1. Mazhar Alam Khan Miankhel, J.--Through this single judgment, we intend to dispose of Writ Petition No. 72 of 2004 and Writ: Petition No. 73 of 2004, whereby 'the petitioners, have 'questioned the judgments rendered by the Additional District -Judge-III, .Peshawar in two separate revision petitions whereby the order impugned before him'. dated 05.06.2003 of the trial Court allowing the petitioners to withdraw his two suits with the permission to file fresh one was set aside, by directing the trial Court to consolidate the two suits filed by the , plaintiff/petitioners and to frame consolidated issues arising out of the pleadings of both the parties.
2. Learned counsel for the petitioners submitted that he had inadvertently filed two separate suits regarding two separate properties owned' by the common predecessor of the parties, namely , Syed Habibullah Shah, so their said suits were barred by the provisions of Rule-2 of Order-II of CPC, hence he accordingly sought perrnisaion from the trial Court to withdraw both the suits with a. permission to file , fresh one by including both the properties in one suit. He next contended that the order of the trial Court was in accordance with 'law and the respondents had also accepted the order of the trial Court by receiving the costs, so imposed by, the trial Court. The respondents then were legally estopped to challenge the said order in higher forum so their very filing of revision petitions was against the law and the impugned' judgment of the revisional Court is also not maintainable in ,the circumstances of the case. Placed reliance on Pehlawan and others vs. Haji Muhammad Murad and others (2005 SCM R 1405),Ismail vs. (1) Fida Ali and (2) Syed tqbal Shabbir (PLD 1965 SC 634), Haji . Muhammad Boota and others vs. Member (Revenue), Board of Revenue, Punjab (PLD 2003 SC 979), Qamar Zaman and others vs. Musammir Shah, (2000 SCM R 1730) and Ali Hussain' vs. Ali Ahmad Khan Warsi (Represented by legal heirs) (1982 CLC 2616).
3. As against that, learned counsel for the respondents while supporting the findings of revisional Court submitted, that the decision 'of revisional Court was in accordance with law as in the circumstances the same purpose could have been achieved by the petitioners through consolidation of two suits and requested for dismissal of writ petitions. Learned counsel for the parties were heard and record of. the case was perused.
4. Perusal of the record would reveal that both the parties seek partition of two separate properties originally owned by their common predecessor. The plaintiff/ petitioners for this purpose filed two separate suits for getting their share in the legacy of their propositus. According to law, both the two independent suits regarding two separate properties were maintainable as entire claim of partition for each separate property was being sought in both the suits and as such filing of two separate suits was not a matter to be hit by the provisions of Rule-2 ibid. But for fair dispensation of justice and to avoid further legal complications both the suits could have been consolidated. Yet another possibility of said claims was in the shape of a. single suit by referring to both the properties. Either of the way was permissible under the law and legal but it is very unfortunate to observe that for such a short "matter, the parties to the suit have suffered so much. During this period, their claims of partition would have been decided by the Courts.
5. Perusal of the record would further reveal that the trial Court that directed the petitioners =to withdraw their both suits with the permission to file a fresh suit on payment of costs of Rs. 2000/-., Accordingly, both the suits were withdrawn and fresh suit was also filed much prior to the decision ,of the revisional Court. Besides the filing of fresh suit by the present petitioners, the defendant/respondents also received the above said costs. As far as receiving of costs by, the other party is concerned that would be an act of acquiescence with the act/order for which it received costs. Now its said act, under the law, would bar said party to question the said order in higher forum under the law of estoppel. Reliance in this regard can also be placed on the case of Ali Hussain vs. Ahmad Khan Warsi (Represented by legal heirs) (1982 CLC 2616). So, filing of revision petition after receiving costs was also an act not permissible under the law and jurisdiction thus exercised becomes nullity in law. It is once again strange enough to observe that the compliance of the trial Court order, was made much prior to the decision of revisional Court as the fresh suit was filed on 30.62003 and the revisional Court passed the impugned order on 6.11.2003. Such important matters should not be taken lightly.
6. Circumstances of the case as discussed above would justify and we are also of the same opinion that parties to .the 'litigation should continue with the already filed fresh suit, which will prejudice none of them.
7. So, in this view of the matter, the decision given by the revisional Court appears to be useless, which is hereby set aside. The trial Court is directed to decide the main case as early as possible, but not later than four months.
8. Both the writ petitions are disposed of accordingly.