CH. MUHAMMAD IBRAHIM ZIA, J. --- This appeal by leave of the Court is addressed against the judgment of the High Court dated 10.06.2013 whereby writ petition filed by respondent No. 1 has been dismissed as withdrawn with the permission to file a fresh one.
2. According to the facts narrated in the writ petition, respondent No. 1 is 1st class State Subject and domicile of District Bhimber. In response to an advertisement published in the newspapers, she applied for admission in MBBS course against the seats provided in the newly established Medical Colleges in Azad Jammu and Kashmir as well as in Pakistan for the current session of the year 2012-13. A merit list was prepared by respondent No. 10 in which respondent No. 1 has been placed at serial No. 26, whereas the appellant at serial No. 4 against the quota reserved for District Bhimber. Respondent No. 1 averred in the writ petition that the appellant got admission in Gujranwala Medical College on the basis of merit in the light of Domicile of Lahore but subsequently, she got admission in Fatima Jinnah Medical College, Lahore on the basis of Domicile of District Bhimber by concealing or suppressing the fact of earlier admission which is against law and rules. Respondent No. 1 sought direction for her accommodation against the seats lying vacant for MBBS. She also prayed for cancellation of appellant's admission against the seat reserved for District Bhimber. Pre-admission comments were called and preliminary arguments were heard by the High Court but before passing any order on the writ petition, an application was filed by respondent No. 1 for withdrawal of the writ petition with the request for permission to file a fresh writ petition. A fresh writ petition was filed and the appellant was served with a notice to file comments vide order dated 27.6.2013. The appellant filed petition for leave to appeal against both the orders, however, during hearing on the application for interim relief, on the request of counsel for the appellant, he was allowed to withdraw the petition for leave to appeal to the extent of order dated 27.6.2013. The leave was granted only to the extent of order dated 10.6.2013.
3. Ch. Muhammad Siddique Advocate, the learned counsel for the appellant seriously objected to the impugned order on two counts, firstly; that the order is passed without notice to the appellant, and secondly, the respondent failed to point out any formal defect in his application filed for withdrawal of writ petition. Thus, according to his version, without pointing out any formal defect, the Court cannot pass order of withdrawal of writ petition with the permission to file a fresh one, hence the impugned order is illegal. He further submitted that by accepting the appeal, the impugned order be set aside. He placed reliance upon the cases reported as Muhammad Yar (Deceased) through L. Rs. And others v. Muhammad Amin (Deceased) through L.Rs. And others [2013 SCMR 464] and Nazir Ahmed & others v. Sarfaraz All and 2 others [PLD 2013 Lah. 309].
4. Conversely, Sheikh Masood Iqbal Advocate, the learned counsel for respondent No. 1, strongly opposed the appeal on the ground that the writ petition was at the preliminary stage, i.e., at the stage of admission for regular hearing, therefore, withdrawal of same is not prohibited by law. He further submitted that according to statutory provisions of Civil Procedure Code, it is not necessary for the party to point out any formal defect. It is the only Court's satisfaction and the application for withdrawal cannot be rejected merely on the ground that the party has failed to point out any formal defect. He further submitted that even otherwise; provisions of Civil Procedure Code are not strictly applicable to the writ proceedings. It is further submitted that in the modern era, the trend of the Courts is in favour of adjudication of the matters on merits and not on technical knock-outs.
He has referred to the case reported as Raja Bashir Ahmed Khan v. Azad Government and another [1997 SCR 67] in support of his case.
5. We have considered the arguments of the learned counsel for the parties and also perused the record. The legal propositions which require deliberation are, whether; writ petition before admission can be withdrawn with the permission to file a fresh and, whether; the application for withdrawal of writ petition can be rejected merely on the ground of failure to point out a formal defect. Another aspect is, whether, for accepting the application for withdrawal, notice to the other party is necessary and the Court cannot exercise powers of withdrawal without notice to the other party?
6. The learned counsel for the appellant has built up the whole case on the statutory provision of Order XXIII, Rule 1 of Civil Procedure Code. It will be useful to reproduce here the statutory provision which reads as under:---
1. Withdrawal of suit or abandonment of part of claim. (1) At any time after the institution of a suit the plaintiff may, as against all or any of the defendants, withdraw his suit or abandon part of his claim.
(2) Where the Court is satisfied---
(a) that a suit must fail by reason of some formal defect, or
(b) that there are other sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim, it may, on such terms as it thinks fit grant the plaintiff permission to withdraw from such suit or abandon such part of a claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of a claim.
(3) Where the plaintiff withdraws from a suit, or abandons part of a claim, without the permission referred to in sub-rule (2), he shall be liable for such costs as a Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim.
(4) Nothing in this rule shall be deemed to authorise the Court to permit one of several plaintiffs to withdraw without the consent of the others."
