Law: Civil Procedure Code (V of 1908)

Section: O.XXIII,R.1,1(3)

Law: Constitution of Pakistan, 1973

Section: 32,199,226

Civil Procedure Code (V of 1908)--- -----O.XXIII, R.1(3)---Constitution of Pakistan, Art.199---Constitutional petition, withdrawal of---Fresh suit---Bar under O.XXIII, R.1(3), C.P.C.---Applicability---Plaintiff filed constitutional petition but thereafter withdrew the same unconditionally---Plaintiff filed suit with regard to same subject matter---Validity---Held, withdrawal of constitutional petition did not serve to bar the suit under O.XXIII, R.1, C.P.C. Hashim Khan v. National Bank of Pakistan PLD 2001 SC 325; Malik Shahid Mehmood v. Malik Afzal Mehmood and others 2011 SCMR 551 and Shahbaz Khan v. Additional District Judge, Ferozewala and others 2017 SCMR 2005 distinguished. Amber Ahmed Khan v. P.I.A. Corpn. PLD 2003 Kar. 405 and Sarguja Transport Service v. State Transport Appellate Tribunal, Gwalior and others AIR 1987 SC 88 rel. THIS ORDER PASSED BY: YOUSUF ALI SAYEED, J.---- In terms of the Order made on 21.02.2019, a question of maintainability was framed, which turns on the point of whether the present Suit is barred under Order XXIII Rule 1(3), C.P.C., in as much as Constitutional Petition No. 378 of 2011 had earlier been filed by the Plaintiff before this Court on ostensibly the same subject, and had then been unconditionally withdrawn. For ease of reference, Order XXIII, Rule 1, C.P.C., states as follows: "1. 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) Where the Court is satisfied- (a) that a suit must fail by reason of some formal defect, or (b) that there are other sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or abandon such part of a claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of a claim. (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…

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