' MUHAMMAD ATHAR SAEED J.---This revision application has been filed against the order of the VIth Additional District and Sessions Judge Karachi (South) dated 25-5-2004 in Civil Appeal No,44 of 2004 wherein the learned Additional District and Sessions Judge had allowed the appeal filed by the present respondent No,13 and set aside the order of the Vth Senior Civil Judge Karachi (South) dated 10th April, 2004 in Suit No,1812 of 1996 and allowed applications filed by the plaintiffs under Order XXII, Rule 4, C.P.C. And Order XXIII, Rule 3, C.P.C. Which had been dismissed by the learned Senior Civil Judge. Being aggrieved by the above order the present applicants who were respondents No,13 in the above appeal have filed this civil revision application.
2. Brief facts of the case are that the respondent No,13 who was appellant in the impugned appeal, had filed a civil suit No,591 of 1982 on the original side of this Court seeking administration and accounts in respect of estate and properties left by late Baba Zaheen Shah Taji and the predecessor of the present applicants, was acting as Sajjada Nasheen of his Khankah. During the pendency of the suit the present respondents who are sons and daughters and legal heirs of late Baba Zaheen Shah Taji . Had filed consent/compromise application under Order XXIII, Rule 3, C.P.C.
For appointment of Nazir as Commissioner with directions to initiate proceedings for sale of properties mentioned in the application and for dividing sale proceeds amongst them according to shares mentioned in the application. On 5-6-1991 the above application was allowed by a learned Single Judge of this. Court but subject to all just exceptions insofar as the predecessor of the present applicant was concerned since he was not, represented before the learned Single Judge. Upon the change of pecuniary jurisdiction of the Civil Courts at Karachi the above suit was transferred and renumbered as suit No,1812 of 1996 which is pending before the Vth Senior. Civil Judge Karachi (South). The present respondents then moved two applications on 5th March 2004 before the Senior Civil Judge one under Order XXII, Rule 4, C.P.C. For joining legal representatives of present respondents Nos.2 and 8 in the suit and the second application under Order XXIII, Rule 3, C.P.C. Informing the Court that further to the order of this Court allowing the compromise application and appointing the Nazir as sale commissioner, the respondents Nos.1 to 12 had arrived at a compromise to settle the three properties mentioned therewith and to dispose of the same amongst themselves. These three properties were subject of the first compromise application also which was allowed by this Court as mentioned above. However, these two applications were dismissed by the Senior Civil Judge vide his order dated 10-4-2002 on the ground that since compromise between the parties has already been allowed and subsequent compromise is unwarranted by the law and no change in the said compromise can be allowed as the parties are duty bound to follow the same.
3. Being aggrieved by the above order the respondent No,13 filed an appeal before the Vth Additional District and Sessions Judge which was disposed of by the above impugned order by which the order of the Senior Civil Judge was set aside and both the applications were allowed.
Hence this revision application, which has been filed by the legal heirs of Anwar H. Pirbhai known as Baba Anwar Shah Taji the deceased Mutawalli of the Khankah.
4. I have heard Mr. Mushtaq A. Memon learned counsel for the applicant, Mr. Fayyaz H. Shah learned counsel for the respondent No,1 and Mr. Shabbir Ahmad Khan the legal heir of Muhammad Altaf Hussain Khan respondent No,7 and the respondent No,13.
5. Mr. Mushtaq A. Memon the learned counsel for the applicant argued at length and also submitted written synopsis. The crux of the arguments of the learned counsel as highlighted in the written synopsis is detailed below:--- "The impugned judgment is void and of no legal effect on the following grounds:--- {{ DATA MISARANGED}} respondents Nos,1 to 13 could no be permitted to sell the said property.
(iv) The question whether all the three properties mentioned in the second compromise.
Application formed part of the estate of Baba Zaheen Shah Taji, is yet to be decided in the main suit and permission to sell the three properties could not be granted ahead of final adjudication in the suit. During hearing, the question arose about locus standi of the applicants to maintain present revision. By virtue of sections 96 and 115, C.P.C. Read with Order XLI, Rule 4, C.P.C. Every party to proceedings can prefer appeal/ revision. Such principle is recognized in the case of AIR 1941 Madras 577 at page 578.
