JIND WADA vs ADDITIONAL DISTRICT JUDGE S — 2023 MLD 541 LAHORE-HIGH-COURT-LAHORE

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JIND WADA VS ADDITIONAL DISTRICT JUDGE S. 151 & O. XXIII, R. 1---Restoration of suit---Suit for declaration was instituted by the petitioners claiming that they were owners of the agricultural land on ground of inheritance; that registered sale-deed in favour of respondent/defendant was fictitious, forged, fraudulent, illegal; and that mutation sanctioned on basis of the said deed was also illegal---Petitioners made statement in the Trial Court that since duplicate of lost Part Sarkar had been allowed, so, there was no need for the present suit; and that and in case of emergence of the need, the suit would be filed again---Trial Court, on basis of such statement, dismissed the suit as withdrawn---Petitioners filed application under S. 151 of C.P.C., asserting that some other property was also the part of the claim; that their suit dismissed as withdrawn be restored; and that regarding remaining claim, the decision should be made upon merit---Said application was concurrently dismissed---Held, that necessary requirement was that notice be given to other party as to see whether the application of withdrawal of suit would fall within the domain of R. 1 of the O. XXIII, C.P.C.---Merely recording of statement of plaintiff allowing withdrawal of suit with permission to file fresh suit on the basis of same cause of action on payment of cost was not sufficient---No application was filed by the petitioner for withdrawal of the suit---Order sheet annexed with the petition reflected that no person from the defendant side was present on that date of recording statement---Respondent had joined the proceedings of the suit, filed his written statement and was present on all the previous dates---Neither the Court issued any notice to the respondent, nor mentioned regarding his presence in the order sheet---Permission for filing fresh suit could not be given under such circumstances---Petitioner did not claim that the statement was made due to some mistake or because of some coercion or any other technical reason---Application of S. 151, C.P.C. was alien to the proposition of petitioners' case---Constitutional petition was dismissed accordingly.

JIND WADA vs ADDITIONAL DISTRICT JUDGE S — 2023 MLD 541 LAHORE-HIGH-COURT-LAHORE

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