. CH. SHAHID SAEED, J. --- Through the instant civil revision petitioners have challenged the impugned judgment dated 15.07.1981 passed by learned Addl. District Judge Faisalabad by way of which appeal filed by the respondents was accepted and they were permitted to withdraw the suit with permission to file fresh suit on the same cause of action subject to cost of Rs. 250/- and their suit was also dismissed as withdrawn.
2. Brief facts of the case are that respondents filed a suit for declaration against the petitioners on account of some agreement and the claim of the respondents was that on the basis of said agreement they are entitled 1/2 share of the property in dispute. The said suit was contested by the petitioners by submitting their written statement. Issues were settled and both the parties got recorded their evidence. Ultimately the learned Trial Court dismissed the suit of the respondents on merits. They preferred an appeal which was allowed and on the statement recorded by learned counsel for the respondents the impugned judgment & decree of the learned Trial Court was set aside and the suit of the respondents was dismissed as withdrawn with permission to file a new suit. Feeling aggrieved by the said judgment petitioners have preferred the instant civil revision.
C.L.R.
3. Learned counsel for the petitioners contends that the judgment passed by the learned Appellate Court is against law and facts and also based upon surmises and conjectures: that there must be some formal defects in the plaint for the withdrawal of the suit but the learned Addl. District Judge without pointing out any formal defect in the plaint has dismissed the suit of the respondents as withdrawn with permission to file a fresh suit which is against the basic, principle of law. Further argued that learned lower Appellate Court gave the permission to withdraw the suit 12 years after Its institution on the ground that the new suit will not be barred by time is also against the law and in this way the learned Judge has travelled beyond its jurisdiction.
4. On the other hand. Learned counsel for the respondents has supported the impugned judgment of the learned Appellate Court.
5. Arguments heard. Record perused.
6. Undeniably, the impugned order was passed in presence of learned counsel for the petitioners before the learned Appellate Court, therefore, the contention of learned counsel for the petitioners that no notice was given to the petitioners before granting permission to the respondents to file fresh suit has no force and the same is repelled. Admittedly, after passing the said order respondents have filed a suit which is pending before the learned Trial Court and the fate of the said suit would be decided by the said Court. No doubt, a plaintiff can withdraw the suit at any stage but the permission to file the fresh suit is granted only under some peculiar circumstances if some formal defects are found in the suit of the plaintiff. Learned Appellate Court has clearly held in its order that there were some formal defects in the suit of the plaintiffs. Therefore, the learned Judge has rightly granted permission to the respondents to file a fresh but the observation of the learned Appellate Court that question of limitation would not be involved in the fresh suit is contrary to law and the learned Judge has travelled beyond its jurisdiction by giving such-like observation, so to the extent of such findings of the learned Appellate Court the impugned judgment is modified and it is held that the question of limitation would be decided by the learned Trial Court first after framing a preliminary issue in this regard in the fresh suit which is still pending adjudication. However, the impugned order to the extent of withdrawal of suit with permission to tile fresh suit is upheld. With the said observation the instant civil revision is disposed of.
Civil revision accordingly.