KALEEM ULLAH Versus ADDITIONAL DISTRICT JUDGE
1. Brief facts out of which the present writ petition arises are that respondents Nos.3 and 4 filed suit for declaration with consequential relief before the Civil Judge Kamalia against the petitioner regarding Mutation No. 1021, dated 27‑11‑1964. Suit was decreed on 10‑10‑1980. Petitioner being aggrieved filed appeal before the District Judge, Toba Tek Singh and the appeal was withdrawn on the statement of respondents Nos.3 and 4 as respondent Nos.3 and 4 wrongly filed suit before the Civil Court and they wanted to file ejectment petition against the petitioners. Thereafter, the respondents Nos.3 and 4 filed review petition before the District Judge which was also dismissed by the District Judge vide order, dated 1‑2‑1983. Respondents Nos.3 and 4 filed ejectment petition before the Rent Controller in the year 1983 which was dismissed by the learned Rent Controller vide order, dated 15‑3‑1983. Respondents Nos.3 and 4 filed suit for declaration with consequential relief for same cause of action before the Civil Judge Kamalia. Petitioner filed application under Order 7, Rule 11, C.P.C. that the 2nd suit is not maintainable by virtue of Order 23, Rule 1(3), C.P.C. The application was accepted by the learned trial Court vide order, dated 10‑2‑1988. Thereafter, respondents Nos.3 and 4 filed revision petition before the District Judge who accepted the same vide order, dated 2‑5‑1988. Hence the present writ petition.
2. Respondents Nos.3 and 4 engaged Ch. Bashir Ahmad, Advocate whose name is mentioned in the cause list but neither the respondents nor their counsel entered appearance in spite of the fact as mentioned above that name of the learned counsel for respondents is mentioned in the cause list. Lists of old cases were sent to the respective members of the Bar with the following note:‑‑
2. "Old cases will not be adjourned. Adjournment, however, may be solicited in highly exceptional circumstances with the consent of the opposite party through an application to the Deputy Registrar latest by 7 days before the date fixed for hearing."
3. In spite of the aforesaid note learned counsel for the respondents Nos.3 and 4 did not get adjusted the case after obtaining no objection from the learned counsel for the petitioner. In this view of the matter, I have no alternative but to decide the case against the respondents Nos.3 and 4 ex parte.
3. Learned counsel for the petitioner submits that office has sent list of old cases 15 days advance to the date fixed by this Court.
4. I have given my anxious consideration to the contentions of the learned counsel for the parties and perused the record myself. It is better and appropriate to reproduce the statements of the respondents Nos.3 and 4 which were recorded by the District Judge Toba Tek Singh in appeal filed by the petitioner against the original decree, dated 14‑10‑1980:‑‑---
4. Respondents Nos.3 and 4 filed review application which was also dismissed by the District Judge vide order, dated 1‑2‑1983 in the following terms:‑‑
5. "I have scrutinized the relevant record and find that the appeal was disposed of by my learned predecessor entirely in accordance with the statements of the petitioners and the learned counsel for both the parties. No conditions were attached in regard to the acceptance of the appeal and the consequent dismissal of the suit. It was strictly in accordance with the prayer of the petitioners that they were allowed to withdraw the suit and instead file an ejectment petition against the respondent for his eviction from the house in dispute. In the circumstances, I am afraid that no conditions can be attached to the order passed by the appellate Court at this belated stage. The review petition is also hopelessly barred by limitation and there are not reasonable grounds to condone the delay which has occurred in this behalf."
6. The aforesaid operative part of the earlier litigation was not considered by the learned Additional District Judge in impugned order, dated 2‑5‑1988. It is settled proposition of law that 2nd suit on the basis of the same cause of action is not maintainable by virtue of Order 23, Rule 1(3), C.P.C. unless and until the original suit was withdrawn by the respondents Nos.3 and 4 with the permission to file fresh one. The aforesaid facts clearly reveal that the respondents Nos.3 and 4 did not get permission to file fresh suit. In this view of the matter, the impugned judgment of the revisional Court is not sustainable in the eyes of law as the same has been passed in violation of the mandatory provisions of the C.P.C. i.e. section 11, C.P.C. Order 2, Rule 2 and Order 23 Rule 1 (3) and the law laid down by the superior Courts in the following judgments:‑‑
7. 1990 MLD 788 (Rabnawaz Khan's case),
8. 1989 CLC 2393 (Jewan's case),
9. 1990 MLD 788 (Saeed Ahmad's case),
10. 1990 CLC 220 (Waheed Ahmad's case) and
11. 1990 CLC 1334 (Mst. Mehrunnisa's case).
12. In view of what has been discussed above, the writ petition is accepted and the impugned order is set aside.
13. Q.M.H./M.A.K./K‑52/L Petition allowed.