' Mehdi Khan predecesor-in-interest of the petitioners filed a suit against the respondents Mst.
Gohran widow of Ghulam Muhammad seeking declaration to the effect that a deed of will registered on 8-7-1972 executed in favour of respondent No,1 by Ghulam Muhammad deceased was forged and not executed by the deceased and, hence, is null and void and will not affect the rights and interest of the plaintiff who is the sole legal heir of the deceased. This suit was dismissed as withdrawn vide order dated 4-10-1974. A certified copy of this order has been placed by the petitioners at page 35 of this petition. The order is reproduced as under:- ' Rawalpindi. District.
' In the Court of Ejaz Muhammad Chaudhrai, Civil Judge, Rawalpindi.
' Suit No,........ 449 ' Date of Institution. 17-7-1972 Date of Decision. 4-10-1974 ' Village....... Dhoke Gujari, ' Tehsil---- Rawalpindi ' Goshwara No...... Nil.
' Mchdi Khan son of Nadhoo Khan, Caste Gujar, resident of Dhoke Gujri, Tehsil and District Rawalpindi--Plaintiff. versus ' Zaman Ali son of Hayat Khan, Caste Gujar, resident of Dhoke Gujri, Tehsil and District Rawalpindi.
(2) Mst. Gauhran widow of Ghulam Muhammad, resident of Dhoke Gujri, Tehsil and District Rawalpindi.
3. Mst. Bhagan, resident of Dhoke Gujri, Tehsil and District Rawalpindi--Defendants.
' Suit for declaration that the will registered on 8-7-1972, is forged and is not executed by the deceased Ghulam Muhammad and is null and void and not affecting the rights and interests of the deceased legal heir, the plaintiff and in consequential relief. The defendants are asked not to claim any right whatsoever in respect of immovable properties in Dhoke Gujri, Tehsil Rawalpindi of the deceased by perpetual injuction. {{URDU TEXT}} ' Subsequently after the death of Mehdi Khan deceased, the petitioners who arc his legal heirs filed one other Suit No,424, dated 5-6-1980 seeking declaration to the effect that the mutation on the basis of the will referred to above sanctioned by the Assistant Collector and confirmed in appeal by the Commissioner, Revenue vide order dated 14-12-1980 as well as the will may be declared to be illegal and further that the respondent No,2 was divorced by Ghulam Muhammad during his lifetime, therefore, she could not have inherited him. A certified copy of the plaint of that suit has been placed on record of this revision petition at page 25 of the paper book. The prayer made in this suit as reflected in the plaint of the suit referred to above is reproduced as under: "It is, therefore, humbly prayed that a decree for declaration to the effect that the order dated 27-7- 1976 of Assistant Collector (ADCE) Rawalpindi and of. The Commissioner dated 12-4-1980 whereby one third of the estate of Ghulam Muhammad son of Mirdad, caste Gujar, r/o Dhoke Gujri, Tehsil Rawalpindi was mutated in favour of defendant No,1 and one-fourth in favour of defendant No,2 are void and of no legal consequence whatsoever because these are based upon a forged and bogus will allegedly dated 25-3-1972 which had never been made by the said Ghulam Muhammad while defendant No,2 was a divorcee and for permanent injunction restraining the defendants from claiming any share in the estate of the deceased Ghulam Muhammad under the said mutation/will and from interfering with plaintiff's possession of the land measuring 173 kanals 17 Marlas bearing Khasra No,198, 202, 221, 223, 359, 360, 366, 367, 389, 390, 456, 457, 1822/504, 506, 836,850, 876, 935, 936, 937, 1067, 1080, 1081, 1082, 1130, 1131, 1636/1445, 1637/1140, 1154, min. 1155, 1164, 1307, 1606, 1607, 1609 for the year 1979-80 be passed in favour of the plaintiffs against the defendants with costs. Such other relief as may be considered just and proper in the circumstances may also be granted."
' This suit was contested on the ground that a similar suit previously instituted having been dismissed as withdrawn the present suit is liable to be dismissed.
2. The learned trial Court framed the following preliminary issue: ' Whether the suit is barred under Order 23,rule 1 (3), C.P.C.?
