1. WAHEEDUDDIN AHMAD, J.,-The petitioners, instituted, a civil suit on the 26th September 1969, in the Court of Civil Judge, Pakpattan, Camp Dipalpur, District Sahiwal, for a declaration that they are owners of Plot No. 52/143 and shops Nos. 54./1,43., 557143 and 56/143 and the Town Committee was not competent to recover the rent for the same. In their written statement, the respondent raised the preliminary objections as under :-
(i) By admitting tenancies through rent deed the plaintiffs stood estopped from challenging defendant's title.
(ii) Plaintiffs having obtained different plots, separate suits were essential.
(iii) Having admitted the land to be evacuee property, the plaintiffs also claimed to be its owner but absence of allotment in their favour, leads to inconsistencies in pleading.
(iv) For jurisdiction not having been mentioned, the suit merit dismissal.
2. On the 17th November 1970, when the case was fixed for argu--ment, the petitioners submitted an application for withdrawal of the suit with permission to file a fresh one on the following grounds :-
(i) Technical defects in the suit as was evident from preliminary issue.
(ii) There was sufficient cause for returning the suit permitting a fresh.
3. The application was allowed and the petitioners were permitted to file a fresh suit on payment of Rs.30. Thereupon, the peti--tioners instituted a fresh suit on the 17th November 1970: The respondent challenged this order in Civil Revision No. 44 of 1971. A learned Single Judge of the Lahore High Court, by judgment dated the 8th November 1971, accepted the petition, set aside the order dated the 17th November 1976 and directed the suit to be decided according to law. The petitioners seek permission to file an appeal against the said judgment.
4. Ch. Muhammad Anwar Buttar learned counsel for the petitioners, has contended that although there may not be any formal defects in the suit there were other sufficient reasons to allow the petitioners to seek permission to withdraw the suit with permission to file another suit. The contention of the learned counsel has not impressed us. After going through the record, we are satisfied that the learned trial Judge did not apply his mind to the facts of the present case. The only reason given by the petitioners was that the suit must fail by reason of formal defects. The following preliminary issues were framed on the 26th October 1969 :-
(i) Whether the plaintiffs were estopped from bringing the suit?
(ii) Whether the suit is bad for misjoinder of parties and causes of action?
(iii) Whether the suit is bad for inconsistent pleas, if so, to what effect?
5. These issues were not of formal character. They go to the root of the case and, therefore, merely on this ground the trial Judge was not competent to grant permission to file another suit. In our opinion, the High Court has exercised the discretion properly in the case. No exception can be taken to the view taken by it. The petition is dismissed.