Respondent No, 5, Namdar Khan, had filed an application under Section 135 of the Land Revenue Act, 1967 before the Tehsildar/ Respondent No, 4 for partition of jointly owned landed property against 23 persons including the present petitioner, Matloob Hussain. The Tehsildar/AC- I(Respondent No, 4) vide order dated 28.9.2004 approved the "Naqsha Jeem". The petitioner alongwith 8 others, feeling aggrieved by order dated 28.9.2004, preferred an appeal under Section 161 read with Section 142(ii) of the Land Revenue Act, 1967, before the District Officer (Revenue)/Collector (Respondent No, 3) which was dismissed vide order dated 12.7.2005 (Annex.
C). Thereafter, the petitioner alongwith others filed an appeal under Section 161 of Land Revenue Act, 1967 before the Executive District Officer (Revenue)/Respondent No, 2 and the same was also dismissed vide order dated 16.2.2007. The petitioner assailed the order dated 16.2.2007 before the Board of Revenue, Punjab, through a revision petition under Section 164 of the Land Revenue Act, 1967. Learned Member (Judicial-V), Board of Revenue, Punjab vide order dated 2.4.2007 dismissed the revision (i,e, ROR No, 639-07) filed by the petitioner. Finally, the petitioner moved a review petition before the learned Member (Judicial-V), Board of Revenue, Punjab. The review petition (i,e, Review Petition No, 116-07) filed by the petitioner was also dismissed vide order dated 9.10.2008. The petitioner being dis-satisfied with the afore-stated orders moved this Court through W.P. No, 9019- 13 which was dismissed as withdrawn vide order dated 15.4.2013. Now, the petitioner has filed the petition in hand for assailing orders dated 28.9.2004 and 12.7.2005, passed by the Tehsildar/AC-I and Executive District Officer (Revenue) respectively; and orders dated 2.4.2007. and 9.10.2008, passed by the Board of Revenue Punjab.
2. The matter directly and substantially in issue in the present petition is the same matter which was directly and substantially in issue in the former petition, that is, W.P. No, 9019-13. The earlier petition was withdrawn unconditionally from this Court vide order dated 15.4.2013. In this context, at the outset of hearing, I confronted the learned counsel for the petitioner with the bar contained in Order XXIII, Rule 1, CPC and asked as to how, the instant petition is maintainable. In response to Court query, learned counsel for the petitioner has submitted that consequent upon the dismissal of Review Petition No, 116-07 by the Board of Revenue, parties to the petition agreed to resolve the dispute through arbitration and in consequence thereof an arbitrator was appointed who after hearing the parties announced award on 2.11.2012. At the time of hearing of earlier petition, i,e, W.P.
No: 9019-13, copy of award was not available and, therefore, the same was withdrawn for the time being. He has further submitted that the petitioner after obtaining a copy of the award has filed the instant petition; which is maintainable.
3. I am afraid the contention raised by the learned counsel for the petitioner has no force. The petitioner in earlier petition i,e, W.P. No, 9019-13 made the following prayer:-- "It is, therefore, most respectfully prayed that this writ petition may kindly be allowed and the impugned orders dated 28.9.2004, 12.7.2005 passed by the EDO and DO(Revenue) and orders dated 2.4.2007 and 9.10.2008 passed by the Board of Revenue, Punjab may kindly be set aside, in the interest of justice.
It is also prayed that meanwhile, operation of the impugned orders may kindly be suspended and status quo regarding the possession of the parties may kindly be ordered to be maintained, in the interest of justice.
Any other relief which this Hon'ble Court deems fit and appropriate under the aforementioned facts and circumstances of the case may also be granted to the petitioner".
Above said petition was dismissed as withdrawn vide order dated 15.4.2013 which reads as under:-- "After arguing the case at some length, learned counsel for the petitioner requests to withdraw this writ petition. Therefore, the same is dismissed as withdrawn."
Now, the petitioner has filed the instant petition with following prayer:-- "It is, therefore, most respectfully prayed that this writ petition may kindly be allowed and the impugned orders dated 28.9.2004, 12.7.2005 passed by the EDO and DO(Revenue) and orders dated 2.4.2007 and 9.10.2008 passed by the Board of Revenue, Punjab may kindly be set aside, in the interest of justice.
It is also prayed that meanwhile, operation of the impugned orders may kindly be suspended and status quo regarding the possession of the parties may kindly be ordered to be maintained, in the interest of justice.
Any other relief which this Hon'ble Court deems fit and appropriate under the aforementioned facts and circumstances of the case may also be granted to the petitioner".
The afore-stated facts evince that subject matter of both the petitions is same; prayer of W.P. No, 9019-13 and prayer made in the petition in hand is verbatim; and, that tenor of order dated 15.4.2013 shows that the petitioner's counsel did not seek permission to the a fresh petition and had withdrawn W.P. No, 9019-13 unconditionally. Under Order XXIII, Rule 1, CPC a suit can be withdrawn at any time whenever plaintiff desires and it is not, possible for the Court to compel plaintiff to continue a suit as was held in the case of "Karim Gull and another vs. Shehzad Gull and others" (PLD 1968 Peshawar 134), 'Malik Mumtaz Ali vs. Pakistan through Secretary, Refugee and Works, Government of Pakistan, Rawalpindi and three others" (PLD 1971 Lah 395). The principles embodied in Order XXIII, Rule 1, CPC are applicable to a constitutional petition as proceedings under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 relating to civil matters are civil proceedings in view of judgment of their Lordships of the Supreme Court of Pakistan in "Hussain Bukhsh vs. Settlement Commissioner and others" (PLD 1970 SC 1), 'Muhammad vs. Addl.
Secretary. Government of NWFP Home and Tribal Affairs Department and 8 others" (1989 SCM R 995). Thus, I hold that the petitioner is precluded to institute present petition in view of unconditional withdrawal of the earlier petition involving the same subject matter.
4. This petition is, therefore, dismissed as being incompetent.