MUNIB AHMED KHAN, J.---The factual position coming out of this petition is that a Suit bearing No,115 of 2006 (Old No,661 of 1979) was initially instituted in this Court, thereafter, the same was transferred to the court of civil court on the ground of pecuniary jurisdiction. Since another Suit bearing No,116 of 2006 was on similar footing, therefore, both were going side by side. It happened that applications for withdrawal of Suits bearing Nos.115 of 2006 as well as 116 of 2006 were filed and that were allowed and respondents were allowed to withdraw their suits unconditionally.
Subsequently, a Revision Application bearing No,9 of 2007 was filed by one Mrs. Afroze Shah, which A was dismissed with the following observation:-- "Perusal of the Revision as well as order passed by the learned trial court dated 24-3-2007 it appears that the said order was passed by the learned trial court on application of withdrawal of suit filed by the contesting plaintiff/ respondents Nos.1 to 8 and on application such objections was raised by the applicant that the respondent have no locus standi to withdraw the said suit as both the parties were legal heirs of the deceased A.M. Qureshi and the interest of both the parties were same in the suit property left by deceased A.M. Qureshi, therefore, the applicant may also be joined as a plaintiff in said suit to contest the same being as a plaintiff but the learned trial court allowed the withdrawal application and ultimately the suit filed by the respondents Nos.1 to 8/plaintiff was withdrawn and against the said order, this Revision Application has been filed, so considering all these things I have come to the conclusion that no doubt both the parties are relatives/legal heirs of the deceased A.M. Qureshi but since the suit was filed by respondents Nos.1 to 8, therefore, A they have rightly filed application for withdrawing their suit and court has rightly passed such order on 24-3-2007, allowed the application for withdrawal, which requires no, any interference. But considering the entire facts of the case, it has also come on the record that the applicant also legal heirs of the deceased A.M. Qureshi, therefore, there is a keen interest of the applicant in the suit property, therefore, they have at liberty to file the fresh suit before the competent court of law having jurisdiction within 30 days of this order being applicant joined themselves as a plaintiff in the said suit for same suit property, as such Revision Application is disposed off, accordingly, in the interest of justice."
2. The contention of Mr. Khalid Javed Khan is that Suit No,115 of 2006 was filed by A.M. Qureshi predecessor-ininterest of respondents Nos.1 to 8 as well as of the petitioner herein. He submits that since all the parties were contesting in the suit in the capacity of the legal heirs, therefore, that suit would not have been allowed to be withdrawn only on the request of the plaintiffs to that suit. On a query, he states that the petitioner was a defendant in that suit was brought in such capacity on his application under Order I, rule 10, C.P.C. To that court. Learned counsel further submits that the plaintiffs, in that suit, were not exclusive owners of the estate of the deceased, therefore, the suit would not have been allowed to be withdrawn without the consent of the petitioner. He further submits that order of withdrawal was contrary to the interest of the petitioner, therefore, that order of the civil court dated 24-3-2007 as well as of the revisional court dated 26-7-2007 are to be set aside and Suit No,115 of 2006 to be continued. He has relied upon the case reported as Javaid Iqbal Abbasi and Company v. Province of Punjab and 6 others 1996 SCMR 1433 and specifically para 9 of the authority.
3. On the other hand, Mr. Ahmed Pirzada, Mr. Nasir Hussain Jafri, Mr.Muhammad Shafi Rajput, Mr. Tasawar Hussain, Mr. Muhammad Ali Jan and Mr. Manzoor Ahmed, learned counsel for the respondents, submit that suit was rightly dismissed as withdrawn on the application of the plaintiffs to that suit. They further submit that although A.M. Qureshi filed a suit but as per requirement of Order VIII C.P.C. The respondents Nos.1 to 8 were shown as legal heirs and not the petitioner. They further submit that although an application under Order I, Rule 10, C.P.C. Was made by the petitioner for becoming plaintiff in the suit but that application was not allowed in toto and petitioner was included as defendant. They further submit that revisional order dated 26-7-2007 is quite clear in respect of opportunity to the parties concerned and the petitioner could file a fresh suit explaining therein the circumstances. They request for dismissal of the petition.
4. After hearing the learned counsel, we have observed that the petitioner remained as a defendant while respondents Nos.1 to 8 as plaintiffs and being plaintiffs they had right to withdraw the suit unconditionally. The contention of Mr.Khalid Javed Khan, cannot be entertained in respect to the factum that he was also holding a position equal to that of plaintiffs for the reason that the petitioner would not have agreed to the order of the lower court on his application under Order I rule 10, C.P.C. By which he was impleaded as defendant and not as a plaintiff and that was the crucial time for him to assail that order and to stand beside the plaintiffs in that suit and then he would have adopted the position to contest withdrawal of the suit, which has not been done and the petitioner remained silent for a longer period, therefore, this twisted contention at this moment has no force. We have also observed from the revisional order that after the said order, parties could adopt their own course to contest their legal rights and that would be proper recourse. The authority referred to by Mr. Khalid Javed Khan has no application to the factual position involved in this petition.
5. In such a situation, we do not find any force in the instant petition, which is accordingly dismissed along with listed application.