1. ' MUZAFFAR ALI, J.--- The award No,D.K-1(1)91-399/91, dated 27-6-1991 gave birth to the instant litigation, when the appellants/petitioners challenged the vires of the same through Petition No, Civil Suit 1 of 1997 under sections 18 and 30 of Land Acquisition Act, 1894 (hereinafter called the Act) referred to Referee Court/District Judge, Skardu by the Collector concerned. The petitioner contended in the petition that they being the owners, of the acquired land, under Khasra Nos.5113 and 5123 are entitled to be paid the compensation amount under the impugned award instead of the respondents Nos.1, 2 and 3 and sought cancellation of the impugned award.
2. ' The learned Referee Court adjudicated the petition on merits and finally pronounced the judgment, dated 7-5-1999, by decreeing the petition in favour of the petitioners. The judgment/decree passed by the learned Referee Court was assailed before this Court and the then Chairman of this Court remitted the matter to the Referee Court after framing an additional issue, for disposal of the same on merits keeping the other points of the appeal pending sine die before him vide his order, dated 24-5-2000. The learned Referee Court proceeded to determine the additional issue framed by the then Honourable Chairman of this Court and finally gave his finding on the said issue in favour of the respondents on 15-9-2001 and sent the file to this Court as per direction. The Honourable Chairman of this Court again remitted the matter to the Referee Court to adjudicate the dispute afresh vide. His order, dated 15-10-2002.
3. ' Another interesting aspect of the case revealed when the appellants/petitioners filed application under Order XXIII, rule 1, C.P.C. For unconditional withdrawal of the petition, before the Referee Court, when the petition was fixed for final arguments. The application takes its root from the judgment/decree, dated 7-5-1999, passed by the learned Referee Court, in favour of the appellants/petitioners, as such that, the petitioners showed extra-vigilance, after getting the above decree in their favour and succeeded to receive, the compensation amount from the Collector on 17-5-1999, but before the lapse of statutory period of limitation of any appeal against the above decree in favour of the petitioners. The respondents filed the 1st appeal on 18-5-1999 against the decree, dated 7-5-1999, before this Court and after the said appeal the learned Referee Court as well as this Court delivered orders dated 24-5-2000, 15-9-2000 and 15-10-2002, details of the above orders have been inserted in paragraph 2 of this judgment, and finally, when the matter was sub judice before the learned Referee Court, and was fixed for final arguments, the petitioners filed the application on 10-8-2004, the same was disallowed on 9-7-2005 by the Referee Court, hence, this appeal before this Court.
4. ' I heard both the counsel for the parties. The learned counsel for the appellant raised the following points:--
(a) That the application for unconditional withdrawal of the suit under law cannot be disallowed and the learned Referee Court has violated the related law by disallowing the application.
(b) That no person can be compelled to remain as plaintiff-petitioner or appellant unless a person wilfully comes before the Court and remains as such.
(c) That the impugned award was m fact in favour of the petitioners and the petitioners have because of some misconception assailed the same and now the petitioners have realized their fault as such they do not want to contest the case.
5. ' At the other end, the learned counsel for respondents/ defendants, the impugned order passed by learned Referee Court as under:--
(a) That though the unconditional withdrawal of any suit, petition or appeal may not be disallowed under law, but the Courts of law have powers to disallow mala fide applications of withdrawal with ulterior motives as in the instant case. The petitioners have received the disputed amount of the compensation prior to the final disposal of the dispute of the entitlement of the parties to the compensation amount, by the Courts of law and also prior to the final determination of the ownership of the parties in respect of the acquired land under the impugned award. The learned counsel relied on PLD 1988 Kar.
6. 560.
7. ' I have considered the above points raised by both the learned counsel for the parties, keeping in view the peculiar circumstances of the case. Obviously, Order XXIII, rule I, C.P.C. Purports withdrawal of a suit, petition or an appeal as a matter of right if the plaintiL, petitioner or an appellant does not seek permission of the Court to file the same afresh, but the higher judiciary has introduced exceptions to the above general rule, whenever the higher Courts have found mala fide intention or injustice to the opposite party, behind the withdrawal application in cases of special character. In this regard observation made by my learned brother Judges of the Karachi High Court reported in PLD 1988 Kar. 560 may be quoted for reliance upon, as under:-- "----0. XXIII, R.1---Withdrawal of suit by plaintiff---Power of Court to decline application for withdrawal.
8. ' Though under Order XXIII, rule 1, C.P.C. a plaintiff has the right to withdraw the suit, if he is not seeking the permission to file a fresh suit on the same cause of action but the Court can decline such an application in a suit, where all the parties are treated as plaintiffs and defendants for the purpose of grant of relief or in a case where the grant of the same, would perpetuate injustice or fraud."
9. ' In the present case also the petitioners have disputed the impugned award claiming to be the owners of the acquired land, rebutting the ownership of the respondents and the ownership, regarding the acquired land between the parties is yet to be determined by the competent Court, hence, nature of the petition is as that, the parties to the petition may be treated as petitioners and respondents for the purpose of grant of relief, either the petitioner or the respondents may be declared owners of the acquired land and as such either of them may be entitled to receive the compensation amount under the disputed award. The mala fide purpose of the withdrawal of the petition is also evident in the case, that, the petitioners have succeeded to receive the compensation amount either in coalition with the Collector or otherwise showing extra vigilance just after the decree, dated 9-7-2005, passed by the Referee Court, (the same is reversed later on) without waiting for expiry of the statutory period to file an appeal against the above decree. The petitioners again played a trick with the respondents as such that, they contested the 1st and 2nd rounds of the appeals before this Court without disclosing the fact that, they have received the compensation amount and also did not file any application for withdrawal of the petition and dragged the respondents for a long period of more than five years in litigation and at last, when the petition was fixed for final arguments before the Referee Court, the petitioners filed the withdrawal application dated 10-8-2004, but again the petitioners did not disclose the fact of receiving the compensation amount even in the same application too. The facts narrated show the fraudulent and mala fide conduct of the petitioners, which call the Court to disallow the withdrawal application, otherwise injustice or fraud would be perpetuated.
10. ' Since, the character of the case is as such, that, the parties to the petition are treated as petitioners and respondents for the purpose of grant of the relief, therefore, I am intending to transpose the respondents into the list of petitioners as the original petitioners are not willing to contest the petition, but the counsel for the petitioner objected on the point with the contention that, the petition is a reference under sections 18 and 30 of the Land Acquisition Act and the Referee Court as well as this Court having limited jurisdiction to entertain the same and transposition of the parties is not within the ambit of power of this Court. The objection of the learned counsel in my opinion, is not tenable, for the reason that, section 53 of the Act provides application of Code of Civil Procedure to all the proceedings before the Referee Court, save as any provision of the Code would be inconsistent with the provisions of the Land Acquisition Act. Powers under Order I, rule 10 of the Civil Procedure Code being not inconsistent with any provision of the Act, may be invoked in proper cases like the case in hand to meet the ends of justice and to determine the real controversy between the parties. In this regard I am supported by the case-law laid down in 1963 Kar. LT 724, hence, the objection raised by the learned counsel for the appellants is repelled.
11. 'The upshot of the above discussion is that the appeal is dismissed, respondents Nos.1, 2 and 3 to the original petition under sections 18 and 30 are transposed as petitioners and the petitioners/appellants are transposed as respondents for the purpose of relief in the petition. The case is remanded to the Referee Court to adjudicate the matter on merits taking the same from the stage it was in abeyance.
12. No orders as to costs