' Petitioner through this writ petition assails the order dated 27-1-2004 of the Additional District Judge, Attock dismissing the civil revision against the order dated 2-10-2003 of the Civil Judge Attock, whereby the application of the petitioner filed under Order VII, rule 11, C.P.C. Was dismissed;
2. Brief facts of the case are that during the pendency of the suit for partition filed by the respondent No.1, petitioner-defendant moved an application under Order VII, rule 11, C.P.C. For rejection of the plaint on the ground that previous suit filed by the respondents was dismissed as withdrawn without seeking permission to file fresh suit. Therefore, the present suit on the same cause of action was barred under Order XXIII, rule 1(3), C.P.C. This objection did not favour with the trial Court. Consequently, the application filed by the petitioner was rejected by the Civil Judge vide his order dated 2-10-2003. Revision petition also failed and the same was dismissed by the learned District Judge, Attock on 27-1-2004, hence this petition.
3. Learned counsel for the petitioner contends that previous suit filed by the respondent for possession through partition was dismissed as withdrawn. Without seeking permission to file a fresh suit on the same cause of action, respondents filed instant suit which could have not been proceeded as the suit was barred by law under Order XXIII, rule 1(3), C.P.C. And therefore the plaint is liable to be rejected. Further that the orders passed by the two Courts below are result of misinterpretation of Order XXIII, rule 1(3), C.P.C.
4. Arguments heard. Record perused. To resolve the controversy reading of Order XXIII, rule 1(3), C.P.C. Is necessary which reads as under:-- Order XXIII, rule 1(3), C.P.C.
"Where the plaintiff withdraws from a suit, or abandons part of a claim, without the permission referred to in sub-rule (2), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim."
5. The present suit was filed by respondent on 22-5 2001 whereas he withdrew the earlier suit after filing the present suit on 23-5-2001, therefore. There was no occasion for seeking permission to withdraw the earlier suit and file a fresh suit on the same cause of action. This being so, Order XXIII, rule 1(3), C.P.C. Does not apply in the present case. The above proposition of law has been considered in chain of authorities. In case reported. As Ram Mal v. Upendra Datt and another AIR 1928 Lah. 710, while interpreting Order XXIII, rule 1, C.P.C. It has been ruled that, "second suit filed during the pendency of the first suit subsequently withdrawn. Order XXIII, rule 1, C.P.C. Is no bar to second suit." In ease reported as Mangi Lal and another v. Radha Mohan and another AIR 1930 Lah.
599, it has been held that, "Order XXIII, rule 1, C.P.C. Cannot be read so as to bar a suit which has already been instituted before the other suit has been abandoned or dismissed. The rule is, clear and can only be applied to abandonment of previous suits". There is yet another Division Bench judgment from the Karachi jurisdiction i.e. Ilaji Ashfaq Ahmad Khan and others v. Custodian of Evacuee Property, Pakistan and others PLD 1966 (W.P.) Karachi 597, wherein it has been ruled that, "suit on the subject-matter already pending before withdrawal of previously instituted suit it was held that Order XXIII, rule 1, C.P.C. Not a bar applicable to maintainability of such suit." This principle has been followed in case reported as Abdullah and 8 others v. Bashiran Bibi and 4 others PLD 1981 Lah. 336, wherein withdrawal of the suit has been discussed and it has been ruled that, "suit filed previously withdrawn after; filing fresh suit held, not barred under Order XXIII, rule 1, C.P.C." A celebrated judgment of the Honourable Supreme Court reported as Ghulam Nabi and others v.
Seth Muhammad Yaqub and others PLD 1983 SC 344, which clinches the issue of filing of fresh suit without seeking permission to file at the time of previously A instituted suit by interpreting Order XXIII, rule 1, C.P.C. By observing that the fresh suit already instituted and pending at the time of withdrawal of the. Earlier suit, the suit subsecfuently filed held not barred."
6. Besides this, in a suit for partition of immovable property by a joint co-owner. Even defendants have the same right to claim partition and it is not material as to in what manner the parties are arrayed as plaintiff or defendant in the suit. Even the defendant could be transposed as plaintiff and can continue the suit, if they feel that the plaintiff is not continuing the suit in their interest. Thus in such kind of suit no absolute right could be held in favour of the plaintiff of withdrawing a suit under Order XXIII, rule 1, C.P.C. As held in case of Manohar Singh v. Mst. Sardar Bai and others AIR 1987 Rajasthan 177. Moreover, in a suit for partition cause of action is always recurring one and fresh suit is not bar.
7. Neither impugned order passed by the trial Court nor that passed by Additional District Judge, Attock in his revisional jurisdiction can by any stretch of imagination be said to be illegal or to have been passed without lawful authority. In this view of the matter, writ petition is dismissed on merits as well as being not maintainable as held in case reported as Nooi Muhammad v. Sarwar Khan and 2 others PLD 1985 SC 131.