A bare reading of the statutory provision clearly speaks that it is the satisfaction of the Court that the suit must fail by reason of some formal defect, or for any other sufficient ground to allow the plaintiff to institute a fresh suit, thus, it is obviously clear that the application for withdrawal cannot be rejected merely on the ground of failure of applicant to point out formal defect in the suit. The Court can allow withdrawal of the suit for the reason of formal defect or for any other sufficient ground. The power of withdrawal even can be exercised by the Court unilaterally at the instance of one of the parties. The apex Court of Pakistan in the case reported as Unichen Corporation (Pvt.)
Limited and 4 others v. Mst. Khursheed Ismail and 3 others [2000 SCMR 456], while dealing with the proposition of powers of withdrawal of case has observed:- "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."
Thus, it is clear that the power to allow withdrawal lies with the Court and it does not depend upon the wishes and whims of the parties. As the apex Court of Pakistan has observed that the power of withdrawal can be unilaterally exercised at the instance of any party thus, in our opinion, keeping in view the peculiar facts of this case, notice to the appellant before passing order of withdrawal in the writ petition was not required.
7. In the instant case, as it has been already observed that writ petition was at the preliminary stage and even admission order was not passed, thus, there was no embargo to allow withdrawal of writ petition. The apex Court of Pakistan while dealing with the legal proposition regarding withdrawal of writ petition before reaching the stage of hearing on merits and filing of successive writ petition in the case reported as The Commissioner of Income Tax N.C.A. Circle, Karachi and another v. Haji Ashfaq Ahmed Khan and 10 others [PLD 1973 Supreme Court 406], has observed as under:--- "We may and that the right given under Article 98 of the 1962-Constitution was a Constitutional right and unless there was an express bar to the contrary, Writ Petition No. 638 of 1962 could proceed legally in spite of the fact that Writ Petition No. 416 of 1962 had been withdrawn before it had reached the stage of hearing on merits. In our opinion Writ Petition No. 638 of 1962 did not fall within the mischief of the principle that a person should not be vexed twice for the same matter."
7. There is another aspect of the matter. The writ proceedings are being conducted under the procedure laid down by the Azad Jammu and Kashmir High Court Procedure Rules, 1984. The provisions of Civil Procedure Code are not strictly applicable to the writ proceedings. Rule 42 of the High Court Procedure Rules, 1984 speaks as follows:--- "42. Without prejudice to the foregoing rules, the provisions of the Code shall as far as practicable apply to the proceedings under Part B of this Chapter."
This rule clearly lays down that the provisions of Civil Procedure Code shall be applicable as for as practicable. This Court in the case reported as Sardar Muhammad Ibrahim Khan v. The Azad Jammu and Kashmir government through Chief Secretary of Azad government of the State of Jammu & Kashmir, Muzaffarabad [PLD 1987 SC (AJ&K) 127] has also held that the provisions of C.P.C., are not applicable to the writ proceedings. Relevant portion of the judgment reads as follows:- "We have heard the arguments and gone through the file. The first point which needs determination is as to whether the provisions of the C.P.C. Are applicable to the proceedings taken in exercise of writ jurisdiction. The learned counsel for the parties agree that proceedings in writ petition are governed by C.P.C. As far as practicable. A reference may be made to cases reported as "Hussain Bakhsh v. Settlement Commissioner, Rawalpindi" [PLD 1970 SC 1] and "Zubair & others v.
Bashir and another" [PLD 1963 Lah. 178], wherein it has been held that procedure prescribed for suits in C.P.C., as far as practicable, is applicable to all the proceedings taken in exercise of writ jurisdiction. The authority reported as "Said Ali and others v. Brig. Iftikhar Bashir Tarar and others".
[1982 SCMR 140], which has been relied upon by the High Court in support of the impugned order also supports the view that the provisions of C.P.C. Are applicable to the writ proceedings, but the same are not strictly applicable to writs and thus the provisions contained in Order XVII, rule 3 of C.P.C. Need not be followed in letters and spirit."
In the light of principle of law enunciated, it is clear that provisions of C.P.C. Have to be applied to the writ petition as far as practicable and not strictly in letter and spirit. Thus, the foundation of the appellant's version that the impugned order is not strictly in consonance with the provisions of C.P.C. Has lost its weight.
9. So far as the case-law referred to by the learned counsel for the parties is concerned, due to distinguished factual and legal propositions, is not applicable to the case in hand, hence we do not feel any necessity of discussion of legal precedents referred to by the counsel for the parties.
For the reasons stated above, we do not find any illegality in the impugned order of the High Court.
The appellant has failed to make out any case for interference by this Court, therefore, finding no force, this appeal stands dismissed without any order as to costs.