The right of any party to proceedings, to prefer appeal/ revision, is inherent. The law recognizes the right of even a #TBS (i) #TBE The learned Additional District stranger to prefer appeal/ revision Judge had no power to bypass the if aggrieved or affected by decree. Provisions of Order XX Rule 13 Such principle is recognized in the C.P.C. Which obliges the Court to cases reported as PLD 1969 SC pass preliminary decree in an page 65, PLD 1993 Karachi 548, administration suit.
1999 CLC 1526 and 2003 CLC The learned. Additional District page 771. However, a party to the Judge upon allowing prayer for proceedings, as already stated, can deletion of three properties from maintain appeal/revision by virtue the scope of the suit had lost seisin of its status, as above. #TBS During hearing, the respondent No,13 (plaintiff), who alone had filed Civil Appeal No,44 of 2004 before the learned Additional District Judge had produced certified copies of application dated #TBE over the said properties and could not allow respondents Nos.1 to 13 to dispose them of.
(iii) None of the three properties, admittedly is in the name(s) of .The respondents. Therefore, the #TBS 20-5-2004 seeking withdrawal of the appeal and the order passed thereon by the Additional District Judge on the same date. The impugned judgment, however, does not consider nor discusses the effect of said application for withdrawal. The request for withdrawal of appeal had the effect of rendering the impugned judgment without jurisdiction and nullity in law. The impugned judgment does not show that the learned District Judge had made any attempt to determine veracity and legality of the alleged compromise application. Such requirement is mandatory as held in the case of 1980 CLC 967 at page 971 and the case of 1990 CLC 1614.
That the respondent No,13 (plaintiff) has continued the proceedings without joining Baba Aatif Shah Taji, who has succeeded Baba Anwar Shah Taji as Gadi Nasheen of Khankh-e-Aalia Tajia. Baba Aatif Shah Taji has filed application to join the proceedings under Order I rule 10, which is also pending for orders. The following case-laws are also relevant:--- PLD 1962 SC Title of property 291 at page 293 can be decided in PLD 1981 Kar. Administration suit. 177 1996 CLC 1847 PLO 1983 Kar. Object of adminis- 382 at page 386 tration suit is preservation and realization of estate of the deceased. #TBE 2003 SCMR Interim relief as 1368 would decide the matter finally may not be granted unless exceptional circumstances made out.
6. The learned counsel for the respondent No,5 also argued at length. The learned counsel contended that the revision application is misconceived and the applicants have no locus standi to file the revision application. In support of his contentions the learned counsel also filed written'synopsis. The crux of the arguments of the learned counsel as highlighted in the written synopsis are also detailed below: "The impugned order deals with three properties, two are situated in North Nazimabad and one is in PECHS. The applicants alleged PECHS property is Waqf property and their predecessor was Mutawalli of such property. (As at Ground No,F of. Revision at /p15 of Part I).
(i) In Waqf alai Aulad Dated 5-11-1974 (As at p/211 of Part I) two properties on Bihar Colony and another of PECHS shown to be Waqf.
(ii) After the death of Baba Zaheen Shah Taji on 22-8-1978 the predecessor of applicants (Anwar H.
Pirbhai) for management, sale and for other various purposes obtained a General Power of Attorney from respondents Nos.1 to 13 regarding the properties left by deceased Baba Zaheen Shah Taji and which have devolved upon the respondents Nos.1 to 13 being his legal heirs. In this General power of Attorney the above three properties of North Nazimabad and PECHS are also included if the PECHS property was declared as Waqf (in 1974) and allegedly managed by Anwar H. Pirbhai then why he obtained a General Power of Attorney from legal heirs.
(As at p/15 of Part II).
(iii) On realization of frauds the legal heirs revoked the said General Power of Attorney on 6-5-1979.
(As at p/27 of Part II).
(iv) In view of fact of revocation said Anwar H.Pirbhai fraudulently on * 17-5-1979 executed a registered Deed of Relinquishment whereby surrendered the Mutawalliship office in favour of respondents Nos.2 and 3. (As at p/199 of Part I).
(v) On the contrary said Anwar H. Pirbhai being Attorney of Deceased Baba Zaheen Shah Taji received rent upto February 1978 and on I 4 behalf of Baba Zaheen Shah Taji executed lease deed with President of Pakistan. These Lease Deed and rents received being lawful owner and not being Mutawalli. (As at p/35-59 of Part II). {{ DATA MISARANGED}}
(vi) The properties of North Nazimabad have been surrendered by legal heirs in favour of respondents Nos.5 and 7 which are not disputed to be waqf properties.
