| Citation(s) |
|---|
| 1966 SLG 5307 = 1966 SLD 5307 = 1966 PLD 597 |
WEST PAKISTAN, KARACHI
Writ Petition No. 638 of 1962, decided on 25th March 1965.
Presented By: Inamullah Khan and Waheeduddin Ahmad, JJ
Muhammad Bux Memon and Zahir Alam for Petitioners. Saeed A. Sh. for
Respondent No. 1. Z. C. Valliani for
Respondents Nos. 2 and 3. S. M. Raza for
Respondents Nos. 5 and 6. S. A. Nusrat for
Respondents Nos. 8 and 9. Noorul Arfin for
Respondents Nos. 10 and 11.
Writ Petition No. 638 of 1962, decided on 25th March 1965.
Presented By: Inamullah Khan and Waheeduddin Ahmad, JJ
Muhammad Bux Memon and Zahir Alam for Petitioners. Saeed A. Sh. for
Respondent No. 1. Z. C. Valliani for
Respondents Nos. 2 and 3. S. M. Raza for
Respondents Nos. 5 and 6. S. A. Nusrat for
Respondents Nos. 8 and 9. Noorul Arfin for
Respondents Nos. 10 and 11.
Haji ASHFAQ AHMAD KHAN AND OTHERS ---Petitioners
VERSUS
CUSTODIAN OF EVACUEE PROPERTY, PAKISTAN AND OTHERS-----Respondents
Law: Civil Procedure Code (V of 1908)
Section: 1,11
Law: Transfer of Property (Pakistan) Ordinance (IV of 1947)
Section: 20(3),20(a),20(ii)
Law: General Clauses Act (X of 1897)
Section: 21
Civil Procedure Code (V of 1908)----O. XXIII, r. 1 --Withdrawal of suit-Suit on same subject-matter already pending before withdrawal of previously instituted suit-Provision of O. XXIII, r. 1 not a bar applicable to maintainability of such suit. Where a suit is already rending before the previously instituted suit is withdrawn, the provisions of Order XXIII, rule. 1, Civil Procedure Code, 1908, would not be applicable. Order XXIII, rule 1, refers to permission to withdraw a suit with liability to institute a fresh suit after the first one has been with drawn. The provision cannot be read so as to bar a suit which has already been instituted before the other suit has been aban doned or dismissed. Mangi Lal v. Radha Mohana A I R 1930 Lah. 599 rel. Civil Procedure Code (V of 1908)----S. 11-Res judicata Essentials for application of principle-Order dismissing writ petition in limine-Whether operates as res judicata to a subsequent petition in respect of same subject-matter. In order to apply the principle of res judicata as embodied in section 11 of the Civil Procedure Code, 1908, two of the necessary essentials are that the matter should be between the same parties and that there must be final adjudication on the merits of the case. If a writ petition was dismissed in limine and an order is pronounced in that behalf, whether or not the dismissal would constitute a bar would depend upon the nature of order. If the order considers the question raised in the petition it would be an order on merits. On the other hand, if the order does not consider all the aspects of the case and disposes of the matter on some technical ground it cannot be said to be an order on merits, so as to attract the principle of res judicata. Daryao v. State of U.P. A I R 1961 S C 1457 ref. Transfer of Property (Pakistan) Ordinance (IV of 1947)----S. 3 [before amendment by Finance Ordinance (XV of 1959), S.4]-Income-tax clearance certificate granted by Inspecting Assistant Commissioner-Cannot be cancelled by Income-tax Officer-Transaction already completed as result of certificate granted-General Clauses Act (X of 1897), S. 21-Cannot empower…