C.M.A. No,3868 of 1999 ' This is an application under Order VII, Rule 11, C.P.C. Thereby the defendant is seeking order rejecting the plaint on the ground that the plaintiff had earlier filed a Suit No,1140 of 1997 before this Court in respect of the same subject-matter and same causes of action and during its pendency the present suit was filed; however, on 21-8-1998 the earlier Suit No,1140 of 1997 was withdrawn by the plaintiff without seeking any permission to file a fresh suit; and therefore, the present suit is barred by section 11, C.P.C.
2. Mr. M.M. Tariq, learned counsel for the defendant in support of the application referred to the cases of Muhammad Latif v. Muhammad Iqbal 1996 CLC 1672, Akbar Ali Malik v. Chairman, A.K.M.I.D.C., Jalalabad Colony, Muzaffarabad and another 1997 MLD 236, Mst. Bashiran Bibi and others v. Hidayatullah and others 1996 SCM R 1051 and contended that the present suit is hit by section 11, C.P.C. And is therefore, liable to be dismissed.
3. On the last date of hearing, Mr. Ziaul Haq Makhdoom, Advocate was present in the Court and at the request of the Court agreed to assist on this legal point and today he placed large number of case-law under section 11, C.P.C. And he submitted that since the earlier suit was withdrawn after filing the present suit, therefore, the present suit is not hit by section 11, C.P.C.
4. Mr. Ziaul Haq Makhdoom has referred to the following cases as well
(1) Akbar Ali Malik v. Chairman, A.K. M.I.D.C. 1999 M LD 236,
(2) Ejaz Ali Siddiqui v. Irshad Ahmed 1998 CLC 1973,
(3) Muhammad Iqbal v. Mukhtar Hussain 1996 SCM R 1047,
(4) Allah Bakhsh v. Abdul Waheed PLD 1996 Kar. 458,
(5) Muhammad Latif v. Muhammad Iqbal 1996 CLC 1672,
(6) Luqman Shah v. District Judge, Haripur 1997 CLC 27,
(7) National Bank of Pakistan v. Hashim Khan 1995 CLC 88,
(8) Pardool v. Gulzada PLD 1995 SC 410,
(9) Razzak v. Tallat 1995 CLC 57,
(10) Muhammad Yousuf Memon v. Karachi Stock Exchange 1995 CLC 183,
(11) Ejaz Hussain v. Abbas Ali 1993 CLC 2478,
(12) Shaheen Hassan v. Grindlays Bank, PIC 1992, MLD 1972,
(13) Asghar Ali v. P.K. Shahni 1992 CLC 2282,
(14) Allah Dad v. Mehmood Shah 1991 SCM R 418,
(15) Nazima Begum v. Hasina Begum 1991 SCM R 177,
(16) Sarwary Begum v. Muhammad Tufail 1991 M LD 2131,
(17) Muhammad Khan v. Arshad Jamil 1987 M LD 671,
(18) Muhammad Saifullah Khan v. Federation of Pakistan 1989 SCM R 22,
(19) Nazima Begum v. Hasina Begum 1989 SCM R 498,
(20) Nazeera Begum v. Hosina Begum 1989 MLD 4533,
(21) Abdul Shakoor v. Abdul Aziz 1996 M LD 1448,
(22) Hoosain Bux v. Dur Muhammad PLD 1963 Kar. 696 and
(23) Ghulam Nabi v. Muhammad Yaqoob PLD 1983 SC 344.
5. The most pertinent case which he has referred to is that of Ghulam Nabi v. Muhammad Yaqub PLD 1983 SC 344 where in the identical circumstances during the pendency of the subsequent suit the earlier suit was withdrawn under Order XXIII, Rule 1, C.P.C. Without seeking permission to file a fresh suit and the Supreme Court was of the view that the fresh suit was not barred under section 11, C.P.C. And it was held that mere withdrawal of a suit does not operate as res judicata under section 11, C.P.C.
6. In all the three matters referred to by the counsel for the defendant the position was different than that of the present case and, therefore, the facts of those cases are not applicable to the present suit.
7. As observed above, the principle laid down in PLD 1983 SC 344 (supra) are applicable to the circumstances of the present case which laid down that the fresh suit already instituted and pending at the time of A withdrawal of earlier suit is not barred by law.
8. Considering of the above facts, I find that this application is not maintainable and, therefore, dismissed.
' Before parting with the above order I place my appreciation for the assistance provided by Mr. Ziaul Haq Makhdoom, Advocate.