(a) WHETHER THE APPLICANTS HAVE LOCUS STANDI FOR FILING THE PRESENT REVISION APPLICATION?
' No Counter Affidavit was filed by the said applicants before the trial Court against the compromise application as observed in the impugned order by the Appellate Court (As at p/23 of Part I).
' The applicants' predecessor already stated that he has no concern or connection with the properties in suit as recorded in order dated 18-11-1985. (As at p/87 of Part H). Hence the applicants cannot challenge the validity of order and their action is barred under law of Estoppel under section 114 of Evidence Act.
' The Predecessor of applicants died on 31-12-1994. The. Applicants after considerable delay of 3 years filed an application under Order XXII Rule 4 C.P.C. Praying therein to implead them as legal representatives of defendant No,12 in view of his death. The application is still not decided by the trial Court.
' It is settled proposition of law: a stranger can file an appeal if he is adversely affected by that order. But the said principle would not apply to filing revision. Reliance can be made on (PLD 1995 Pesh. 16). Relevant part is reproduced hereunder: ' "The learned counsel for the petitioners placed reliance upon a judgment of the Supreme Court delivered in H.M.Saya and Company v. Wazir All Industries, Karachi (PLD 1969 Supreme Court 65) where it held with reference to sections 96 and 104 C.P.C. That a stranger to a suit or proceeding is also competent to file appeal if he is adversely affected by order. This is distinguishable because the petitioners were never vigilant in becoming a party in appeals which stands even decided five years and 2-1/2 months prior to the institution of this revision..
' The Applicants have advanced the reasons in their Ground "F" of Revision that PECHS property is waqf than the alleged rights of their predecessor (Anwar Pirbhai) have been abated at his death.
Reliance can be made on PLD 1964 SC 229:
(233) The rights of a mahant as stated in para. 93 of Rattigan's Customary Law are that "so long as he retains office he is presumed to have the 'sole management of the endowment or institution over which he presides. This paragraph states the whole interest that the Gaddinashin or mahant has in the property attached to a religious institution. He is in no sense the owner of the property.
The property belongs to the institution of which he is the Gaddi-nashin. His position is that of a Mutawalli under Muslim Law or a sebait under Hindu Law. A Mutawalli as observed by the Privy Council in 48 IA 302 is "merely a manager"...
' Even in para 93 of Rattigan's Customary Law which has been quoted above the words used are: ' so long as he retains his office he is entitled to the management of the property attached to the institution".
' This is a suit for Administration of properties of deceased and admittedly no suit for Declaration of Waqf properties was filed under section 42 of Specific Relief Act.
' According to Deed of Relinquishment executed by Anwar H. Pirbhai, the respondents Nos.2 and 3 are his legal representatives who signed the compromise application.
' Apparently, the applicants are not parties to the suit, the alleged Mutawalli office abolished at the death of their predecessor, and they are not aggrieved and/or adversely affected with the impugned order:
(b) WHAT IS THE EFFECT OF WITHHOLDING OF UNCONDITIONAL WITHDRAWAL APPLICATION OF RESPONDENT No,13 BEING APPELLANT IN APPEAL?
' The respondent No,13 has not challenged such order and as such she cannot assail in present Revision. The appeal was filed by her in terms of O,XLI Rule 4, C.P.C. As on common grounds.
' In suit for , Administration and Accounts unconditional withdrawal cannot be allowed. Reliance can be placed on 1996 SCMR 1433 (relevant page is 1441).
' That the withholding of unconditional withdrawal application by the Appellate Court is permissible in view of dictum laid down in judgment in Unichem Corporation (Pvt.) Ltd. v. Khurshed Ismail (2000 SCMR 456): ' It was prerogative of the Court, when a case had partly been heard, to allow or not to allow, withdrawal of the proceeding unilaterally at the instance of one of the parties. Part hearing or not, even otherwise, irrespective of the nature of proceedings, such an order could be withheld by the Court, if the ends of justice so require.
