' MUHAMMAD AZAM KHAN, C.J.---The instant petition for leave to appeal arises out of the judgment of the High Court dated 29th August, 20'11, whereby appeal filed by Muhammad Shafi, respondent, has been accepted and the judgment of the Additional District Judge, Muzaffarabad, dated 12th August, 2009, has been set aside and order and decree passed by the trial Court on 11th July, 2009 is restored.
2. The necessary facts for the disposal of the petition for leave to appeal are that the petitioner filed a declaratory suit with the prayer of consequential relief to the effect that he is owner of the land measuring 3 kanals, 17 marlas, previous Survey No. 578, new Survey Nos. 1106 and 1107, situate in village Chatter Domel, on the strength of decree passed by the Civil Court on 6th February, 1989 and sale-deed allegedly executed by his father in respect of the said land in 1987 is fake, fictitious, without consideration, without possession, based on fraud and conspiracy, illegal, inoperative on the rights of plaintiff and liable to be set aside. A prayer for correction in the Revenue Record was also made. It was further prayed that the order for dispossession passed by the Development Authority on 17th December, 2007 is also against law. The defendant-respondent No. I filed written statement and specifically alleged that the land was purchased by him from the father of the plaintiff, petitioner herein, who challenged the said sale-deed by way of a civil suit. The suit was compromised. The defendant paid. Rs.59,000, the remaining amount, in the Court. The suit was dismissed as having been compromised under Order XXIII, Rules 1 and 2 of the Code of Civil Procedure, after the dismissal of first suit, new suit is not competent. The plaintiff filed replication.
Issues were framed. In the meantime, two other suits were filed in the Court in respect of the same land. The trial Court, after framing issues, dismissed the suit on the ground of estoppel under Order VII, Rule 11 of the Code. The petitioner filed an appeal in the Court of District Judge, Muzaffarabad, which was entrusted to the Additional District Judge. The learned Additional District Judge, Muzaffarabad, vide order dated 12th August, 2009, accepted the appeal, set aside the order passed by the Civil Judge/ Traffic Magistrate, Muzaffarabad, dated 11th th July, 2009 and ordered that all the three suits be' consolidated and tried together. The respondent challenged the judgment of the Additional District Judge by way of appeal in the High Court. A learned single Judge in the High Court accepted the appeal, set aside the judgment of the Additional District Judge, Muzaffarabad, restored that of the trial Court, ordered for dismissal of suit filed by Muhammad Maqbool, petitioner herein, and for consolidation and decision of two other suits.
3. Mr. Muhammad Yagoob Khan Mughal, counsel for the petitioner, argued that the judgment of the High Court is not maintainable. The petitioner filed suit for perpetual injunction against the respondent on the ground that he is owner of the land and sale-deed allegedly executed by his father is fake, fictitious, based on fraud and inoperative on the rights of the petitioner 'and liable to be set aside. He contended that the respondent in his written statement has taken the position that his father had challenged the said sale-deed through a suit in 1988. He is in possession of the land.
The father of the plaintiff filed a suit in the Court but subsequently the suit was compromised. A sum of Rs.59,000 was paid to the father of the plaintiff, petitioner herein. The petitioner, repudiated the claim of the defendant and took the position that no suit was filed and no compromise was effected. He alleged that this is a question of fact whether the suit was filed by his father or not and that a compromise was effected between the parties. It is pure question of fact which cannot be resolved without recording evidence. The order passed by the, High Court is not maintainable. He contended that the question needing inquiry into the facts cannot be resolved while exercising powers under Order VII, Rule 11 of the C.P.C. He requested for grant of leave.
