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O.IX Rr. 8, 9 &
O.I, R. 10---Specific Relief Act (I of 1877) S. 42, 12 &
54---Constitution of Pakistan, Art. 199---Constitutional petition---Suit for declaration, specific perfor mance and permanent injunction---Suit was dismissed to the
extent of two defendants for non-deposit of process fee---Later, suit against the third
defendant was dismissed for non-prosecution ---Plaintiff's
application for restoration of suit under O. IX R. 9, C.P.C. was allowed
and all three defendants were arrayed in the suit again----Third
defendant filed application under O.I R. 10, C.P.C. praying that since
the suit against the other two defendants had already been dismissed at
the time of the dismissal for non-prosecution , they were liable to be deleted from the list of the
defendants---Said application of the defendant was dismissed concurrently
on the ground that after restoration, the suit had taken a new
birth---Validity---Controversy between the parties was whether a suit is
restored to the position when the same was filed or to that when it was
dismissed for non-prosecution ---Suit
upon restoration would restore to the position when it was dismissed for non-prosecution ---Suit
after dismissal in default would restore to its position where it was
dismissed for non-prosecution and
all ancillary orders made prior to the date of the dismissal become alive and operate retrospectively---Any orders made
in the interregnum from dismissal of the suit to its restoration would, however,
collapse---Orders of the courts below were set aside--Constitutional
petition was allowed, accordingly.
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