with no order as to costs..