MUHAMMAD AZIZ Versus QUDRAT ALI

This revision application under section 115, C.P.C. has been filed by the plaintiff /applicant against the order of 1st Appellate Court whereby the learned Court while refusing to grant permission to the plaintiff /applicant to withdraw the suit with permission to file a fresh suit, also dismissed the appeal as withdrawn. The learned counsel for the applicant contends that the learned Lower Court could either grant permission or to refuse the same but could not dismiss the appeal as withdrawn while refusing permission to bring a fresh suit. The contention of the learned counsel is well‑founded. The learned 1st Appellate Court was well within his right either to grant permission sought by the petitioner for withdrawal of the proceeding with liberty to institute a fresh case on the same cause of action, or refuse the same. The Court having refused to grant permission to withdraw the proceeding with permission to bring fresh proceeding on the same cause of action could not treat the application as one for unconditional withdrawal. In such circumstances the Court after refusing the application for withdrawal of proceedings with permission to file fresh proceeding, was bound to dispose of the appeal on merits. Reference in this connection may be made to the case of P.I.D.C. v. Government of Pakistan P L D 1984 Kar.

1. I accordingly~ accept this revision application, set aside order of the 1st Appellate' Court and remand the case back with the direction that the appeal may be heard and disposed of on merits. There will be no order as to costs.

H.B.T./M‑433/K Case remanded‑