Reading of order XXIII, rule 1 of the Code, 1908 contemplates withdrawal of suit, which is optional to the plaintiff and can tender request to that effect at any stage of the proceedings,

2021 LHC 668 

The plain reading of order XXIII, rule 1 of the Code, 1908 contemplates withdrawal of suit, which is optional to the plaintiff and can tender request to that effect at any stage of the proceedings, however, per sub-rule (2) the plaintiff while showing formal/inherent defect in the plaint or asserting some other sufficient reasons may withdraw his suit with liberty to institute fresh one. Where he does not intend to institute a fresh suit or he simply withdraws a suit without seeking permission to file new one, then according to sub-rule (3), the plaintiff is precluded to institute second suit qua subject matter of the earlier lis. The object of last principle is to prevent a plaintiff from re-opening of another round of litigation, which he already has dropped, otherwise, there would be no end to the litigation. Thus clear that though plaintiff has a right to withdraw his suit whenever he desires, but he cannot bring fresh one qua same subject matter, unless permission is sought/accorded in this behalf. Moreover, section 12 of the said Code provides that where a plaintiff is precluded by rules from instituting a further suit in respect of any particular cause of action, he shall not be entitled to bring a suit in respect thereof in any Court to which this enactment applies. The main object of these provision is to prevent endless litigations and to save the precious time of the Courts. 4. Although, no cross objection(s) in written form was filed, but learned counsel for respondent/beneficiary orally challenged findings on issue No.5, which he could do while supporting the impugned judgment on other issues, even if formal objections were not moved. The learned counsel for petitioner was apprised to said situation and inquired that when earlier suit with regard to subject matter involved herein was withdrawn, how second was competent, he felt handicapped to respond satisfactorily, however, after going through Ex:D3 confirmed that subject matter of both suits was similar, but no permission was sought or granted for filing of fresh suit, therefore, under the above provisions as well as law on the subject, the petitioner was precluded to institute new one.

Civil Revision: 105-10

MUHAMMAD INAYAT VS ZAIGHAM NAWAZ ETC

23-02-2021

2021 LHC 668