' MUHAMMAD DAUD KHAN, J.--- Through this constitutional petition, the petitioners have assailed the order of learned Zilla Qazi, Dir Upper, dated 27-2-2012, vide which the revision petition filed by the respondents/defendants against the order of learned Illaqa Qazi, dated 19-4-2011 was accepted, application under Order VII Rule 11 of C.P.C. Was allowed and plaint was rejected under Order VII, Rule 11 of C . P. C .
2. The brief but necessary facts forming the background of instant controversy are that initially Mst.
Yasmin, the present petitioner, had filed a suit for recovery of seven 'Tola' gold against Mst. Nahid Bibi. Said Mst. Nahid Bibi contested the suit by submitting written statement and out of divergent pleadings, the then learned trial Court framed issues. During the course of evidence of the parties, said Mst. Nahid Bibi was died. On this score, the suit was voluntarily and unconditionally withdrawn by the plaintiff vide order dated 14-10-2009 of the learned Senior Civil Judge, Dir Upper. After a period of one year, the present petitioners-filed instant suit on 30-11-2010 claiming the said relief which was sought in the earlier suit, but this time father, mother and brothers being legal heirs of deceased Mst. Nahid Bibi were arrayed as defendants. The respondents/defendants submitted written statement and in preliminary objections raised objection with regard to maintainability of suit being barred by law. In this respect, the respondents also submitted application under Order VII, Rule 11 of C.P.C. For rejection of the plaint, which was replied to by the petitioners. The learned trial Court after hearing both the sides turned down the application vide order dated 19-4-2011.
Aggrieved by the afore-said order, the respondents submitted a revision petition before the learned Zilla Qazi, Dir Upper, who vide judgment dated 27-2-2012, accepted the same, set aside the order of trial Court and consequently rejected the plaint under the provision of Order VII, Rule 11, C.P.C. Hence; present writ petition.
3. The learned counsel for the petitioners contended that barring clause of Order XXIII Rule 1 of C.P.C. Would apply when the parties to the suit are same; that the petitioners/plaintiffs never withdrew their previous suit against the present respondents, nor they were arrayed as defendants in that very suit, so there was no hindrance in filing a fresh suit against the present respondents- defendants.
4. The perusal of the record shows that these subject-matter of seven 'Tola' gold in both the suits is the same. Paras 1 and 2 of the subsequent plaint revealed that this suit was instituted against the respondents/defendants in the capacity of legal heirs of Mst. Nahid Bibi deceased for same cause of action. Under Order XXIII, Rule 1 of C.P.C., the plaintiff can withdraw the suit during the proceeding of the case at any stage without the permission of Court, but if the plaintiff withdraws the suit without getting the permission of the Court to institute fresh suit, then he cannot institute subsequent suit for on the same subject-matter or such part of the claim. For the convenience, the relevant law is reproduced as under:--- ' Order XXIII ' WITHDRAWAL AND ADJUSTMENT OF SUITS 1. Withdrawal of suit for abandonment of part of claim.
(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-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.
The present petitioners had withdrawn the previous suit unconditionally, voluntarily and without getting the permission of the Court to file a fresh suit. The present suit come within the embargo under the abovementioned law, therefore, the instant suit is barred by law under Order VII, Rule 11(d). In this respect, the apex Supreme Court of Pakistan in a judgment reported in PLD 2001 Supreme Court-325, Hashim Khan v. National Bank of Pakistan, Head Office at I. I. Chundrigar Road, Karachi and Branch Office at M.A. Jinnah Road, Quetta", has held that:--- "The withdrawal order passed by the Court mentioned hereinabove further shows that withdrawal simpliciter was without granting permission to file fresh suit. Under the circumstances, such withdrawal under abovementioned orders debars institution of any fresh proceedings concerning such matter or part thereof."
' Learned counsel for the petitioners was unable to point out any illegality or material irregularity in the findings of learned appellate Court which does not call for any interference in constitutional jurisdiction of this Court. Hence, this petition being meritless, is dismissed in limine.