Law: Civil Procedure Code (V of 1908)

Section: 115

  Civil Procedure Code N of 1908)-- .--0. XX111, R.2 & 5.11--Withdrawal of suit simpliciter and withdrawal with permission of Court to file a fresh suit ---Effect---Where a case was withdrawn simpliciter, a second action on the same subject was barred, while in case of withdrawal with permission of Court, to file a fresh suit, neither a fresh suit, oil the same subject was barred, by doctrine of res judicata nor the plaintiff was precluded to bring afresh suit to enforce his right.   Civil Procedure Code (V of 1908)- ---5.11---Res judicata---Withdrawal of a suit with permission to bring a fresh one, would niean to permit a plaintiff to present a fresh plaint, inasmuch as when a suit was allowed to be withdrawn, with leave to bring a fresh suit it has to be regarded as never brought---Filing a fresh suit, on the same subject, was thus not barred by the doctrine of res judicata. Civil Procedure Code (V of 1908)-- ---OXX111, R.2. & S.115---Revisional jurisdiction---Plaintiff having withdrawn his suit with pcrmi;sion of Court to bring afresh suit, filing of fresh suit on the same subject, was not barred---Finding of Appellate Court to the contrary was set aside by the High Court in revisional jurisdiction. Malik Fazal-c-Hussain for Petitioners. Nemo for Respondents. Date of hearing: 1st October, 1989. JUDGMENT Mst. Marnof Jan and her two minor daughters filed a suit for declaration to the effect that on the basis of family partition land measuring 19 kanals 16 marlas bearing khasra numbers 711 and 688 situated in village Kasaki Kallen has fallen to their Hissadari ownership alongwith defendant No.4 and that mutations 1885 and 1886 attested on 4-6-1988 on behalf of defendant No.l in favour of defendants and 5 are illegal, unauthorised and based on fraud and collusion She also sought a permanent injunction to be issued against defendants respondents. The suit was contested by defendants-respondents and finding the parties at variance on a numher of issues including issue No.5 as to whether the suit is hit by the principle of res judicata, the learned civil Judge Ist Class, Abbottabad accorded such evidence as was produced before him by the parties…