Law:

Section:

(a) Civil Procedure Code (V of 1908)--- ----O. IX, R. 13---Dismissal of suit for non-prosecution---Remedy of plaintiff---Scope---Court could set aside such order on plaintiffs application only after showing sufficient cause for his previous non-appearance---Paramount consideration for court in such case would be to do complete justice between parties. (b) Civil Procedure Code (V of 1908)--- ----S. 11 & O.IX, Rr.9 & 13---Fresh suit after dismissal of former suit for non-prosecution---Cause of action, parties, suit property and relief asked for in former and fresh suits being same---Effect---Principle of res judicata would not apply to former suit dismissed for non-prosecution---Plaintiff had not availed remedy by way of filing an application for restoration of formal suit, thus, such fresh suit would be barred by provisions of O.IX, R.9, C.P.C. Abdul Haq v. Mst. Ghulam Fatima and 3 others PLD 1987 Lah. 574; Ellappa Naicken v. K. Lakshmana Naicken and others AIR (36) 1949 Madras 71 and Baru and others v. Maya Ram and others AIR 1952 Punjab 261 rel. (c) Civil Procedure Code (V of 1908)--- ----O.VII, Rr.1(e) & 11(a)---Expression "cause of action" would mean totality of material facts essential for plaintiff to allege and prove in order to succeed and get decree in his favour. Said and others v. Fazal Hussain and others PLD 1959 SC 356 rel. (d) Civil Procedure Code (V of 1908)--- ----S. 100---Second appeal---Maintain-ability---Second appeal, if not based on grounds mentioned in S.100, C.P.C., could be rejected summarily. Karam Dad and 3 others v. Mst. Barkat Jan and 10 others 2004 CLC 910 and Safdar Ali Khan v. Azad Government and 2 others 2010 SCR 250 rel. JUDGMENT RAJA SAEED AKRAM KHAN, J.---This appeal, with the leave of the Court, arises out of the judgment and decree of the High Court dated 9-3-2010, whereby appeal filed by the present appellant is dismissed. 2. The gist of the case for disposal of this appeal is that the plaintiff-appellant filed a suit for declaration along with permanent injunction cum recovery of possession against the respondents in respect of suit-land bearing new Survey Nos.29 and 45 measuring 18 kanals, 15-1/2 marlas,…

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