AMIN-UD-DIN KHAN, J. --- Through this appeal the appellants have challenged the judgment and decree dated 24.2.2004 passed by the learned Additional District Judge, Liaquatpur whereby the appeal filed by the respondents-plaintiffs was accepted and order dated 6.11.2002 passed by the learned Civil Judge, Liaquatpur was set aside and the case was remanded to the Trial Court.
2. Brief facts of the case are that respondents Nos. 1 and 2-plaintiffs filed a suit for declaration on 6.7.1998 and claimed the ownership of the suit property on the basis of inheritance. During the pendency of the suit plaintiff No. 2-respondent No. 2 Mst. Bakhtan withdrew from the suit. The defendants filed written statement and the learned Trial Court framed the issues and invited the parties to produce, their evidence. During the pendency of the to the record on 18.6.2002 an application was moved by Mst. Maryam Bibi respondent No. 1 with the prayer that the file of the suit be requisitioned and date of hearing was fixed on 29.6.2002 and compromise be recorded and another application was filed wherein it was stated that Allah Bakhsh defendant No. 1 has transferred the property in her favour, therefore, she wants to withdraw the suit. It is further noted on the file that the learned Trial Court on 18.6.2002 recorded the statement of Mst. Maryam Bibi plaintiff-respondent No. 1 wherein she stated that she wants to withdraw the suit. The learned Trial Court adjourned the suit for the fixed date i.e. 29.6.2002. On 29.6.2002, the plaintiff-respondent filed another application that she be permitted to withdraw her previous application filed for withdrawal of the suit and reply was called from the defendants and after hearing the parties the learned Trial Court vide judgment and decree dated 6.11.2002 dismissed the suit on the basis of application and the statement of plaintiff Mst. Maryam Bibi dated 18.6.2002. Mst. Maryam Bibi plaintiff-respondent filed an appeal which was accepted by the learned Additional District Judge vide remand order dated 24.2.2004 and remanded the case to the Trial Court with the direction to decide the case afresh on merits in accordance with law, hence this FAO.
3. Learned counsel for the appellants contends that when plaintiff herself filed an application and prayed for unconditional withdrawal of the suit and when she got recorded her statement on 18.6.2002, therefore, the learned Trial Court rightly dismissed the suit and, states that the learned first Appellate Court fell in error while reversing tine judgment of the learned Trial Court and remanding the case.
4. On the other hand, learned counsel for the respondents-plaintiffs stated that Mst. Maryam Bibi is an c, woman aged about 80 years and is pardanasheen lady. Appellants-defendants promised her to transfer some land her favour but when they resiled from their promise, she file an application to withdraw the previous application fo withdrawal of the suit. Further stated that prayer of withdrawal of the suit was not implemented, therefore prayer for withdrawal of the suit could have been withdrawn at any time before its implementation and stated that on the next date of hearing i.e. 29.6.2002 the suit was still pending when the application for withdrawal of the previous application for withdrawal of the suit was filed. Therefore, learned Tr Court fell in error while refusing the second application an dismissing the suit. He stated that the findings recorded b the first Appellate Court are in accordance with law.
5. I have heard the arguments advanced by the learned counsel for the parties and have examined the record with their able assistance.
6. It is not denied that the statement made by the plaintiff-respondent No. 1 was not yet acted upon and it is not case of the appellants that in lieu of the prayer for withdrawal of the suit, they compensated in any way to the plaintiff-respondent No. 1. Therefore, in these circumstances, the plaintiff-respondent No. 1 was at liberty to withdraw from her previous statement which was not yet acted upon and on the basis of which the learned Trial Court had not yet passed any order, therefore, the order passed by the Trial Court was against the law. The learned first Appellate Court had not committed any illegality by reversing the order passed by the learned Trial Court. There is no defect in the remand order passed by the first Appellate court. Learned counsel for the appellants has failed to make