' As such Court can withhold unconditional withdrawal application, where part hearing or not but if the ends of justice so require. There is clear connivance of the applicants and respondent No,13, which shows mala fides and on this ground alone the revision is not maintainable.
' That the Hon'ble Court please appreciates that the impugned order is regarding the compromise application. The Court cannot allow violation of compromise. The effect of withdrawal of appeal could be defeated by the terms of compromise. Reliance can be placed on AIR 2001 SC 2790.
' The memorandum and terms of the compromise in this case became the part of the orders of the High Court itself when the writ petition was finally disposed of in terms of the compromise reached between the parties notwithstanding that there was no verbatim reproduction of the same in the order. While so, it is beyond ones comprehension as to how any violation of terms of compromise could have been viewed by the Court as a matter of mere contract between parties and under that pretext absolve itself of the responsibility to enforce it, except by doing violence to the terms thereof in letter and spirit. If Courts are not to honour and implement their own orders, and encourage party litigants - be they public authorities, to invent methods their own to short circuit and give a go-bye to the obligations and liabilities incurred by them under orders of the Court--- the rule of law will certainly become a casualty in the process--- a costly consequence to be jealously averted by all and at any rate by highest Courts in States in the Country.
(c) Whether while allowing the application of compromise and withholding unconditional withdrawal application, the appellate Court had not acted with illegality or material irregularity relatable to the exercise of jurisdiction.
' The gist of the revision is an attempt to vex the way of sell by the legal heirs based on unequivocal mala fides.
' The applicants have no locus standi, neither they have joined in suit nor adversely affected with the order, nor they have sought permission from the Court for filing the revision, nor they are legal representatives of Anwar Pirbhai to the extent of his alleged office of Mutawalli. Thus the applicants cannot question the impugned order viewed whatever be the perspective.
' The innovation of the respondent No,13 at this belated stage even about two years from filing of the Revision is another peculiar example of mala fides. The Honourable Supreme Court dictum that application can be withheld notwithstanding hearing or not, is absolutely attracted here. The unconditional withdrawal application had become infructuous when the Appellate Court decided the Appeal on merits.
' The Honourable Supreme Court (NLR 1981 SCJ 591).
' This being the point before the learned High Court the question is whether it fell within the four corners of section 115 of the C.P.C. It is not denied that the learned courts below had the jurisdiction to dispose of this question and that in disposing of it they had not acted with any illegality or material irregularity relatable to the exercise of jurisdiction. The mere fact that the orders passed by them may or may not be in conformity with law is not a question, which could have been agitated in a civil revision petition before the High Court. We consequently find no merit in this petition and decline to grant leave to appeal.
' As such mere fact that orders passed by Courts below may or may not be in conformity with law- does not warrant invocation or exercise of jurisdiction under section 115 C.P.C. As asked by the applicants in this R.A.
' The same view has taken in Ahmad Din v. The M.C. Gujranwalla (2000 YLR 773)".
7. Mr. Shabir Ahmed Khan the legal heir of respondent No,7 submitted that the applicants were not party to the suit nor they had any concern or connection with the properties dealing in compromise. He also submitted that according to relinquishment deed dated 17-9-1979 the deceased Anwar Pirbhai predecessor of present respondent has appointed respondents Nos.2 and 3 as Mutawalli who did not object to the compromise. He also furnished a deed of relinquishment dated 28th June, 2005 according to which the respondents Nos.1 to 13 being executants of this deed had relinquished the property No,SD-26, Block-G, North Nazimabad and said deed was registered at sub-Registrar Division-VIII, Karachi.
8. The respondent No,13 who had personally attended the Court had placed on record a certified copy of application dated 20-5-2004 filed in Court of Additional District Judge Karachi (South) seeking permission to withdraw the appeal and the order of VIth Additional District Judge dated 20-5-2004 in which his above application was acknowledged and the case was put off to 25-5- 2004 for order. She, however, later on did not advance any arguments as to the non-passing of any order on her application by the Additional District and Sessions Judge nor did she press for the grant of this application on this basis.
9. I have examined the case in the light of the arguments of the learned counsel and respondents and have perused the entire record of the case including the impugned order and the other orders passed in this suit, the contents of this appeal, the contents of the suit and the written statement filed in this suit by the respondents and the various orders passed in this appeal by this Court. The questions which need to be resolved in order to dispose of this application in my opinion are as under: -
(i) Whether in view of an earlier compromise no further compromise can be allowed by the Court?
