Law:

Section:

Constitution of Pakistan (1973)--- Art. 185(3)-Civil Procedure Code (V of 1908), S. 96 & O. XXIII, r. 1(2) and Specific Relief Act (I of 1877), S. 56(d)-Suit for declara­tion-Respondent-plaintiff wrongly challenging validity of notification relating to transfers and postings instead of notification relating to promotion orders of petitioners and for mandatory injunction and during pendency of suit praying for withdrawal of suit with permission to file fresh suit as provided under O. XXIII, r. 1(2), C. P. C.-Trial Court, without disposing of withdrawal application, dismissing suit on preliminary issue that suit was barred under S. 56(d), Specific Relief Act-Additional District Judge on appeal, setting aside and decree of trial Court and remanding suit for fresh decision according to law-No legal infirmity found in impugned order of remand as also upheld by High Court-Leave to appeal refused. Saeed Baig, Advocate Supreme Court instructed by M. Qasim Imam, Advocate-on-Record for Petitioners. Nemo for Respondents. Date of hearing: 22nd November, 1983. ORDER ZAFFAR HUSSAIN MIRZA, J.-Sherdil Khan, first respondent, who is a diploma-holder from Ishanullah Engineering College, Dacca, is aggrieved by the orders of promotion of the petitioners, who are so qualified, as Sub-Engineers in Grade 16 N: W. F. P. Public Works Department. In this connection two Government Notifications are relevant. The first Notification, dated I1-1-1979 by which the said respondents were promoted and second Notification, dated 13-1-1979 whereby the newly promoted officers postings and transfers were ordered. 2. The first respondent, therefore, brought a suit in the Court of Senior Civil Judge, Peshawar, for a declaration challenging the validity of Notifica­tion, dated 13-1-1979 instead of Notification dated 11-1-1979 and for mandatory injunction for his own promotion by way of consequential- relief. During the pendency of the suit, the first respondent, however, prayed for withdrawal of suit with permission to file a fresh suit as provided by Order XXIII, rule 1(2) of the Code of Civil Procedure. The trial Court without disposing of this application dismissed the suit on the preliminary…

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