1. Through the instant petition, the petitioner has assailed the order dated 12-8-1991 passed by the Member, Board of Revenue (Colonies), Lahore whereby he allowed the appeal filed by Muhammad Zaman, respondent No.2.
2. This petition came up for hearing on 29-9-1991 when report and para wise comments were called for from respondent No.3. The comments were submitted in the Court on 11-4-1992. Today Kanwar Akhtar Ali, Advocate and Mr. M.M. Jamal, Advocate arc present in the Court and on their request, are allowed to raise a preliminary objection regarding competence of the present petition.
2. They pointed out that the petitioner had filed another Writ Petition (No.2268/1991) in which the same order dated 12-8-1,991 passed by the Member, Board of Revenue (Colonies) was assailed and the said petition was dismissed as withdrawn. In support their preliminary objection learned counsel for respondent No.2 have placed reliance on the following judgments:-- (1)Abdul Rahim. Khan v. Town Committee, Makhdoompur Pahooran and others 1985 CLC 2805.
3. (2)Muhammad Jamil etc. v. Dy. Sett. Commissioner, etc. 1986 CLC 2425; and (3)Abdul Rehman v. Member (Revenue), Board of Revenue, Punjab, Lahore and 2 others PLD 1989 SC 246.
4. Meeting the objection, the learned counsel for the petitioner urged that the earlier petition was not decided on merits and that the present petition was competent. He placed reliance on the cases of (1)Haji Abdul Rashid Sowdagar v. S.M. La- lita Roy and others PLD 1959 SC (Pak.) 287.
5. (2)Karim Gul and others v. Shahzad Gul and another 1970 SCM R 141.
6. (3)Moula Bakhsh v. Muhammad Zahid and another PLD 1990 SC 596; Muhammad Bakhsh v. Abid Hussain Shah and 6 others 1991 M LD 571.
7. 1 3. Admittedly the ealier petition was also filed to assail the order dated 12-8-1991 passed by the Member, Board of Revenue (Colonies), Lahore. In the ealier Writ Petition (No.2268/1991) the material fact about the institution of a civil suit involving the same subject-matter was suppressed by the petitioner.
8. This fact per se was sufficient to warrant dismissal of the writ petition from the order dated 7-9-1991 passed by this Court dismissing the writ petition as withdrawn. I find that the petitioner's learned counsel was confronted with the non-disclosure of the institution of the civil suit and the unanimous findings of 3 Courts regarding non-filing of an application by the petitioner for renewal of his tenancy as well as the fact that the petitioner had neither filed original nor certified copies of relevant documents which led him to withdraw the petition. The petitioner's learned counsel did not seek permission to file a fresh petition 1 and appears to have withdrawn it unconditionally. The provisions of Civil Procedure Code apply to writ proceedings as held in the case of Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others PLD 1970 SC 1. By virtue of the provisions of Order 23, Rule 3 of the C.P.C. The plaintiff is precluded for instituting a fresh suit where he withdraws a suit or abandons part of the claim without permission to file a fresh one on thesame subject- matter. In the present case, the tenor of the order dated 7-9-1991 passed by this Court dismissing the earlier petition as withdrawn shows that the 1A Court was not prepared to admit the petition in view of the unanimous findings of the Collector, the Commissioner and the Member, Board of Revenue that the petitioner had not filed any application for renewal of the tenancy. Moreover, the Court had noticed that the petitioner had not disclosed the institution and pendency of a civil suit on the same subject-matter. It appears that the petitioners learned counsel opted to withdraw the suit unconditionally in order to avoid some observation of the Court which might have prejudiced the civil suit or cast aspersions on his conduct and that of the petitioner. Now he cannot be permitted to reagitate the same matter through another constitutional petition. This view finds support from the judgments in the cases of Abdul Rahim Khan, Muhammad Jamil etc. And Abdul Reliman relied upon by the learned counsel for respondent No.2 which I respectfully follow. The judgments relied upon by the petitioner's learned counsel are clearly distinguishable. The case of Haji Abdul Rashid Sowdagar relates to consequences of non-fulfillment of terms incorporated in the order permitting withdrawal of a suit with liberty to institute a fresh one. It was held that without fulfilling the conditions laid down in the order there is no proper suit before the Court. This judgment does not relate to a situation where a suit is withdrawn unconditionally and thereafter, a fresh one is instituted. In the context of withdrawal of a suit with a prayer for permission to bring a fresh one it was held, "The withdrawal is complete the moment an order to that effect is recorded and the right to bring a fresh one follows from the withdrawal so permitted". The expression "withdrawal so.
9. Permitted" obviously refers to the permission to institute a fresh suit. In Karim Gul's case it was laid down that while granting permission to withdraw a suit the Court cannot at the same time refuse permission to institute & fresh suit. In the said precedent the plaintiff had himself applied to withdraw the suit and sought permission to bring a fresh one. It was obviously not a case of unconditional withdrawal of the suit. A similar view was expressed in the case of Moula Bakhsh in which the appellant had moved an application under XXIII, Rule I of (he C.P.C. For withdrawal of the suit due to some technical defects and had also sought permission to file a fresh one. The learned District Judge accepted the application for withdrawal of the suit but did not pass any order regarding permission to file a fresh one. The said order was upheld by the High Court in revision which was set aside by the Hon'ble Supreme Court in the light of the earlier judgments of the Supreme Court in the cases of Haji Abdul Rashid Sowdagar and Karim Gul and another. Thus it is evident that in all the four judgments relied upon by the petitioner's learned counsel permission to bring a fresh suit was clearly sought at the time of withdrawal of the ' suit. However, in the instant case the withdrawal was unconditional and no permission to bring a fresh petition was sought, probably due to the reason that the first petition otherwise merited dismissal.
10. For the foregoing discussion, I hold that the petitioner is precluded to institute the present petition in view of the unconditional withdrawal of the earlier writ petition involving the same subject- matter. This petition is therefore, dismissed as being incompetent.
11. A.A./M-477/L