' Order, dated 7-4-1999 passed by the learned first appellate Court whereby the respondents were allowed to withdraw the appeal with permission to file a fresh suit has been assailed.
2. The two respondents herein, field a suit for permanent injunction claiming therein that they owned a three storeys house bearing No,2/516 in Mohallah Muslimabad, Gujrat in which respondent No,1 was running a school. It was further stated that the doors, windows and the ventilators in all the three storeys alongwith a 'Balconi' opened towards the west even before the partition, through which they were enjoying the light and air. It was further averred that on the west, the petitioners owned Plot No,2/515 on which they wanted to raise constructions in such a manner so as to close the openings of the respondents. It was also contended that plaintiffs-respondents had acquired easement rights by prescription. The suit was contested. The case of the petitioner-defendants has been that between the house of the petitioners and the respondents they had voluntarily left a 5 ft.
Passage the title of which vested in the petitioners.
3. Necessary issues in the case were framed and the suit was tried. It was held that the plaintiffs- respondents failed to establish any right of easement in the property in dispute. Accordingly, the suit was dismissed on 8-12-1996.
4. Respondent No,1 alone appealed against the said judgment, and decree. It came up for consideration before the learned first appellate Court on 17-4-1999 in the presence of the counsel for the parties. The learned counsel for respondent No,1 made a statement that during the pendency of the suit, the petitioners had raised construction and, therefore, a suit for declaration based on the rights of easement is intended to be filed. He prayed for the withdrawal of the appeal with permission to file fresh suit.
5. The learned counsel appearing for the petitioners objected to the grant of permission to file a fresh suit (as recorded in the impugned order. The learned first appellate Court held that since the respondent wanted to file a declaratory suit whereas the present suit was for permanent injunction, therefore, respondent No,1 was entitled to file a fresh suit on another cause of action.
Accordingly, respondent No,1 was permitted to file a fresh suit on payment of Rs,1,000 as cost.
6. The learned counsel for the petitioners submits that after the suit had been tried and dismissed on merits permission to file a fresh declaratory suit was wholly uncalled for. He further submits that in the absence of a formal defect the learned first appellate Court was not competent to allow permission to file a fresh suit. Reliance was placed on Abdul Manan etc. v. Muhammad Ibrahim etc. PLD 1999 Lah.
438. He further contended that undisputedly the house of the petitioner and the house of the respondents were evacuee property in which no right of easement could be claimed. Reliance was placed on Muhammad Ramzan v. Mirza Naseer Beg 1980 CLC 1555.
7. The learned counsel for the respondents has contended that since the petitioners had raised construction on the disputed plot, the suit for mandatory injunction, filed by them, had become infructuous. He further contended that in the first suit since declaration as to the easement rights was not claimed it constituted a formal defect. Therefore, according to him the suit was rightly allowed to be withdrawn.
8. I have considered the submissions made by the learned counsel for the parties. I have noticed that while granting permission to respondent No,1 to file a fresh suit the learned first appellate Court did not specify the formal defect and permission was granted to respondent No,1 to file a fresh suit for declaration. The contention of the learned counsel for the respondents that in the first suit a formal declaration as to the easement rights was not claimed which according tohim amounted to a formal defect has no merit either. It is the substance rather than the form which should be looked into to determine the nature of relief claimed by a plaintiff in a suit. In para. 4 of the plaint the respondents had clearly pleaded easement rights on account of prescription.
Further, the suit was tiled in 1992 and was decided on 8-12-1996 after parties had led the entire evidence and the merits of the claims of the parties were duly considered and adjudicated. The respondents could not, therefore, be permitted to take another chance in the form of a declaratory suit.
9. On account of the order, proposed to be made, I am refraining myself to express any opinion on the merits of the controversy.
10. In view of the above, the learned first appellate Court acted illegally in permitting respondent No,1 to file a fresh suit. Since withdrawal of the appeal was conditioned with permission to tile a fresh suit, it will only be fair and proper that the impugned order dismissing the appeal as withdrawn should also be set aside so that the appeal filed by respondent No,1 is adjudicated on merits.
11. Accordingly, this petition is allowed and the impugned order, dated 17-4-1999 of the learned first appellate Court is set aside with the result that the appeal of respondent No,1 shall be deemed to be pending before the learned first appellate Court to be decided in accordance with law. There is no order as to costs.