Law:

Section:

Civil Procedure Code (V of 1908)-------O. XXIII, R. 1---Permission to file fresh suit---Lower Appellate Court allowed the respondent/plaintiff to withdraw the suit with permission to file fresh one---Validity---While granting such permission, Lower Appellate Court did not specify the formal defect in the suit---Order of the Lowe Appellate Court was set aside in circumstances. Abdul Manan and others v. Muhammad Ibrahim and others PLD 1999 Lah. 438 and Muhammad Ramzan v. Mirza Naseer Beg 198.0 CLC 1555 ref. JUDGMENT Order, dated r7-4-1999 passed by the learned first appellate Court whereby the respondents were allowed to withdraw the appeal with permission to file a fresh suit has been assailed. 2. The two respondents herein, field a suit for permanent injunction claiming therein that they owned a three storeys house bearing No.2/516 in Mohallah Muslimabad, Gujrat in which respondent No. l was running a school. It was further stated that the doors, windows and the ventilators in all the three storeys alongwith a ' Balconi' opened towards the west even before the partition, through which they were enjoying the light and air. It was further averred that on the west, the petitioners owned Plot No.2/515 on which they wanted to raise constructions in such a manner so as to close the openings of the respondents. It was also contended that plaintiffs-respondents had acquired easement rights by prescription. The suit was contested. The case of the petitioner-defendants has been that between the house of the petitioners and the respondents they had voluntarily left a 5 ft. passage the title of which vested in the petitioners. 3. Necessary issues in the case were framed and the suit was tried. It was held that the plaintiffs-respondents failed to establish any right of easement in the property in dispute. Accordingly, the suit was dismissed on 8-12-1996. 4. Respondent No.1 alone appealed against the said judgment, and decree. It came up for consideration before the learned first appellate Court on 17-4-1999 in the presence of the counsel for the parties. The learned counsel for respondent No.1 made a statement that during the pendency of the suit, the petitioners had…

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