KULSOOM and another vs TRUSTEES OF PORT OF KARACHI through Chairman K.P.T., Karachi and 2 others
The petitioners sought leave to appeal against the judgment of the High Court of Sindh, which dismissed their constitutional petition in limine against the orders of lower courts refusing to grant permission to file a fresh suit upon the withdrawal of their earlier suit for declaration and injunction. The core legal question before the Supreme Court was whether an application for the withdrawal of a suit coupled with a prayer for permission to institute a fresh suit is one and indivisible, requiring the court to either accept or reject both prayers together. The Supreme Court granted leave to appeal to consider this contention in light of the dictum laid down in a prior precedent. The holding of the Court was to grant leave to appeal to examine the indivisibility of the withdrawal and permission application.
- Whether an application for withdrawal of a suit and permission to bring a fresh suit on the same cause of action is one and indivisible?
- Must a court either accept or reject both prayers for withdrawal and permission to file a fresh suit together?
ORDER
' NAZIM HUSSAIN SIDDIQUI, J.---The petitioners seek leave to appeal against the judgment dated 7- 9-2001 of learned Chief Justice, High Court of Sindh, Karachi, whereby C.P. No,D-1682/2000 filed by predecessor-in-interest of the petitioners, namely Azizullah, was dismissed in limine .
2. The facts relevant for decision of this petition are that the predecessor-in-interest of the petitioners had filed a suit for declaration and injunction. The declaration was sought to the effect that the land measuring 170 x 70 sq. Feet in possession of. Said Azizullah be declared as legal and that the respondents be restrained from interfering with his possession. The suit was dismissed as withdrawn vide order dated 14-2-1998, but permission to file a fresh suit was refused. Being aggrieved and dissatisfied with the order of learned Civil Judge, he preferred revision application, which was also dismissed for non-prosecution. Thereafter, an application for restoration of revision was dismissed by learned Additional District Judge, Karachi-West. The matter was taken up before High Court, but without any success.
3. It is contended on behalf of the petitioners that refusal to grant permission was not the subject- matter but dismissal of the restoration application was the subject-matter before High Court, and that the real point involved in the petition was not adverted by High Court. Learned counsel also argued that the application, for withdrawal of the suit and permission for bringing the fresh suit on the same cause of action, is one and indivisible and in such situation the Court must either reject or accept both the prayers and it cannot accept one and reject the other, 'above contention is based on the case reported as Karim Gul and another v. Shahzad Gul and another (1970 SCM R 141).
4. Leave to appeal is granted to consider-above contentions in the light of dictum laid down in the cited case.
5. Since short point is involved, the matter be fixed for regular hearing as early as possible.
Cited by 1 case
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