4. While controverting the arguments, Kh. Muhammad Nasim, counsel for respondent No. 1, argued that the judgment of the High Court is perfectly legal. The respondent filed a copy' of the sale-deed which finds part of the record of this Court as Annexure "RA". This sale-deed was executed by the father of the petitioner in favour of respondent No.1 on 10th August, 1987. His father challenged this sale-deed by way of a civil suit on 29th September, 1988 which forms part of the record of this Court as Annexure "RB". After receiving an amount of Rs.59,000, the father of the plaintiff, petitioner herein, filed a compromise application in the Court. His statement was recorded in the Court and on the basis of said compromise, his suit was dismissed. The said application, along with the statement of father of the plaintiff-petitioner, is a part of the record of this Court with the caveat as Annexure "RB! 1". The learned counsel further argued that the petitioner filed replication. He has not denied the filing of previous suit in the replication: Under Order XXIII, Rules 1 and 2 of the C.P.C., the new suit in presence of dismissal of previous suit, is not -maintainable. He referred to a ease titled Karamat Al! Khan and another v. Sardar All and -29 others PLD 2001 SC (AJ&K) 30.
5. I have heard the learned counsel for the parties and perused the record. It is evident from the record that the petitioner filed a declaratory suit along with perpetual injunction in respect of land measuring 3 kanals 17 marlas, comprising previous Survey No. 578, new survey Nos. 1106 and 1167.
Situate in village Chatter Domel. The respondent-defendant, in his written statement, categorically took the stand that the land in dispute was sold by the father of the plaintiff-petitioner through sale-deed executed on 10th September, 1987. The respondent has attached a copy of the sale deed as Annexure "RA" along with caveat. 1 have perused the said sale-deed. According to the plaintiff, the land measuring 3 kanals, 17 marlas, Survey No. 578 situate in village Chatter Domel is in his ownership and sale-deed allegedly executed by his father is fake, fictitious. A perusal of the copy of the sale-deed reveals that Muhammad Ayub son of Sher Zaman, sold the suit-land comprising Survey No.587. Measuring 3 kanals, 17 marlas to respondent, Muhammad Shafi son of Kh All Muhammad against a price of Rs.300,000. Later on the said Muhammad Ayub, father of the defendant-petitioner, filed a declaratory suit along with prayer of perpetual injunction against Muhammad Shafi in the Court of Civil Judge, Muzaffarabad, on 29th September, 1988 on the ground that an amount of Rs.59,000 was to be paid. Other amount of Rs.240,000 was paid. During the pendency of the suit, the parties entered into a compromise and an application for compromise was filed in the Court on 1st September, 1990. The statement of Muhammad Ayub was recorded wherein he admitted that he had received Rs.19,000 from the respondent out of the Court and Rs.40,000 in the Court. He was identified by one Khizar Mehmood Qureshi, Prosecuting Officer, Muzaffarabad. Four marginal witnesses were also mentioned. After recording the statement of Muhammad Ayub, the trial Court dismissed the suit on 30-10-1990.
6. The plaintiff-petitioner claims to be son of Muhammad Ayub. He stepped into the shoes of his father. Under Order XXIII, Rule 1 of the Code, a plaintiff can at any time withdraw from the suit without prior permission of the Court but if he wants to file a fresh suit, he has to make an application under Rule 2 of Order XXIII for withdrawal of the same on the ground of some formal defect or any other error. The purpose of Rule 2 is to prevent the plaintiff from filing fresh suit after having failed to conduct the first one with care and diligence. However, a plaintiff has a right to withdraw a suit whenever he desires but he cannot file fresh suit on the same subject without permission of the.Court.
7. A perusal of the sale-deed dated 10th August, 1987, suit .Filed on 29th August, 1988, application for compromise and the statement of father of the plaintiff-petitioner recorded on 1st September, 1990, leaves no doubt that the father of the plaintiff-petitioner withdrew his suit through compromise without the permission to file a fresh suit and when a plaintiff withdraws his suit without permission- to file a fresh suit, he cannot file fresh suit. Therefore, the suit filed by the plaintiff- petitioner was not maintainable.
' The result of the above discussion is that no legal question is involved in this petition for leave to appeal, it is hereby dismissed with no order as to costs.