(ii) Whether the applicants had any locus standi to file this revision application?
(iii) Whether the Appellate Court had properly allowed the compromise application without disposing off the application for permission to withdraw the suit?
10. The first question arises from the order of the Senior Civil Judge as the only point on which the learned Senior Civil Judge dismissed both the applications one under Order XXII, Rule 4, C.P.C. And the other under Order XXIII, Rule 3 C.P.C. Was that in the presence of ah earlier order passed under Order XXIII, Rule 3, C.P.C. Further compromise application is unwarranted and no change in the earlier compromise order can be allowed. On this ground, the learned Senior Civil Judge also dismissed the application under Order XXII, Rule 4, C.P.C. I am at loss to understand as to how this ground can be made applicable to dismiss the above application as by this application the applicants had only sought to bring the legal heirs of a couple of deceased applicants oh record which is a routine matter and is usually allowed. During his arguments the learned counsel for the applicant has failed to rely on any judgment or any law to substantiate his contention that the learned Senior Civil Judge had rightly dismissed the above applications on the above ground. The learned counsel, however, argued that the applicants had misrepresented the facts of the case and had not revealed the contents of their application under Order XXIII, Rule 3 which was initially allowed by this Court vide its order dated 5-6-1991 nor it had referred to the order of this court, dated 21-10-1991 by which this Court had accepted their application for appointment of Nazir of this Court as a Receiver. I have perused the order dated 21-10-1991 passed by this Court on the application of the present respondents and find that in that order, the Court had. Appointed Nazir as Receiver only for the purpose of collection of rent from the various properties as per schedule- and not for the sale and disposal of the properties and, therefore, in my view this order is irrelevant to the present controversy emanating from the second compromise application filed by the present respondents and not mentioning it in the application has neither helped the cause of the present respondents nor prejudiced the case of the present applicants. I have also studied both the, applications filed under Order XXIII, Rule 3, C.P.C. And I am of the opinion that the second compromise application is not in conflict with the provisions of the first compromise application and, therefore, the second compromise application could not have been rejected by the Senior Civil Judge on this ground alone.
11. A perusal of the compromise application which, is the subject matter of this controversy shows that it was made in respect of the following three properties:-
(A) House N0.42-R PECHS, Karachi.
(B) SD Block-A, North Nazimabad, Karachi.
(C) SG-26, Block .D, North Nazimabad, Karachi. ' and by the impugned order the Appellate Court has allowed this application and permitted the legal heirs to settle the above said properties at the best possible level with liberty to dispose of the same amongst themselves or to others. These properties have been mentioned at serial Nos.2, 8 and 9 schedule-B annexed to the suit filed by respondent No, 13, While perusing the records I have come across a judgment of this Court dated 18-11-1985 passed by my Lord Justice Nasir Aslam Zahid Judge of this Court as he then was. By this judgment, CMA No,3602 of 1985 filed by the present respondent No, 13 seeking deposit in Court the amount of rent- and income of the properties mentioned at serial Nos. 2 and 3 above from present respondents Nos. l, 2 and 3 and the predecessor of the present applicants was disposed off. From a perusal of this order it is seen that Mr. Izhar Ahmed Rizvi, Advocate who had appeared on behalf of the predecessor of the present applicants had made the following statement :- ' "As according to Mr.Izhar Haider Rizvi, defendant No, 12 has no concern with this property and has not collected any .Rent or lease money and has also no intention of collecting any rent or lease money in future,-".
12. I have also perused the written statement of the predecessor of the defendant filed in this Court.
In paragraph 17 the predecessor of the present applicants has stated that he had gifted bungalow No,42-R/6, PECHS, Karachi to his deceased Pir-O-Murshid Baba Zaheen Shah Taji and on page 13 sub-paragrph (ii) he has again stated that he has no right, title or interest in bungalow No,'42-R/6 PECHS, Karachi which though actually purchased by him was gifted to. His Pir-O-Murshid.
