' IBAD-UR-REHMAN LODHI, J.---The revision petition is still at pre-admission stage but on account of long pendency as the same has been filed in the year 2007, with the concurrence of learned counsel for the parties, this revision petition is being heard as Pacca case today.
2. In a suit for permanent injunction which was pending before the learned trial Court, the present petitioner moved an application under Order XXIII, Rule 1, C.P.C. Read with Section 151, C.P.C, but in view of contents of the same, it contained two distinct prayers, one for deletion of defendant No,2 from the array of defendants and that was to be considered an application under the provisions of Order I Rule 10, C.P.C., whereas the other prayer was made to withdraw the suit with permission to file a fresh one. The learned trial Court vide order dated 15-2-2007 acceded to the request of the applicant/petitioner for deletion of defendant No,2 from the array of the parties to the suit but dismissed the application seeking permission to withdraw the suit with further permission to file a fresh one.
3. The learned counsel for petitioner, by placing reliance on the case of Kulsoom and another v.
Trustees of Port of Karachi through Chairman K.P.T., Karachi and 2 others (2002 SCM R 718) and Raja Bashir Ahmad Khan v. Azad Government and another (1998 CLC 213) has argued that the learned trial Court was supposed to either reject the application in toto or accept in the same manner. The piecemeal disposal is not in accordance with law.
4. In both the reported matters, he application moved under the provisions or Order XXIII Rule 1, C.P.C. Was partly accepted by the learned trial Court by permitting the withdrawal of the suit but did not accede to the remaining prayer whereby the permission to the fresh one was also sought for and the Hon'ble Courts have held that for the reasons that the application was one and indivisible, the learned trial Court could not accept one prayer and reject the other.
5. In the case in hand, the position altogether is different. The petitioner in the application has made two distinct prayers, one under Order I Rule 10, C.P.C. And the other one under Order XXIII, Rule 1, C.P.C. The prayer as a whole within the meaning of Order I Rule 10, C.P.C. Was allowed whereas the other one under Order XXIII, Rule 1, C.P.C. Was rejected in its totality. The relief claimed for in the application cannot be considered as one and indivisible. The application moved for withdrawal of suit with permission to file fresh one is completely silent as to any justification, reason or formal defect which ought to be remove by filing a fresh suit and were not possible to be introduced by way of amendment in already pending plaint. In view of Order XXIII, Rule 2(b) C.P.C. The existence of sufficient grounds is condition precedent for allowing the plaintiff to institute a fresh suit and as noted earlier the application discloses no justification for extending permission to the petitioner to file a fresh suit on the subject matter. The learned trial Court was thus right in refusing the permission to the petitioner to withdraw the suit with permission to file a fresh one and thus court finds no exception warranting interference in the well reasoned order of the learned trial Court. No illegality has been attributed to the learned trial Court while passing the impugned order.
6. For what has been discussed above, this petition having no force is therefore dismissed.