' The factum of withdrawal of the previous suit as well as the subject thereof was admitted by the learned counsel for the plaintiffs in his statement and consequently vide judgment and decree dated 23-1-1982 trial Court dismissed the suit as being barred by the provision of under Order 23, rule 1 (3), C.P,C.. Aggrieved of this judgment and decree the petitioners filed appeal before the learned first Appellate Court which has been dismissed by the Additional District Judge, Rawalpindi vide judmgent and decree dated 31-10-1983. The plaintiffs have come up in revision against the aforementioned two judgments and decree.
3. Malik Muhammad Jaffar, Advocate has appeared on behalf of the petitioners whereas Mr. Bashir Ahmad Ansari, Advocate has appeared on behalf of respondent No, 1 and tiaji M.S. Mahboob Advocate has appeared on behalf of respondent No,2.
4. Placing reliance on cases of Mir Nasir Hussain v. Mst. Fakhar khan Begum (119 Punjab Records 1881) (page 287), Ali Muhammad v. Karim Baksh (AIR 1933 Lahore 943) and Sirajud Din v. Allah Rakha and others (PLD 1960 (WY.) Lahore 261) learned counsel for the petitioners has argued that the present suit being based on fresh cause of action, could not have been dismissed under the provisions of Order 23, rule 1 (3), C.P.C. And, therefore, both the Courts below have exercised jurisdiction illegally and with a material irregularity.
5. On the other hand learned counsel for the respondents has stated that the two suits were exactly the same. So far as the respondent No,1 is concerned inasmuch as will in his favour has been challenged in the earlier suit on the same ground on which it has been challenged in the present suit and merely because on the basis of the will mutation has been sanctioned in favour of respondent No,1, after the withdrawal of the suit it cannot be said that the suit against him is based upon a fresh cause of action and, therefore, the suit has rightly been dimissed by the trial Court under Order 23, rule 1 (3), C.P.C.. Learned counsel for the respondent No,2 has conceded that the dipute between the petitioners and respondent No,2 as raised in the present suit was not subject- matter of the previous suit. Learned counsel however, contends that the suit is to be dismissed in toto.
6. I have considered the arguments addressed by the learned counsel for the parties and have also gone through the record. For the purpose of ready reference the provisions of Order 23, rule 1
(3) of C.P.C. Are reproduced as under:-- "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.
' A perusal of the aforementioned provisions clearly shows that if a previous suit is withdrawn without permission to file a fresh suit then the subsequent suit on the same cause of action is not competent. There is no cavil with the law laid down in the judgment cited by the learned counsel for the petitioners that in case the subsequent suit is based on fresh and different cause of action, the same is not barred under the provisions of Order 23, rule 1 (3), C.P.C..
7. In the case in hand a perusal of the prayer as well as the basis of both the suits clearly demonstrates that the present suit against respondent No,1 is the same as was the previous one.
Merely because mutation has been sanctioned on the basis of the will does not give rise to fresh cause of action inasmuch as the basic dispute which was raised in the previous suit and the present suit is the validity or otherwise of the will executed by Ghulam Muhammad deceased in favour of respondent No,1. The previous suit having been withdrawn without getting permission to file a fresh suit by the predecessor-in-interest of the petitioner the present suit is liable to be dismissed as per provisions of Order 23, rule 1 (3), C.P.C. As against him, therefore, the impugned judgment and decree as against the respondent No,! Is unexceptionable and the suit has rightly been dismissed as against Muhammad Zaman, respondent No,1. So far as the dispute between the petitioners and respondent No,2 is concerned, the same was not a subject-matter of the previous suit. In the present suit the cause of action is the grant of share out of the inheritance of the deceased Ghulam Muhammad to the respondent No,2 which entitlement is being denied by the petitioners on the ground that she being a divorcee shall not inherit the deceased. This cause of action was not even available at the time when the earlier suit was filed and was dismissed as withdrawn. Consequently judgment and decree rendered by the two Courts below to the extent of the suit against respondent. No,2 is not maintainable and is laible to be set aside.
' Resultantly, I accept this civil revision partly and set aside the judgment and decree rendered by the Courts below to the extent of the suit against respondent No,2 with the result that the suit against her shall stand remanded to the trial Court for decision thereof on merits. So far as the suit against respondent No,1 is concerned, it shall remain dismissed and the judgment and decree passed by the two Courts below to that extent are affirmed. The parties are left to bear their own costs.