Mirza BASHIR MUHAMMAD and others vs MUHAMMAD ALI
The petitioners sought leave to appeal against the dismissal of their civil revision and review application by the High Court, which had upheld the dismissal of their inheritance declaration suit on the grounds of res judicata and the bar under Order XXIII Rule 3 of the Code of Civil Procedure 1908 due to the withdrawal of an earlier suit without obtaining permission. Upon examining the withdrawal application, the Supreme Court observed that a clear prayer for permission to file a fresh suit was indeed made, but the trial court failed to consider that aspect. Consequently, the Supreme Court held that the case warranted a re-examination of the points raised, granted leave to appeal, and ordered that the stay should continue.
- Whether leave to appeal should be granted when the lower court failed to consider the prayer for permission to refile a withdrawn suit?
- Does the withdrawal of an earlier suit without formal permission operate as a bar under Order XXIII Rule 3 of the Code of Civil Procedure 1908 when permission was actually sought in the application?
- Order XXIII Rule 3, Code of Civil Procedure 1908
ORDER
1. ' MUHAMMAD AFZAL ZULLAH, J.--The petitioners'/plaintiffs' Civil Revision and a Review Application having been dismissed by the High Court, they have now sought leave to appeal. The petitioners' suit for declaration regarding an inheritance was dismissed on two grounds; (1) res judicata; and (2), non-maintainability of the suit in view of the bar contained in Order XXIII, rule 3 of the C.P.C. The petitioners had withdrawn the earlier suit and it was held against them that they had not sought and obtained permission to refile it. Their appeal and civil revision and a review have failed.
2. Our attention has been drawn to the application for withdrawal of the suit (P.44 of the Paper Book).
3. It is clearly stated therein that on account of some technical grounds the earlier suit was sought to be withdrawn. A clear prayer was also made that permission be granted for filing a fresh suit. The learned Court, it appears, did not read the application and omitted to mention the second part of the application regarding reeling of the suit. In the circumstances of this case, we consider it a fit and proper ease to grant leave to appeal to examine the points raised in the petition. Leave to appeal accordingly is granted.
4. ' Security Rs,5,000.
5. ' The appeal shall be prepared on the present record with direction to the parties to file all necessary additional documents. Stay to continue. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.