' MUHAMMAD NAWAZ ABBASI, J.--- This petition under Article 185(3) of the Constitution has been directed against the judgment dated 21-6-2005 passed by the learned Judge in Chambers in the Lahore High Court, Lahore in the review petition arising out of a writ petition which was dismissed as not maintainable.
2. The petitioner filed a writ petition seeking direction for grant of benefit of BPD-Circular No,29 issued by the State Bank of Pakistan which was dismissed vide judgment, dated 19-10-2004 on the ground that the petitioner after filing of writ petition also filed a suit in the High Court in its original jurisdiction under Financial Institutional (Recovery of Finances) Ordinance, 2000 on the same subject and subsequently, having withdrawn the civil suit availed the remedy of writ petition without disclosing in the writ petition the fact relating to the filing of the suit. The petitioner then invoking the review jurisdiction of the High Court in the matter sought review of the judgment but the review petition was dismissed with the observation that the petitioner having not disclosed the fact relating to the institution of civil suit on the same subject was guilty of concealment of material fact and was not entitled to the discretionary relief under Article 199 of the Coistitution of Islamic Republic of Pakistan.
3. The learned counsel for the petitioner with reference to the averments of the plaint in the civil suit, contended that the fact relating to the pendency of writ petition was mentioned in the suit and so much so on the request of the learned counsel for the petitioner that suit may be heard along with the writ petition, the learned Judge in Chambers in the High Court exercising the powers of Banking Court on the original side vide order, dated 24-9-2003 directed for fixation of writ petition together with the suit and in view thereof, the observation in the judgment that the fact relating to the filing of the suit during the pendency of writ petition was not brought to the notice of the Court was factually incorrect. Learned counsel added that the suit was withdrawn at initial stage even before issue of the process with the permission of the Court to file a fresh suit, if need be, therefore, the observation that the remedy of civil suit as well as writ petition was availed together at the same time was against the record and in any case the filing of the suit as well as writ petition on the same subject, would not curtail the right of the petitioner to avail the appropriate remedy for decision of the case on merits but the learned Judge in the High Court due to misconception of law held that notwithstanding withdrawal of the suit, the writ petition could not proceed.
4. Learned counsel for the respondents, on the other hand, at the outset raising the question of limitation, contended that the petitioner having not challenged the original order passed in the writ petition before this Court within time, could not question the validity of the said order in the present petition in which the order passed by the High Court in review petition has been assailed and consequently, this petition so far as the order passed in writ petition is concerned, is hopelessly barred by time. The precise contention of the learned counsel is that since the order passed by the High Court in writ petition was not challenged independently before this Court within time, therefore, the same cannot be challenged together with the order passed in the review petition at this belated stage and placing reliance on Ghulam Hussain v. Kanwar Ashiq Ali Khan PLD 1980 SC 198, Ghulam Nabi v. Rashid PLD 2000 SC 63, Crown v. Haveli PLD 1949 Lah. 550 and Pir Muhammad v.
Education Town Cooperative Society Ltd. 1982 SCMR 995 submitted that the delay in challenging the order passed in the writ petition is not condonable.
