' The brief facts giving rise to this writ petition are that respondents/plaintiffs filed suit for declaration against the petitioners/defendants regarding the property in question. The suit was contested by the petitioners/defendants whereas the other defendants/respondents were not served. On 31-3-1988, the counsel for respondents/plaintiffs made a' statement to the effect that since the petitioners/defendants had taken over the possession of the disputed property as such he may be allowed to withdraw the suit with permission to file new. The trial Court dismissed the suit on the said date with permission to file fresh. The petitioners being aggrieved, filed revision petition before the Additional District Judge, who dismissed the same vide order, dated 22-12-1988; hence the present writ petition.
2. The learned counsel for the petitioners 'submits that trial Court has no jurisdiction to allow the respondents to withdraw the suit without filing written 'application. In support of his contention he relied upon AIR 1925 PC 55. The trial Court has no jurisdiction to accept the oral request of the respondents without notice to petitioners. In support of his contention, he relied upon 1984 CLC 2886; that the ingredients mentioned in Order 23(2), O.P.C. Were not fulfilled, therefore, the orders of both the Court below are against mandatory provisions of C.P.C. He relied upon PLD 1959 SC 287.
3. Learned counsel for respondents submits that there is no requirements under the provisions of C.P.C. To file written application for withdrawal of suit; that respondents have withdrawn the suit with permission to file fresh one and the suit has already been filed by the respondents, therefore, judgment of both the Courts below are in accordance with law; that both the Courts below have given concurrent findings of fact against the petitioner; he urged that writ petition is liable to be dismissed on the sole ground of laches as revision petition was dismissed by learned Additional District Judge on 22-12-1988 whereas the petitioners have filed this writ petition on 23-1-1989.
4. In rebuttal, petitioner's counsel submits that the petitioners filed the writ petition after getting information about withdrawal of the suit by the respondents.
5. I have given my anxious consideration to the learned counsel of the parties and perused the record myself. The first contention of the learned counsel of the petitioner is that learned trial Court has no jurisdiction to allow the respondents to withdraw their suit without filing application in black and white and in support of his contention he relied on Fateh Singh and others v. Jagannath Bakhsh Singh and another 1925 PC 55. It was observed by the P.C. In the cited case to see the effect of principle of res judicata; whereas the Honorable Supreme Court has taken contrary view and the oral prayer of learned counsel of the plaintiff the suit was withdrawn with permission to file fresh suit was held valid by the Honorable Supreme Court in Ismael v. Fida Ali and others PLD 1965 SC 634 the other contention of the learned counsel of the petitioner that the trial Court allowed the respondents to withdraw the suit to file a fresh one is a conditional order and prejudiced to the rights of the petitioners, therefore, trial Court has to issue notice to the petitioners but the trial Court allowed the respondents to withdraw the suit without providing personal hearing to the petitioners, therefore, orders of both the Courts below are not valid. In support of this contention he relied upon Mst. Rafiqa Iqbal Ahmad and another v. Muhammad Ali Hyder 1984 CLC 2886 and Haji Abdul Rashid Sowdagar v. S.M. Lalita Roy and others PLD 1959 SC (Pak.) 287. The aforesaid proposition of law is also supported by the following judgments:-- ' Mst. Fatima v. Sardara PLD 1956 Lah. 474; Muhammad Musa Ansari v. Gul Shahab Jan and 5 others 1993 CLC 1776; Nazir Moarja v. Muhammad Sultan Khan PLD 1966 Kar. 356 and Town Committee Dipalpur v. Ahmad Din PLD 1972 Lah.
290.
The respondents had withdrawn their suit after five years. Some of the judgments aforementioned were considered by the Honorable Supreme Court in Muhammad Mansha v. Sabir Ali's case in para. 9 1999 SCMR 1782 and laid down the following principle:-- "10. It may be pointed out in this regard that, under Order XXIII, Rule 1, C.P.C., the Court is clearly vested with power to permit withdrawal from the suit with liberty to plaintiff to institute a fresh suit on the same cause of action on such terms as the Court deems fit. Although, the use of the words 'whether the Court is satisfied' in sub-rule (2) of Rule 1 of Order XXIII indicates that the Court before granting such permission to the plaintiff must satisfy itself as to the existence of grounds upon which such permission is sought but, in our view, merely for the reason that the Court has failed to record such grounds in its order, it would not be open to the Court to question whether such leave has been validly granted or not. In any case, there is a well-settled principle that no party can be made to suffer on account of an error of the Court. Therefore, if the grounds upon which such permission was granted to the respondent to institute a fresh suit, cannot be spelt out from the order of the Court, such objection cannot be allowed to be raised subsequently. Consequently, in our view, no prejudice can be said to have been caused to the appellants on this account."
' It is better and appropriate to reproduce operative part of the order of the learned Additional District Judge, which is as follows:--- "He has further submitted that due to taking of the possession, the case of the plaintiffs could not proceed as such the same was bound to be dismissed, hence the learned trial Court was justified in granting the request of the plaintiffs. The learned trial Court has not committed any illegal or material irregularity in the exercise of its jurisdiction."
The aforesaid finding of the decisional Court clearly reveals that the suit of the respondents cannot proceed further on account of the subsequent events as the petitioners had taken the possession from the respondents, therefore, judgment of both the Courts are in accordance with law laid down by the Honorable Supreme Court in Sabir Ali's case (supra). Mr. Justice late Din Muhammad in his celebrated judgment in Gurpret Singh's case AIR 1946 Lah. 429 permitted the plaintiff to withdraw his suit on the ground of formal defect, in order to bring fresh suit in respect of the same subject- matter. In that case, the counsel, failed to draft a proper plaint by omitting to make certain claim and ask for proper reliefs in respect of property in dispute. At the stage of second appeal, an application was moved on behalf of the plaintiff to permit him to withdraw the suit, in order to bring fresh suit as in absence of fresh suit, he was likely to suffer in the manner of the dismissal of the suit. I am unable to approve of the mode and manner of exercise of trial Court. The then Mr. Justice Gul Zarin Kayani observed in Abdul Wakeel's case reported in PLD 1994 Lah. 249 and the relevant observation are as follows:-- "Prayer for a conditional withdrawal appeared to be an attempt for bye-passing the whole exercise hereto undergone and to start afresh, presumably, to plug in the possible existing gaps in the evidence led so far."
Since the respondents had withdrawn the suit after five years on account of subsequent event that the petitioners/defendants took possession from the plaintiffs/respondents but in view of Sabir Ali's case (supra), this writ petition has no merit, therefore, trial Court is directed to decide the second suit filed by respondents/plaintiff on merits subject to condition payment of Rs,5,000 to petitioners.
' Disposed of in the aforesaid terms.