Through this review petition, the petitioner seeks review of judgment dated 19-10-2004.
2. Writ Petition No.12181 of 2003 titled "Sargodha Textile Mills Limited v. Habib Bank Limited and others" filed by the review petitioner was dismissed for the following reasons that:--
(i) Subsequent to the filing of the Constitutional petition, a civil suit on the identical subject-matter between the same parties was also filed by the petitioner who thus elected its remedy under the general law;
(ii) The petitioner had not disclosed before the Court either through amendment in the Constitutional petition or through any other document or during submissions the factum of such filing of the suit. Non-disclosure of this fact disentitled the petitioner to the discretionary relief under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973;
(iii) The learned counsel for the writ petitioner after admitting that the civil suit had also been filed, explained that "non-disclosure of the pendency of the civil suit was his personal over sight which should by indulgence be forgiven." This explanation was held to be inadequate and was not accepted as it was the duty of the petitioner and its learned counsel to bring to the notice of the Court the fact of filing of the civil suit during pendency of the writ petition; and (iv) That invocation of two remedies concurrently on the same subject between the same parties was an adequate reason for non-exercise of equitable discretionary relief in favour of the petitioner.
3. The petitioner in the review petition pleaded and the learned counsel for the review petitioner submitted that i it was owing to a misunderstanding that the petitioner's learned counsel was unable to inform the Court though the fact of pendency of the civil suit had already been brought on record. And that his lordship Mr. Justice Abdul Shakoor Paracha, sitting as the Banking Judge High Court, had passed an order in the civil suit directing hearing of the civil suit and the writ petition together. And it was an omission of the office not to fix the civil suit before this Court along with the writ petition when the same was heard on 19-10-2004. It was thus an inadvertent oversight than a deliberate non-disclosure of the above fact.
4. In view of the clarification and personal regret of the learned counsel for the review petitioner and because of the inadvertent over sight, I am inclined to expunge the remarks of non-disclosure of the fact of filing the civil suit by the learned counsel for the petitioner from the judgment dated 19-10-2004, wherever and whenever the same is so recorded.
5. The learned counsel for the petitioner further submitted by placing reliance upon the case of "Municipal Committee Multan through its Chairman v. Burmah Shell Storage and Distributing Co. of Pakistan Ltd. and another" PLD 1976 Lahore 726 that in appropriate circumstances, a litigant can concurrently avail of remedies of a civil suit as well as a petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. And that the present petitioner deserved a relief in the Constitutional petition even if the suit at that time was pending and that there was no mala fide of the petitioner. Further that the suit had later been withdrawn.
To meet the above arguments, the learned counsel for the respondents stated that the petitioner had availed of the remedy of the civil suit during pendency of the writ petition and the factum had been taken note of by this Court while dismissing the writ petition through judgment dated 19-10- 2004. And that subsequent withdrawal of the civil suit was not a ground to deserve a review under rule 1 of Order XLVII, C.P.C.
6. Having heard the learned counsel for the parties this Court is of the considered opinion that the subsequent withdrawal of the civil suit by the petitioner is not a ground to seek review of the judgment dated 19-10-2004 whereby Writ Petition No.12181 of 2003 was dismissed. The reason prevailing with the Court on 10-10-2004 also was that the petitioner had elected to avail of the remedy of civil suit and it could obtain adequate and effective relief in the suit. It is also an admitted fact that the writ petition and the civil suit were between the same parties and on the identical subject-matter.
It is also noteworthy that on 4-2-2005, the civil suit was withdrawn conditionally reserving the right to file a fresh suit by the petitioner. Be that as it may, subsequent withdrawal of the suit does not vest a right in the petitioner to seek review of judgment dated 19-10-2004 dismissing the writ petition.
7. It goes without saying that in appropriate circumstances, the petitioner could avail of extraordinary remedy under Article 199 of the Constitution of Islamic Republic of Pakistan as well as the alternate remedy. As recorded in the judgment dated 19-10-2004, this Court did not consider the petitioner entitled to the discretionary relief under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 on availing the remedy of civil suit wherein effective and adequate relief could obtained by the petitioner.
8. Under these circumstances, this petition is partly accepted to the extent of expunction of remarks against the learned counsel for the petitioner. The prayer to review of dismissal of the writ petition on other grounds is however, denied. There shall be no order as to the costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.