' This Second Appeal has peen filed by Karim Bakhsh plaintiff-appellant claiming a declaration that he is owner of Plot No, 70 in Chak No, 99/12-L, Tehsil and District Montgomery (sow Sahiwal), and permanent injunction restraining the defendant from interfering with his possession, his claim being that since before 161 he is in possession of the plot and by virtue of the provisions of Settlement Scheme No, VII promulgated under the Displaced Persons (Compensation and Rehabilitation) Act, 1958, he became its owner and that the respondent had wrongfully procured its allotment and his interest in challenging the appellant's possession and ownership. Therefore, on 23rd of September 1963, he filed a suit seeking the same relief against this very plot. The suit was withdrawn on 24th of October 1963, and the learned Civil Judge, Pakpattan, passed the following order (Bab. D. 4) :-{{URDU TEXT}}
2. On 23rd of February 1965, the appellant filed a second suit. An objection was raised by the respondent that the suit was hit by the provisions of Order XXIII, rule 1, C. P. C since the cause of action in both the suits was identical and between the same parties and regarding the same property, and since earlier the suit had been withdrawn by the appellant, therefore, under Order XXIII, rule 1(3), C. P. C. He is precluded from instituting the present suit.
3. A number of other points were raised that led to the formation of three issues, all of them being decided against the appellant and the learned Civil Judge held that the present suit was Lot maintainable and that the Court had no jurisdiction since the matter related to an evacuee property and that the appellant had not been able to establish that he was an owner of the property.
4. Appeal was filed before the learned District Judge who dismissed the same on the grounds that the present suit could not be maintained since Order XXIII, rule 1(3) of the Civil Procedure Code which precluded such a suit, and civil Court had no jurisdiction since it was a matter relating to the allottment of evacuee property. On merits also, the decision of the trial Court was upheld. On merits, the learned District Judge held as follows:- "Even on merits the appellant had no case as his claim stood belied by the documentary evidence Exhs. D. 1, D. 2 and D. 3, the copies of order of allotment, of the entries about ejectment of the previous unauthorised occupants and delivery of possession to the respondent."
' Exhibit D. 1 is allotment order dated 12th of February 1959, in favour of the respondent and Exhs. D. 2 and D. 3 show that the previous occupants of the plot, Jamal and Jalal, were dispossessed and the possession was handed over to the respondent. These are the concurrent findings of facts and these have not been assailed before me.
4. The learned counsel for the appellant has raised the following contentions before me :-
(i) that the case of the appellant falls within the ambit of sub-rule (2)(b) of rule 1 of Order XXIII, C. P.
C., and the onus to prove ouster was on the respondent ;
(ii) that the right to sue is continuing ;
(iii) that the withdrawal was with the consent of the defendant and, therefore, the second suit was maintainable.
5. I now proceed to examine these contentions.
' The argument of the learned counsel is that non obstante (Exh. D. 4) the previous order of the learned Civil Judge, he has a right to file a second suit. For this, reliance has been placed on Karim Gul v. Shahzad Gul (1). In that case it was held that where an application for withdrawal of the suit alongwith permission to file a fresh suit has been made under sub-rule (2) of rule 1, the Court cannot allow the withdrawal and refuse permission to file a fresh one. In fact, if the permission is granted to withdraw a suit under
(1) 1970 SCMR 141 sub-rule (2) it will be deemed that the permission to file a fresh suit has been granted though it may not be specifically so said in the body of the order. The next reliance was placed on Haji Abdur Rashid Saudagar v. S. M. Lalita Rai (1). This ruling is an authority on this point that where a permission has been granted to the plaintiff under sub-rule (2) to withdraw a suit and to file a fresh one after fulfilling certain conditions and the plaintiff filed the fresh suit, but without fulfilling those conditions, it cannot be deemed that it was a withdrawal simpliciter under sub-rule (1) and, therefore, the disability of being precluded from instituting a fresh suit as contained under sub-rule
(3) was automatically invited. It was held in that case that if the conditions have not been complied with, it will be deemed that there is no proper plaint before the Court and the Court has to direct for the fulfilment of the conditions and in case they are not complied with again, the plaint may be dismissed.
6. None of the above rulings advance the case of the appellant. Quite obviously, the order of the Court (Exh. D. 4) has not been made under sub-rule (2) of rule 1. No application has been brought on the record that may have been made by the parties to that suit.
7. I have also gone through the statement of Abdul Karim who appeared as P. W. 1 and his two witnesses Muhammad Baha-ud-Din (P. W. 2) and Sher All (P. W. 3). Nothing has been mentioned even in their statements or in the plaint or by any document presented that the appellant had in that previous suit applied for the permission to withdraw and also he had prayed for the permission to file a fresh suit. Therefore, I hold that the present suit falls within the limit of sub-rule
(1) and, as such, has to incur the disability contained under sub-rule (3) of rule 1 of Order XXIII, C. P.
C.
8. Next it was argued that the right to sue is continuing and since after the withdrawal of the previous suit, fresh disturbance was caused or annoyance given, therefore, the appellant had acquired fresh cause of action after the withdrawal of the previous suit. I have gone through the statements of all the witnesses and have seen all the documents. No circumstance has been brought to show that fresh cause of action has arisen.
9. Next argument is that since the withdrawal was with the consent of the defendant, therefore, the disability under sub-rule (3) of rule 1 o B Order XXIII was not invited. For the purposes of such consent of the defendant, the learned counsel has relied only upon the statement in Exit. D. 4, viz. "URDU TEXT". The mentioning of word "URDU TEXT" does not mean that the defendant had automatically consented to the withdrawal. There is no other material on the record to show the consent of the defendant. However, the learned counsel has relied on a paragraph from Mulla's C.
P. C. (13th Edition, 1976), at page 1900 to show that in a case decided under section 97 of the C. P. C.
Of 1859. Norman, J. Had held in Juggobundo v. Watson & Co., (Bourkeys' Rep., Part VII, page 162), that where the plaintiff withdraws his suit without the permission of the Court but with the consent of the defendant, he is not precluded from instituting a fresh suit in respect of the same subject- matter. The opinion of Mulla is that this view does not seem to be well-founded. Secondly, the above view was controverted in Gopal Chandra v. PurnaChandra (2). In the latter case, where a plaintiff brought a suit for partition of joint property from which he withdrew, with the consent of the defendants, but without leave from the Court to bring a fresh suit, and subsequently being dispossessed from the same joint property,
(1) PLD 1959 SC (Pak.) 287 (2) (1899) 4 C W N 1110 brought a second suit for that recovery of the possession of the same; it was held by Bannerjee, J.
That mere fact that the suit is in respect of the same property, could not be sufficient to make his latter suit one for the same subject-matter as the former when the state of facts leading to the two suits and the relief claimed under them is different.
10. In the present case, there is neither difference in circumstances nor any difference in the state of facts leading to the filing of the two different suits.
11. For the foregoing reasons, I see no merit in this appeal which is hereby, dismissed. Costs will follow the events.