ACHAR And Another Versus ABU BAKER MODI And Another

Suit No. 267 of 1992, decided on 9th October, 1994.

ORDER ABDUL RAHIM KAZI, J. - The Plaintiffs have filed this suit fo declaration and perpetual injunction Their case is that the said two Plaintiff: and numerous other persons have been in lawful possession of over 130 Salt Pans in Mirpur , Karachi since 1925 under automatically renewal currently in force which are heritable grants from the Government of Sindh and were originally made to their ancestors. It is their case that on 7-3-1992 the Defendants and their agents/servants suddenly attacked the Plaintiffs and their fellow grantees in their Salt-Pans in. a bid to oust them, which attack was resisted where upon the police force arrived there and arrested several persons from both the sides who were ultimately released on bail by Illaqa Magistrate on 8-3-1992. The Defendants then on 14-3-1992 filed Suit No. 217 of 1992 against the Plaintiffs and others for damages amounting to Rs. 45,000/- and injunction, which is pending in the Court of II Senior Civil Judge, Karachi (West)- Copy of the said suit has been attached to the present plaint. The plaintiffs, therefore, filed the present suit for the following reliefs;

(i)A declaration that the plaintiffs and their fellow grantee are lawfully in possession of over 130 Salt-Pans off Mirpur Road, Karachi.

(ii)A perpetual injunction restraining the defendants, their agents, servants and others acting on their behalf from in any way interfering with the plaintiffs and their fellow grantees' possession or peaceful activities and enjoyment of the over 130 Salt-Pans granted to them in 1925 as aforesaid.

(iii)Costs.

(iv)Further ancillary reliefs as necessary."

These two applications which are identical in nature have been moved by the Defendants. The contention of the defendants is that earlier the present Plaintiffs Achar and Asian) Alongwith 49 other persons had filed the suit, being Suit No. 456 of. 199^ before the IV Civil Judge, Karachi (West) wherein. They laid prayed for identical reliefs which is as under:

([) Declaration that plaintiffs have permanent Hereditary rights in 130 Salt-Pans in Mirpur , Karachi since their forefathers.

(ii)Permanent injunction thereby restraining the defendants, their men, agents, assigns, attorneys, executors, servants, any person or persons acting on their behalf or under their authority from illegally and unlawfully manufacturing salt at 130 Pans of lumaris situated at Mirpur , Karachi and also restrain them from preventing the plaintiffs from working at and visiting their on. 130 Salt Pans situated at Mirpur , Karachi.

(iii)The defendants may he directed to render and settled accounts with the plaintiffs in respect of their rights in the manufactured suit.

(iv)Costs.

(v)Any other/further/additional relief or reliefs that this Hon'ble Court may deem fit and proper under the circumstances of the case may also be granted.

In this earlier suit the cause of action is shown to have accrued to the plaintiffs initially on 21-2-1991 when the legal notice was sent by the plaintiffs to the defendants calling upon them to stop illegal manufacture of salt and to settle the matter with the lumaris and finally on 21-7-1991 when the defendants are alleged to have forcibly stopped the plaintiffs from working and visiting the Salt- Pans. In the present suit also the case of the plaintiffs is identical and the cause of action is shown to have accrued to, the plaintiffs on 7-3-1992 when the defendants are alleged to have forcibly entered the said Salt Pans.

I have heard Mr. Khursheed Anwar Shaikh, learned counsel appearing for -defendants, who had made these applications. Mr. S.A. Samad Khan, learned counsel for plaintiffs is called absent. The contention of the learned counsel for the defendants is that the previous suit was withdrawn unconditionally and as such was dismissed on 4-3-1992 as withdrawn. In these circumstances, the contention of the learned counsel is, that the present still is barred under the provisions of Order XXIII rule 1(3) CPC which reads as under:

"Withdrawal of suit or abandonment of part of claim.-(1) At any time after the institution of a suit the plaintiff may, as against all or any of the defendants, withdraw his suit or abandon part of his claim.
(2):......
(a):......................................................................................
(b).............................................................. ................
(3)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 a Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim."
(4)A perusal of the above provisions is very clear on the question involved in the present matter. The copy of the plaint and the order of dismissal alongwith application seeking the withdrawal of the suit have been placed on record and it can be safely assumed that the present suit is also based on same cause of action. Rather the cause of action in the present suit is a continuation of the cause of action in earlier suit. In these circumstances, I am of the view that the present suit is hit by the above said provisions of Order XXIII rule 1(3) CPC and is barred by law. Accordingly, I allow these two applications and dismiss the suit as not maintainable. However, there will be no order as to costs.