' IQBAL HAMEED-UR-RAHMAN, J.---Through the instant application under Order =II, C. P. C . , the applicants /plaintiffs seek withdrawal of the suit for declaration with permanent injunction, rendition of accounts and ancillary relief as prayed with permission to re-file, if need so arises in future.
2. Succinctly the facts required for the determination of this application are that the applicants/plaintiffs had filed a suit for declaration with permanent injunction, rendition of accounts and ancillary relief as prayed under section 9 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 on 6-3-2010 along with C.M. No,200-B of 2010 under Order XXXVIII, C.P.C.
Read with section 151 as well as section 16 of the Financial Institutions (Recovery of Finances)
Ordinance, 2001, praying that the defendant be directed to submit statement of accounts for the loan account as well as the current account with a second prayer for restraining the defendant from alienating or auctioning and taking possession of their personal properties in which vide order dated 2-4-2010, this court had issued notice and ordered that status quo shall be maintained to the extent of properties in which the plaintiffs' families are personally residing and upon notice, the defendant filed C.M.No,210-B of 2010 calling in question order dated 2-4-2010 on the ground that the subject-matter of this suit as well as the properties, regarding which the restraining orders have been passed, is sub judice before the honourable Supreme Court of Pakistan in C.P.No,39 of 2009 filed by the defendant against the plaintiff and 9 others and the real son of plaintiff No,2 had surrendered the said properties before the NAB Authorities under an undertaking to make a statement before the court of law or any other forum for the transfer of the above said asset in favour of the defendant Bank of Punjab and presently the entire matter relating to the liabilities of the plaintiffs including all the issues raised in the suit is sub judice before the honourable Supreme Court of Pakistan under Article 184(3) of the Constitution of Islamic Republic of Pakistan, 1973 in C.P.No,39 of 2009 and the NAB authorities directly under the supervision of the honourable Supreme Court have taken cognizance of the matter and a Salvation Committee has been formed by the honourable Supreme Court in the matter and NAB is probing into the matter and the plaintiffs have approached the NAB Authorities for the plea bargain and in the above circumstances, the instant application has been filed by the plaintiffs seeking withdrawal of the suit on the contention that the suit of the applicants/plaintiffs has become infructuous in view of the constitution of the Salvation Committee with regard to moveable and immoveable properties and with the following prayer, which is as under:-- "In view of the foregoing, it is most respectfully prayed that the plaintiffs be allowed to withdraw the suit so as to amicably settle the matter by way of plea bargain with permission to re-file if the need so arises in future."
3. Learned counsel for the defendant Bank of Punjab has stated that through the instant application under Order XXIII, C.P.C., the applicants/plaintiffs want to withdraw the lis before this Court so that an amicable settlement and plea bargain may be executed, failing which the plaintiffs may institute the suit again and accordingly the prayer is made in the instant application to allow the plaintiffs to withdraw the suit so as to amicably settle the matter by way of plea bargain with permission to re-file if need so arises in future and according to Order XXIII rule 1 C.P.C., the plaintiff may withdraw his suit or abandon part of his claim but as per clause (b) to rule 2 of Order XXIII, there are other sufficient grounds for allowing the plaintiff permission to institute a fresh suit for- the subject-matter of a suit or part of the claim and in the instant case, there exists no sufficient grounds for granting any such permission as subject-matter of the suit in its entirety is subjudice before the honourable Supreme Court and the plaintiffs have made a statement in unequivocal terms that "he is willing and ready to satisfy the legitimate claim of Bank of Punjab but only seeks protection that he should not be humiliated along with his family members and children" and has further stated that "his wife Mst. Fareeha and one son Hamza Afzal, 18 years of age and another son Haris Afzal have been detained along with him