' This case is pending adjudication since 1997. On the last date of hearing, the learned counsel for the petitioner Ustad Muhammad Iqbal, Advocate was present, whereas, one Jafar the real brother of respondent No,1 appeared and sought adjournment on the ground that compromise was effected between the parties but the petitioners have resiled, therefore, he sought time to engage a counsel. Today nobody has entered appearance on behalf of the petitioner. Since the petition was admitted for regular hearing vide order dated 5-6-1997, therefore, the same cannot be dismissed for non-prosecution in view of the case reported as PLD 2000 SC 820, therefore, the same is being decided on merits.
2. Thi& civil revision is directed, against the order dated 10-3-1997 passed by the learned Additional District Judge, Faisalabad, whereby he accepted the appeal of the respondents against the order, dated 14-9-1996 of the Civil Judge, Faisalabad, whereby in a suit for declaration and permanent injunction challenging the order of the Divisional Canal Officer, dated 5-3-1996 and 18-6-1996, as without lawf:1 authority was dismissed.
3. Muhammad Akram respondent No,1, filed a suit for declaration and permanent injunction in the Court of the learned Civil Judge, Faisalabad. It was asserted that he was lessee of the land measuring 12 acres, falling in Square No, 56 owned by the Provincial Government which was irrigated through Khasra No,65, owned by the Provincial Government and in kind is "Ghair Mumkan".
The defendant No,3 Shah Walayat had nothing to do with the said land but with the connivance of the official of the Canal Department, and upon the basis of the mala fide intention they intrued upon the land owned by the Provincial Government, was bent upon to demolish the watercourse passing through Khasra No,65 without any justification or reason. The order dated 5-3-1996 and 18- 6-1996 of the Divisional Canal Officer, were also challenged.
4. The suit was resisted by filing the written statement. It was contended that the suit was liable to be dismissed because of the fact that the respondents previously filed a suit regarding the same cause of action on 17-6-1996 and the same was withdrawn/got dismissed on the basis of the statement made by the learned counsel for the plaintiffs.
5. The learned Civil Judge after hearing the parties came to the conclusion that the suit was hit by Order 2, rule 2 of C.P.C. So rejected the plaint under Order 7, rule 11 of the C.P.C. Vide order dated 14- 9-1996. Muhammad Akram challenged the order of the learned trial Court in appeal before the Court of learned District Judge, Faisalabad. The Appellate Court accepted the appeal and set aside the order dated 14-9-1996 of the learned Civil Judge and remanded the case to the learned trial Court for fresh decision of the case. The learned Additional District Judge was of the view that on the facts and circumstances of the case the Order 2, rule 2, C.P.C. Is not attracted and relevant provisions of law are of Order 23 of the C.P.C. He was also of the opinion that the learned Civil Judge wrongly relied on the photo copy of the previous order dated 17-6-1996 while rejecting the plaint which is not warranted by law. A proper course to be adopted by the learned trial Court was to frame the issues to decide the same after giving the opportunity to both the parties for producing the evidence.
6, The impugned order of the remand has been impugned through this civil revision on the ground that the order dated 5-3-1996 was challenged through the earlier suit which was withdrawn without any condition. Further the respondents were precluded from resurrecting cause, after withdrawing the same, unconditionally and that new suit is barred under clause (d) of rule 11 of Order VII, C.P.C.
7. The learned counsel for the respondents contends that plaint could have not been rejected under Order 2, rule 2, C.P.C. As the same is not attracted and the previous order dated 17-6-1996 could have not been relied by the learned trial Court for rejection of the plaint, therefore, the remand order dated 10-3-1997 does not call for any interference by this Court in revisional jurisdiction under section 115, C.P.C.
8. It is an admitted fact that respondent No,1, Muhammad Akram herein, brought the suit for declaration against the Divisional Canal Officer and the petitioner in relation to the order of the Divisional Canal Officer dated 5-3-1996 not allowing the respondents-plaintiffs to irrigate his. Land from located in Square No,56. Chak No,652/GB, Tehsil Jaranwala, District Faisalabad. The instant snit was brought after he had withdrawn the earlier suit of similar nature on 17-6-1996. On the petitioner's raising objection to the institution o the present suit in the presence of the order dated 17-6-1996 by the earlier suit was allowed to be disposed as withdrawn without any condition. The learned trial Court proceeded with rejecting the plaint of the respondents-plaintiffs under rule 11, Order 7 of C.P.C. On 14-9-1996.
9. The order dated 14-9-1996 was appealed against the respondents-plaintiffs and the learned Additional District Judge, Faisalabad had proceeded with allowing the same and remanded the case to the learned trial Court for fresh decision after giving an opportunity to both the parties to produce evidence. The objection by the petitioners that the plaint having been rejected without authority and the jurisdiction could not be reversed in appeal against the order dated 14-9-1996 was made by observing that the mandate contained in rule 2 of Order II of C.P.C. Is not attracted and that in fact, the matter is to be looked into underlined with the provisions of Order XXIII, C.P.C. As regards that efficacious of the order dated 17-6-1996 it was observed that, "the proper course to be adopted by the learned trial Court was to frame the issues and then to decide the same after giving the opportunity to both the parties for the producing of evidence."
10. When the order dated 5-3-1996 was challenged through the earlier suit, which was withdrawn and without any condition respondent No,3 precluded for filing the instant suit on the same cause of action after withdrawing the same unconditionally under Order 23, C.P.C. And the suit was barred under clause (d) of rule 11 of Order 7, C.P.C. Merely referring the wrong provision of Order 2, rule 2, C.P.C. Does not mean that the suit of the respondent was proceedable. Since the parties were not on contest regarding the filing earlier suit by the respondent for declaration against the Divisional Canal Officer and his order dated 5-3-1996 was challenged which was subsequently dismissed as withdrawn by the order dated 17-6-1996 by which the earlier suit was allowed to be disposed of as withdrawn without any condition. The learned Additional District Judge, committed material irregularity by passing the impugned order of remand that the issues shall be framed and then decided the same after giving the opportunity to both the parties after producing the evidence.
' Resultantly revision petition is accepted, the order of remand dated 10-3-1997 passed by the learned Additional District Judge is set aside and the order of the learned Civil Judge dated 14-9- 1996, is restored. Parties to bear their own costs.