Law:

Section:

(a) Civil Procedure Code (V of 1908)----O.I, R. 3---Suit against dead defendant/respondent---Effect---Where a suit/lis was against only one defendant/respondent of the case, it shall be invalidly instituted being against a sole dead person (defendant) and shall be a nullity in the eyes of law as a whole; it shall be a still born suit/lis, an altogether dead matter, which could not be revived; it shall, thus not merely be a defect which could be cured, rather fatal blow to the cause---Where, however the lis was instigated against more than one defendants/respondents and out of them one or few were dead, while the other(s) was/were alive, in such a situation, it shall be a validly instituted suit/lis in respect of the respondent(s), who were alive, but invalid qua those, who were dead. Malik Bashir Ahmad Khan and another v. Qasim Ali and 12 others PLD 2003 Lah. 615 approved. Nabi Bakhsh v. Malik Muhammad Akram, Settlement Commissioner and others PLD 1969 Lah. 880; The Province of East Pakistan v. Major Nawab Khawaja Hasan Askary and others PLD 1971 SC 82 and Ch. Muhammad Tufail Khan alias Tufaul Muhammad through Legal Representatives v. Zarai Taraqiati Bank Limited through Branch Manager PLD 2007 Lah. 180 ref. (b) Civil Procedure Code (V of 1908)--- ----O. XXIII, R.1---Withdrawal of suit or abandonment of part of claim---Institution of a fresh suit with permission of court in respect of subject matter of withdrawn suit or claim---Scope---Order XXIII, R.1, C.P.C. entitled the plaintiff of a case to withdraw his suit and/or abandon his claim or a part thereof, against all or any of the defendants, at any stage of the proceedings and this was his absolute privilege and prerogative---Where the plaintiff exercised such privilege he shall be precluded from instituting a fresh suit on the basis of the same cause of action qua the same subject matter and against the same defendant(s), and such bar was absolute and conclusive---Order XXIII, R.1(2), C.P.C., however, was an exception to such a bar, in that, where a plaintiff wanted to file a fresh suit after the withdrawal of his pending suit on the basis of the same cause of action, on the same subject matter and against…

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