although they are not involved in the case and if there is any property in their name or bank balances either in Pakistan or outside or they have purchased any jewelry etc. That was on his own instance and they have nothing to do with the same" and the honourable Supreme Court has held that "be that as it may, it is now for the NAB to settle the matter with him", as such, the honourable Supreme Court have already formed a Salvation Committee consisting of all representatives of the parties and the said Committee shall itself decide the modalities for the disposal of property in question on their own. It is further stated that the matter is now before the NAB and before proceeding with the plea bargain settlement, the liability is to be determined under the supervision of the honourable Supreme Court by the NAB Authorities, as such, the same is in accordance with the National Accountability Bureau Ordinance, 1999 as the preamble of the NAB Ordinance states that to eradicate corruption and corrupt practices and hold accountable all those persons accused of such practices and matters ancillary thereto, it is necessary to provide for effective measures for the purpose of detection, investigation, prosecution and speedy disposal of cases involving corruption, corrupt practices, misuse or abuse of powers, misappropriation of property, taking of kickbacks, commission and for matters connected and ancillary or incidental thereto. It is further stated that the matter is now under the direction of the honourable Supreme Court, pending with the NAB Authorities and they are to determine the liabilities and when all the subject-matter of the suit is sub judice before the honourable Supreme Court, there is no sufficient ground under sub-clause (b) to rule 2 of Order XXIII, C.P.C. For this court to allow withdrawal of the suit with the permission for filing of a fresh suit on the same subject-matter and this court could allow compromise or an amicable settlement to become a rule of the court only under Order XXIII rule 3 C.P.C. i,e, after the settlement or compromise has been entered into. It is further stated that in view of the above circumstances, the NAB is to determine the liability before entering into any plea bargain, agreement or settlement and the same is being done by them on the basis of the evaluation reports. It is further stated that all the pleas, which have been taken in the suit, have been raised before the honourable Supreme Court, as is apparent through the order of the honourable Supreme Court dated 19th and 20th April, 2010. It is further stated that the honourable Supreme Court in its order dated 13-4-2010, has held that if any grievance the plaintiffs have, they shall approach the honourable Supreme Court or the NAB Court for the redressal of their grievance, as such, the suit of the plaintiffs cannot proceed before this Court. It is further stated that the learned counsel appearing on behalf of Sheikh Afzal had, in categorical terms, stated before the honourable Supreme Court that "he accepts/admits liabilities of the amount outstanding against him, which he has taken from BOP and handed over this amount to his relatives including wife and sons, who have purchased the properties as Benamidars and if opportunity is given to him, he is ready to discharge his liability". It is further stated that the plaintiffs at no stage had requested the honourable Supreme Court to determine their liabilities rather they had accepted the liabilities in toto, as such, accepting the application would tantamount to encroaching upon the jurisdiction of the honourable Supreme Court, as has been held by this Court in its order dated 13-4-2010 and at the most the plaintiffs can be allowed to withdraw the suit simpliciter without any permission as the suit could not be adjudicated upon by this court, therefore, the same merits dismissal rather than allowing the plaintiff to withdraw the suit when fraud has been committed by the plaintiffs and in this respect, reliance is placed upon Haji Muhammad Boota and others v. Member (Revenue), Board of Revenue Punjab and others PLD 2003 SC 979, wherein it has been held as under:- "the withdrawal would not be allowed if it results in perpetuating a fraud or injustice. The court may in such circumstances decline the petitioner to withdraw the suit. 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 any order undoing a wrong or an injustice done to 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".