Therefore, so far as the three properties which are subject-matter of the second compromise, are concerned the predecessor of the present applicants has admitted before the Court that the said properties belong to late Baba Zaheen Shah Taji and since it is an admitted fact that the compromise application filed before the Court has been signed by all the legal heirs of late Baba Zaheen Shah Taji and since it has nowhere been claimed except during the arguments that the properties in question are Waqf properties, therefore, the only persons who could have been aggrieved by the acceptance of this compromise application by Court could be the legal heirs of deceased Baba Zaheen Shah Taji and since all of them are parties to the compromise, therefore, even the predecessor of the applicant cannot be said to be aggrieved by the order of the Court allowing this compromise application.
13. In the light of this factual background I will now examine the objection of the learned counsel for the respondent No,5 and the respondent No,7 that the present applicants had no locus standi to file the above appeal. Replying to the contention of the learned counsel for the respondent, the learned counsel for the applicant relied on the judgment of the Supreme Court of Pakistan in the case of H.M. Say a & Co. Karachi v. Wazir Ali Industries Ltd. Karachi and another (PLD 1969 SC 65). In this case the apex Court has held as under:- "The English Courts have consistently followed the practice that a person who is not a party to a suit or a proceeding may prefer, an .Appeal if he is affected by the judgment, decree or order of the trial Court provided he obtains leave from the Court of appeal. The test applied in granting leave to appeal, in such cases, is that if the person who wants to prefer the appeal might properly have been a party in the suit or proceeding then he may obtain leave to appeal. The case of In re: B. An Infact (2) on which Mr. Dingoomal has relied lends support to the above proposition. In our view this is an equitable rule which should be followed in the absence of any provision to the contrary in the Code of Civil Procedure.
' In the present case the learned counsel for the appellants had to concede that the order of ad interim injunction passed in the suit really affected Wazir Ali Industries Limited. They filed the appeal against the order with the leave of the appellate Court. In these circumstances the learned Single Judge of the High Court rightly held that the appeal preferred by them was competent. The present appeal lias no merits. It is, therefore, dismissed with costs.
6. The learned Counsel for the respondent No, 5 relied on the following two judgments
(I) Muzzafar Shah, etc. v. Mir Sarwar Khan etc. PLD 1995 Pesh.
96.
(B) Mian . Ahmad Ali v. The Rehabilitation Authority (PLD 1964 SC 229).
' In the first case the learned Lahore High Court distinguished the case of H.M. Saya quoted supra as follows "7. The learned counsel for the petitioners placed refliance upon a judgment of the Supreme Court delivered in H.M. Saya and Company v. Wazir Ali Industries, Karachi (PLD 1969 Supreme Court 65) where it was held with ' reference to sections 96 and 104 of the C.P.C. That a stranger to a suit or proceedings is also competent to file appeal if he is adversely affected by order. This is distinguishable because the petitioners were never vigilant in becoming a party in appeals which stands even decided five years and 2-1/2 months prior to the institution of this revision. Moreover, in case the petitioners are really mortgagees and are in physical possession of the disputed portion, they are never adversely affected by any judgment to which they were not a party and which was a dispute between owner alone. Similar is the view of .The Lahore High Court given in Manzoor Qadir v. Mst. Amtul Hussain (PLD 1971 Lahore 537) where the matter was confined to becoming a party, in appeal and that too after when the- leave was granted and when person interested in becoming party . Was likely to be prejudicially affected by judgment appealed against.
' In the second case the Hounorable Supreme Court held as under:- ' The rights of a mahant as stated in para 93 of Rattigan's Customary Law are that "so long as he retains office he is presumed to have the sole management of the endowment or institution over which he presides. This paragraph states the whole interest that the Gaddinashin or mahant has in the property attached to a religious intitution. He is in no sense the owner of the property. The property belongs to the institution of which he is the Gaddi Nashin. His position is that of a Mutawalli under Muslim Law or a sebait under Hindu Law. A Mutawalli as observed by the Privy Council in 48 IA 302 is "merely a manager"
' Even in para.93 of Rattigan's Customary Law which has been quoted above the words used are: ' So long as he retains his office he is entitled to the management of the property attached to the institution".
15. Interestingly, this position has also been accepted by Baba M. Atif Shah Taji who has filed an application under Order I, Rule 10 C.P.C. For being impleaded as necessary party allegedly being the Gaddi Nasheen of Khaiika-e-Alia Tajia. In the affidavit filed -in support of this application vide paragraph 11 the said intervenor who is also the attorney of the present applicants, has admitted as under:- ' "Indeed, the applicants being the legal representatives of Baba Anwar Shah Taji could not assail such party of the compromise."
