ATIR MAHMOOD, J. --- Brief facts of the case are that the petitioner filed a suit for declaration, cancellation of documents, etc. which was dismissed as withdrawn on the statement of the petitioner that a compromise has been effected between the parties vide order dated 28.01.2009.
On 14.01.2010 the petitioner filed application under Section 151, C.P.C. for restoration of suit which was dismissed by learned Trial, Court vide order dated 08.03.2013. Against the said order, the petitioner filed revision petition which also met with the same fate vide judgment dated 16.05.2016 passed by learned Additional District Judge, Lahore. Hence this writ petition has been instituted.
2. The contention of learned counsel for the petitioner before this Court is that the suit was withdrawn by the petitioner on the basis of unwritten compromise and since there was no compromise on record, learned Trial Court could not decide the matter on the basis of the same.
He has also pointed out that an application under Article 163 of the Qanun-e-Shahadat Order, 1984 was not decided by learned lower revisionalCourt. He has relied upon the law laid down in cases Umar Bakhsh and 2 others v. Azam Khanand 12 others(1993 SCMR 374), Hadi Bux Memon through Attorney v. City District Government, Karachi and 5 others (PLD 2006 Karachi 16)and Hasnain Ahmed Shah v. ljaz Ahmed Shah and another (2006 CLC 334).
3. Arguments heard: Record perused.
4. Perusal of record reveals that the petitioner withdrew his suit himself while submitting that since a compromise had been effected between the parties, he did not want to prosecute the suit any more. Learned Trial Court accordingly allowed the petitioner to withdraw the suit and the suit was dismissed as withdrawn vide order dated 28.01.2009. Neither any permission to file fresh suit or to file any application for restoration of the suit was sought for by the petitioner nor the same was granted by the Court. Afterwards, the petitioner filed application on 14.01.2010 for restoration of the suit while asserting that the respondent has failed to honour the compromise which application was not acceded to by both the learned Courts below. In my opinion, in absence of any permission by the Court at the time of withdrawal of the suit, the petitioner could not pray for restoration of the suit by way of filing application under Section 151, C.P.C. The Courts cannot exercise the inherent power under Section .151, C.P.C. when there are certain other provisions of the CPC to deal with the matter. The said application was not maintainable and liable to be dismissed on this score alone.
5. The contention of learned counsel for the petitioner is that without written compromise, the Court could not allow withdrawal of the suit. Suffice it to say that the law gives right to each and every person who approaches the Court for some relief to prosecute or forego his matter. The same may be through written application supported by document or verbally. Furthermore, when someone does not want to proceed with his own .cause, how the Court can move further for the same. In my considered opinion, the petitioner being plaintiff of the suit could exercise his right to withdraw the suit. This right was exercised by him in accordance with law and there was no reason to refuse the same by the Court: The case-law relied upon by the petitioner is distinguishable on facts and does not apply to the case of the petitioner.
6. Another contention of learned counsel for the petitioner is that application of the petitioner under Article 163 of the Qanun-e-Shahadat Order, 1984 offering the respondent to accept or deny the claim of the petitioner on oath was not decided by learned revisional Court. Said provision is reproduced below:-- "163. Acceptance or denial of claim on bath: (1) When the plaintiff takes oath in support of his claim, the Court shall, on the application of the plaintiff, call upon the defendant to deny the claim on oath.
(2) The Court may pass such orders as to costs and other 'matters as it may deem fit.
(3) Nothing in this Article applies to laws relating to the enforcement. of Hudood or other criminal cases." (Underline is mine)
Perusal of underlined portion of above provision of law makes it crystal clear that only a plaintiff and a defendant can make statements on oath in support or rebuttal of the claims made in the suit. For being a plaintiff and a defendant, there should be a suit pending before the Court.
Admittedly, the said application was filed by the petitioner before learned revisional Court in a civil revision. Appeal is a continuation of suit but a revision petition is not. Since there was no suit, there was no plaintiff or defendant in the revision petition and when there was no plaintiff or defendant, the application under Article 163 of Qanun-e-Shahadat Order, 1984 was not enter trainable and the same merited for dismissal. Therefore, even if the said application has not been decided by learned lower revisional Court. it involves no consequences..
7. There are concurrent findings of law and fact against the petitioner. Learned counsel for the petition has not , been able to point out any illegality therein. No interference is warranted.
8. For the afore-mentioned reasons, this writ petition has no merit. The same is accordingly dismissed.