4. Learned counsel for the plaintiffs has stated that although the personal allegations have been levelled against the counsel for the plaintiffs but the fact of the matter is that vide order dated 13- 4-2010 passed in C.M.No,210-B of 2010, this court had accepted the said C.M. And the order dated 2- 4-2010 passed in C.M.No,200-B of 2010 with regard to restraining the defendant Bank of Punjab from alienating or auctioning and taking possession of their personal properties where the families of the plaintiffs are residing was recalled/withdrawn and dismissed C.M.No,200-B of 2010 to the extent of the second prayer and while through a separate order of the same date i,e, 13-4-2010 on C.M.No,200-B of 2010 filed by the plaintiffs, the said C.M. Was kept pending to the extent of the first prayer, seeking a direction for providing of statement of accounts of loan as well as current accounts and thereafter, this court vide its order dated 5-5-2010, has rightly held that "in view of the above circumstances, when the matter being sub judice before the honourable Supreme Court, it would be appropriate that the further proceedings in the matter before this court is stayed, therefore, till the decision by the honourable Supreme Court, the proceedings in the instant suit are stayed" and in view of the same, the said order i,e, 5-5-2010 is perfectly justifiable and legal order and in this respect, reliance is placed upon Pakistan Lawyers Forum v. General Pervaiz Musharaf and others 2000 SCM R 897, wherein it has been held that:-- "Stay of proceedings could not be equated with abdication of jurisdiction, matter being procedural, High Court, was competent to regulate its own procedure and common procedure was that such- like petitions were stayed by the respective High Courts pending disposal of similar matter in the Supreme Court". ' and Tariq Mohsin Siddiqui and 2 others v. The State through National Accountability Bureau 2005 M LD 1827, wherein it has been held that:-- "High Court in view of the fact that issue in question was sub judice before the Supreme Court, adjourned the matter sine die till such time as an authoritative pronouncement was received from the Supreme Court and observed that in the meanwhile, the proceedings in the reference pending against the applicant company before the Accountability Court, shall remain suspended."
' And relying upon the said judgment i,e, 2005 M LD 1827, learned counsel for the plaintiffs urges that this court keeping in view the said judgment could adjourn the matter sine die till such time as an authoritative pronouncement has been made by the honourable Supreme Court. It is further stated that he would like to raise a preliminary objection that the instant application could not be decided without a formal reply from the defendant, however, he would not press the same if the court decides to proceed without a reply. It is further stated that his application is to be dealt with in toto either it has to be rejected or it has to be accepted and in this respect, reliance is placed upon Kulsoom and another v. Trustees of Port of Karachi through Chairman K.P.T. Karachi and 2 others 2002 SCM R 718, wherein it has been held that:-- "Withdrawal of suit with permission to bring fresh suit on the same cause of action---Supreme Court granted leave to appeal in the light of dictum laid down in the case of Karim Gul and another v. Shahzad Gul and another 1970 SCM R 141 to consider the contention of petitioner that his application for withdrawal of suit and permission for bringing fresh suit on the same cause of action, was one and indivisible, and the Trial Court could either reject or accept both the prayers, but could not accept the one and reject the other."
' It is further stated that all legitimate claims are to be determined and adjudicated upon by the courts of civil jurisdiction and the same cannot be determined by the NAB or by the High Court.
However, the contention of learned counsel for the defendant that this court by adjudicating upon the subject-matter of the suit and by passing orders is committing contempt of court does not find support in law or precedents of the honourable Supreme Court.
5. In rebuttal to the arguments of learned counsel for the plaintiffs, learned counsel for the defendant has stated that the plaintiff has made a categorical statement before the honourable Supreme Court on 19th and 20th April, 2010 that "he accepts/admits liabilities of the amount outstanding against him, which he has taken from BOP and handed over this amount to his relatives including wife and sons, who have purchased the properties as benamidars and if opportunity is given to him, he is ready to discharge his liability but without associating the NAB and the Bank of Punjab", as such, on the admission of liabilities, there is no cause of action of the plaintiffs for filing a suit for rendition of accounts. Relying upon Mst. Zahida Sattar and others v.
Federation of Pakistan and others PLD 2002 SC 408, wherein it has been held that:- "Where accused holder of public office was being tried for accumulation of wealth acquired by him by illegal and corrupt practices by misusing his official capacity in the name of his spouses/relatives, the dispute was not of a civil nature between two private parties, for there was no dispute between the accused i,e, the alleged real owner and his other relatives/spouses i,e, ostensible owners/alleged benamidars, regarding title qua the properties in question inter se, which could be decided as a dispute of civil nature by Civil Court---Trial of issue framed in such suits by Civil Court would amount to trial of a criminal charge by a Civil Court, which was subject- matter of criminal proceedings, the cognizance of which had been taken by the court of exclusive jurisdiction created under the special law---Jurisdiction of Civil Court, thus stood expressly or implied barred from entertaining such suits---Impugned judgment was not suffering from any illegality or other legal infirmity calling for interference---Supreme Court dismissed the appeals in circumstances".