16. On the perusal of the above judgments and the documents on record, I have arrived at un- escapable conclusion that the applicants have no locus standi to file an appeal against the order of the Appellate Court and the judgment of the Honourable apex Court of H.M. Saya quoted supra is distinguishable because the applicants or even their predecessor was not affected by the judgment of the Appellate Court for the reasons stated above and also for the reason that in the administration suit the predecessor of the applicants was only impleaded as a party for rendering of the accounts and was not entitled to any interest in any of the properties left behind by the deceased as has been candidly and in some cases frankly accepted by him in his written statement which is on record.
17. The learned counsel for the applicant has also pleaded that the appellate Court was not justified in allowing the appeal when the appellant before that Court/the respondent No, 13 had moved an application to withdraw such suit. In this connection it will be relevant to place some details of this application on record. The application was moved by the respondent on 20-5-2004 and the Vlth Additional District and Sessions Judge had acknowledged this application and adjourned it to 25-4-2004 and the impugned order has been passed on the same date and, therefore, the presumption is, although the same has not been discussed in the impugned order, that the Additional Sessions Judge while passing the order on merits, impliedly refused permission to the present respondent No, 13 to withdraw her application. In this connection reference can also be made to the observations of the Honourable apex Court in the case of, Javaid Iqbal v. Province of Punjab and 6 others (1996 SCMR 1433) relied on by the learned counsel for the respondent No,5.
In this case the Honourable Supreme Court held as underl:--
10. From the above discussed legal position, we are of the view that normally the Court will not disallow an application for unconditional withdrawal of a writ petition filed under Article 199 of the Constitution after its institution but if the Court comes to the conclusion that the application for withdrawal of the proceedings has been made in order to defeat the right of respondent or any other person to whom the right to pursue the petition has accrued after filing of the petition or withdrawal of the proceedings, would result in perpetuating a fraud or injustice, the Court may decline to allow the petitioner to withdraw the case. The Court may also in appropriate cases, where it comes to the conclusion that the purpose of withdrawal of proceeding is only to prevent the Court from passing an order undoing a wrong or any injustice done to a party or the withdrawal would deprive the Government or a. Public functionary to receive or recover the public dues, or the withdrawal would otherwise defeat the ends of justice, decline the prayer for withdrawal of petition filed under Article 199 of the Constitution seeking equitable relief from the Court. After going through the reasons recorded by the learned Judge in Chambers of declining the prayer for withdrawal of Writ Petition No, 11880/95, we are satisfied that reasons given by the learned Judge .Were not only relevant but the apprehension expressed by the learned Judge regarding the real motive for withdrawal of the petition came to be true when the lease rights were put to re-auction under the impugned judgment. Apart from it, there was another writ petition before the learned Judge in which the order passed by the Minister, L.G. Dated 31-8-1995, was also challenged and apparently the Government which was party in both the petitions was not supporting the order of Minister dated 31-8-1995. We are, therefore, of the view that in the circumstances of the present case, no exception could be taken to the order of learned Single Judge declining the prayer for withdrawal of writ petition No, 11880/95.
18. In the case of Unichem Corporation (Pvt.) Limited and 4 others v.. Mst. Khurseed Ismail and 3 others (2000 SCMR 456) the apex Court has held as under :- ' It is the prerogative of a Court, when a case has partly been heard, to allow or not to allow, withdrawal of the proceeding unilaterally at the instance of one of the parties. Part hearing or not, even otherwise, irrespective of the nature of proceedings, such an order can be withheld by the Court, if the ends of justice so require.
19. I am, therefore of the view that although appellate Court has riot passed a specific order refusing permission to withdraw the appeal but in this case apparently the other respondents had not filed appeal because an appeal had already been preferred by the present respondent No, 13 and in allowing permission to withdraw the appeal the rights of the other respondents would have been prejudiced and, therefore, this case falls within the observations of the Honourable Supreme Court in the judgment cited above wherein it was not in the interest of justice to allow the withdrawal of appeal by the appellant/ present respondent No, 13.
20. The upshot of the above discussion is that the revision application is without merits and is, therefore, dismissed in limine along with all pending applications.