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Civil Procedure Code (V of 1908), O. XXIII, rr. 2 & 3­Withdrawal of suit granting permission to withdraw suit-Court cannot at same time refuse permission to institute fresh suit-Right to bring fresh suit follows automatically on grant of permission to withdraw suit. Under sub-rule (2) (b) of rule 1 of Order XXIII of the Code of Civil Procedure the Court has to treat, the application for the withdrawal of the suit and permission for bringing a fresh suit on the same cause of action as one and indivisible. It trust either reject or accept both the prayers in such an application. It is not open to it to allow the withdrawal of the suit and yet refuse permission to institute a fresh suit in respect of the same subject matter. To such an order of withdrawal the provisions of sub­ rule (3), do not apply, they being restricted to a withdrawal under sub-rule (1) of rule 1 of Order XXIII. Haji Abdur Rashid Sowdagar v. S. M. Lalita Roy P L D 1959 S C (Pak.) 281 ref. Muhammad Yunis Shah, Advocate Supreme Court instructed by M. Qasim Imam, Attorney for Petitioners. Nemo for Respondents. Date of hearing : 13th November 1969. JUDGMENT HAMOODUR RAHMAN, C. J.-The respondent, Shahzad Gul, had instituted a suit for possession of certain lands situated in village Qutab Garah in Mardan District, alleging that he was the exclusive owner thereof; but the petitioners had wrongfully encroached thereon abut a year before and constructed an Abadi over the land. The petitioners resisted the suit on several grounds, including limitation, adverse possession and non-main­tainability of the suit on the ground of withdrawal of a previous suit on the same cause of action. It appears that the respondent had instituted a suit previously on the same cause of action, but had subsequently applied to withdraw the same with permission to bring a fresh suit. On the 6th of October 1960, the Senior Civil Judge, Mardan, allowed the withdrawal of the suit but refused to grant permission for bringing a fresh suit on the same cause of action, on the ground that sufficient cause had not been made out for that purpose. In this view of the matter the trial Court hearing the second suit held that it was…

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