Law: Civil Procedure Code (V of 1908)

Section: 11 , 2 , 115

Civil Procedure Code (V of 1908)--- ---- O.VII, R.11, OXXIII, R.2 & S.115 --- Withdrawal of suit with permission to institute fresh suit on payment of costs --- Plaintiff filing fresh suit without payment of costs --- Court's order to deposit costs in Court after institution of fresh suit, also not complied with --- Effect --- Where any of the terms on which permission to withdraw, with liberty to institute ' fresh suit was given, had not been fulfilled, defendant would be entitled and Court had the power to demand that if plaintiff wished to proceed-with the suit he must comply with terms on which permission to withdraw was given ---Plaintiff -having not complied with the condition, there was no proper suit before the Court --- Judgment and decree of Courts below were set aside and plaintiff's suit was dismissed in revision. Haji Habib Rashid Sowdagar v. S.M. Lalita Roy and others P L D 1959 SC (Pak.) 287 fol. Khalil-ur-Rehman for Applicant. Khalid Daud Pota and S.M. Muslim Naqvi for Respondents. Date of hearing: Ist November, 1990. JUDGMENT Respondent No.1 Malang Dad had filed Suit No.3907/80 -against the appellant and others in the Court of IV Senior-Civil Judge, Karachi, for declaration and injunction in respect of property bearing No.AK-20A.70 Leyari, Karachi. During the pendency of the suit K.M.C. executed a lease deed in favour of the applicant. The respondent No.1 applied for withdrawal of the suit with permission to file another suit. The advocate for the applicant who was defendant No.1 in the suit opposed the prayer and also claimed compensation under Section 35-A, C.P.C. as prayed in the written Statement. Learned Senior Civil Judge passed order dated31-8-1981 as follows:-   "Permission is granted to withdraw the suit with permission to file afresh. The application allowed with cost of Rs.100." Respondent No.1 then filed suit No.2280/85 in the Court of First Senior Civil Judize Karachi. In the plaint reference was made to the order passed granting permission to file a fresh suit. The applicant filed written statement but maintainability of the suit was not challenged on the ground that the cost had not been paid. It…