| Citation(s) |
|---|
| 1959 SLG 394 1959 SLD 394 1959 PLD 287 |
Supreme Court of Pakistan
Civil Appeal No. 3-D of 1958, decided on 27th May 1959. DATE of hearing : 19th May 1959
MUHAMMAD MUNIR, C.J., M. SHAHABUDDIN AND A. R. CORNELIUS, JJ
Hamidul Huq Chowdhury, Senior Advocate Supreme Court (Ahmad Subhan, Advocate Supreme Court, with him), instructed by D. N. Dutta, Attorney for Appellant. D. C. Bhattacharjee and A. K. M. Nurul Islam, Advocates, Supreme Court, instructed by Abdul Wadud Mal
Civil Appeal No. 3-D of 1958, decided on 27th May 1959. DATE of hearing : 19th May 1959
MUHAMMAD MUNIR, C.J., M. SHAHABUDDIN AND A. R. CORNELIUS, JJ
Hamidul Huq Chowdhury, Senior Advocate Supreme Court (Ahmad Subhan, Advocate Supreme Court, with him), instructed by D. N. Dutta, Attorney for Appellant. D. C. Bhattacharjee and A. K. M. Nurul Islam, Advocates, Supreme Court, instructed by Abdul Wadud Mal
Haji ABDUL RASHID SOWDAGAR---Appellant
VS
S. M. LALITA ROY and others--Respondents
Law:
Section:
Civil Procedure Code (V of 1908), O. XXIII, r. 1-Nonfulfilment of term in order permitting withdrawal with liberty to institute fresh suit-Consequence. Where a plaintiff to whom a permission to institute a fresh snit was given does not comply with the conditions on which he obtained the permission he cannot be deemed to have withdrawn his suit under sub-rule (1) of rule 1 of Order XXIII of the Civil Procedure Code, 1908 with the consequence that he is so precluded by sub-rule (3) of rule 1 of Order XXIII from instituting a fresh suit. No such consequence is stated in sub-rule (2), rule 1 of Order XXIII, as following from the withdrawal of the suit and not complying with conditions on which permission to withdraw was given. Nor is it correct that since the conditions on which -the permission to institute a fresh suit was given has not been complied with the original suit must be deemed to be pending. The withdrawal is complete the moment an order to that effect is recorded and the right to bring a fresh suit follows from the withdrawal so permitted. If any of the terms on which permission to withdraw with liberty to institute a fresh suit was given is not fulfilled the consequence would be that unless the condition is complied with there is no proper suit before the Court. In such a case the defendant is entitled and the Court has the power to demand that if the plaintiff wishes to proceed with the suit he must comply with the terms on which permission to withdraw was given. And leaving the question of limitation aside, the plaintiff may at any time comply with the terms and on proof that he has so complied may demand the Court to proceed with the suit. The order of dismissi1 of the suit can be passed only after it is found that the plaintiff, on an objection taken, is not willing to comply with the terms on which he was permitted to withdraw the suit with liberty to institute a fresh suit. Whether the condition has or has not been fulfilled is for the Court to determine in each case and in determining that question it has an inherent power to condone bona fide delays, omissions, etc. Mela v. Labhu A I R 1955 Pb. 97 approved. JUDGMENT MUHAMMAD MUNIR, C.…
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