5. The petitioner instead of assailing the order passed by the High Court in the writ petition before this Court preferred to avail the remedy of review before the High Court and after dismissal of review petition filed the instant petition in which the order passed in the writ petition as well as in the review petition have been challenged together. Keeping in view the circumstances leading to this petition and the ground on the basis of which the High Court dismissed the writ petition as well as the review petition, the question of limitation may not have much significance to dismiss this petition as time-barred. Undoubtedly the petitioner without availing the remedy of review petition before the High Court could challenge the order passed in writ petition before this Court but he preferred to avail the remedy of review before the High Court as the writ petition was dismissed on technical ground and thus, he having availed the remedy of review before the High Court, was not obliged to also file a petition before this Court against the same order and since the writ petition as well as the review petition were not dismissed on merits therefore, the petitioner would not be precluded to challenge the order A passed by the High Court in the writ petition along with the order passed in the review petition before this Court. The judgment referred above dealing with the question of limitation being based on entirely different facts may not be strictly applicable to the case in hand and this may be seen that the writ petition was dismissed by the High Court being not maintainable and unless it is shown that the remedy of review availed by the petitioner before the High Court was a device either to prolong the matter or to enlarge the time for filing the petition before this Court, he may not be deprived from getting decision of the case on merits. The remedy of review before the High Court was availed by the petitioner in good faith and since the time was not consumed in availing the remedy before a wrong forum, therefore, there was no legal impediment in his way to question the legality of the order passed by the High Court in the writ petition together with the order passed in the review petition. This is to be noted that the High Court instead of deciding the writ petition on merits dismissed the same being not maintainable and the review petition was also dismissed on the same ground, therefore, not only the petitioner was condemned unheard on merits but the High Court also failed to exercise the jurisdiction in proper manner. Thus, in view of the peculiar circumstances of the present case, we are of the considered opinion that D mere filing of suit and its subsequent withdrawal would not as such affect the maintainability of the writ petition.
6. Learned counsel representing the State Bank of Pakistan has argued that the order assailed in the writ petition was passed after considering all aspects of the case and petitioner had no case even on merits, therefore, no exception can be taken to the dismissal of writ petition as well as the review petition by, the High Court.
7. Learned counsel for Habib Bank Limited has submitted that circular in question issued by the State Bank of Pakistan was no more in the field and since no relief could be granted to the petitioner in terms of the above referred. Circular at the time when writ petition was filed, therefore, the decision of the writ petition even on merits would have no effect.
8. Having heard the learned counsel for the parties at length and perused the record with their assistance, we find that after institution of writ petition, the petitioner also filed a civil suit on the same subject in the High Court in the original jurisdiction under Financial Institutions (Recovery of Finances) Ordinance, 2000 and having brought this fact to .The notice of learned Judge in the High Court exercising the original jurisdiction under Financial Institutions (Recovery of Finances)
Ordinance, 2000, requested the Court for taking up the suit with the writ petition and order was passed accordingly but subsequently the petitioner after withdrawing the suit preferred to pursue the remedy of writ petition and in these circumstances he was neither guilty of the concealment of any material fact nor was disentitled to get decision of the writ petition on merits. The suit was withdrawn by the petitioner with a view to pursue the remedy of writ petition but writ petition was dismissed without adhering to the merits of the case on the ground that the remedy pf writ petition as well as civil suit could not be availed in the same matter whereas factually the petitioner availed only the remedy of writ petition. The multiplication of litigation on the same subject before the same forum or different forum is not permitted and must be discouraged, but in certain situations the availing of the remedy of civil suit may not be considered bar to avail the remedy of writ petition on the same subject and vice versa. In the Murree Brewery Co. Ltd. .v. Pakistan through the Secretary to Government of Pakistan Works Division PLD 1972 SC 279 this Court has held:- "The rule that the High Court will not entertain a writ petition when other appropriate remedy is yet available is not a rule of barring jurisdiction, but a rule by which the Court regulates its jurisdiction.
One of the well-recognized exceptions to the general rule is a case where an order is attacked on the ground that it was wholly without authority. Where a statutory functionary acts mala fide or in a partial, unjust and oppressive manner, the High Court, in the exercise of its, writ jurisdiction, has power to grant relief to the aggrieved party. The appeal under section 36 of the Ordinance is limited to a matter which is within the jurisdiction of the authority concerned and the scope of the Ordinance. A question of jurisdiction is a matter for review, which is based not on the merits, but on the legality of the lower authority's proceedings."
9. The High Court in the present case without appreciating the legal position declined to exercise the jurisdiction vested in it under the Constitution on technical ground and failed to dispose of writ petitions as well as the review petition on merits in accordance with law.
10. In the light of foregoing reasons, we convert this petition into an appeal, set aside the judgment of High Court in the writ petition as well as in the review petition and send the case back to the High Court for the decision of writ petition on merits which shall be deemed to be pending before the High. Court. This appeal is allowed in the above terms with no order as to 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.