' Learned counsel for the defendant urges that the suit of the plaintiffs cannot, in any circumstances, be adjudicated upon by this court and the same merits dismissal and in view of the same, the instant application of the applicants/plaintiffs be dismissed and the suit of the applicants/plaintiffs be also dismissed.
6. I have heard arguments of learned counsel for the applicants/plaintiffs as well as learned counsel for the defendant and have also perused the material available on the file. The authorities cited by learned counsel for the parties have also been taken into consideration.
7. Admittedly, the matter is pending before the honourable Supreme Court of Pakistan, wherein all the aspects of the case are being probed into under the supervision of the honourable Supreme Court and under its direction, the NAB Authorities have taken cognizance of the same and are proceeding in accordance with the law, wherein the applicants/plaintiffs have made an application for plea bargain settlement, on the basis of which this application has been moved. In these circumstances, the liabilities are admitted by the applicants/plaintiffs and before considering the plea bargain of the plaintiffs, the NAB is to determine the liabilities, on which the said plea bargain is to be entered into. Moreover, it not denying the fact that the honourable Supreme Court of Pakistan have taken cognizance of the matter and the same being sub judice before it, accepting the application would tantamount to encroaching upon the jurisdiction of the honourable Supreme Court, as has been held by this court in its order dated 13-4-2010. When confronted with the provisions of clause (b) to rule 2 of Order XXIII, C.P.C., learned counsel for the applicants/plaintiffs has not been able to satisfy this court as to the sufficient grounds available for allowing withdrawal of the suit while granting permission to re-file the same in future. Even otherwise, the plaintiffs cannot be allowed to withdraw the suit simpliciter when fraud has been alleged to have been committed by the plaintiffs and in this respect, reliance is placed upon Haji Muhammad Boota and others v. Member (Revenue), Board of Revenue, Punjab and others PLD 2003 SC 979, wherein it has been held as under:-- "the withdrawal would not be allowed if it results in perpetuating a fraud or injustice. The court may in such circumstances decline the petitioner to withdraw the suit. 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 any order undoing a wrong or an injustice done to 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".
8. Further relying upon the case of Mst. Zahida Sattar and others v. Federation of Pakistan and others PLD 2002 SC 408, it is held that this court in the circumstances mentioned above is barred from entertaining such suits as has been held in case of Mst. Zahida Sattar and others v. Federation of Pakistan and others, wherein it has been held as under:-- "Where accused holder of public office was being tried for accumulation of wealth acquired by him by illegal and corrupt practices by misusing his official capacity in the name of his spouses/relatives, the dispute was not of a civil nature between two private parties, for there was no dispute between the accused i,e, the alleged real owner and his other relatives/spouses i,e, ostensible owners/alleged benamidars, regarding title qua the properties in question inter se, which could be decided as a dispute of civil nature by Civil Court---Trial of issue framed in such suits by Civil Court would amount to trial of a criminal charge by a Civil Court, which was subject- matter of criminal proceedings, the cognizance of which had been taken by the court of exclusive jurisdiction created under the special law---Jurisdiction of Civil Court, thus stood expressly or implied barred from entertaining such suits---Impugned judgment was not suffering from any illegality or other legal infirmity calling for interference---Supreme Court dismissed the appeals in circumstances".
9. In view of the above perspective and relying upon Haji Muhammad Boota and others v. Member (Revenue), Board of Revenue, Punjab and others PLD 2003 SC 979 and Mst. Zahida Sattar and others v. Federation of Pakistan and others PLD 2002 SC 408, this Court has come to the conclusion that the suit of the applicants/plaintiffs cannot proceed, as such, not only the instant application of the applicants/plaintiffs is dismissed but also the suit of the applicants/plaintiffs is dismissed.