KHADIM HUSSAIN TUNIO, J. Through instant application (C.M.A. No. 2551 of 2017), the petitioners seek recalling of the order dated 20.04.2017, whereby the petition was disposed of and in consequence thereof (recalling) seek restoration of petition to its original stage.
2. Learned counsel for the Petitioners contended that on 20.4.2017, during his arguments, the Court expressed view that there is alternate remedy of filing the execution application, hence writ petition was not competent and in view of the expression by the Court, he very bonafidely did not press the petition for the time being, which was resultantly disposed of; that there is no alternate remedy available to the Petitioners for the implementation of Award, therefore, the Petitioners filed petition before this Court for recovery of compensation and implementation of the Award; and, that the application is in time and no such application was ever filed prior to this, therefore, he prays that application CMA-2551 of 2017 may be allowed and petition be restored to its original stage. He has placed reliance on the cases of Mrs. Sajeeda Nushat v. Shaikh Muhammad Hussain Qureshi and others (PLD 2013 Sindh 320), Land Acquisition Officer v. Gul Muham mad (PLD 2005 SC 311, relevant page-313), PLD 2005 SC 512. lkramul Haq v. Province of Sindh and others (2012 CLC 655), Mir Ghulam v. Land Acquisition Officer/Collector (2004 YLR 77 ), Muhammad Hussain v . Chairman, N.H.A. and others (2009 MLD 1381 ).
3. Conversely , learned counsel for the respondents Nos.3 to 5 has argued that the matter of compensation has attained finality; that no copy of award has been provided; that the award is a decree, hence executable under the provision of section 26(2) of Land Acquisition Act; that the Petitioners had received an amount of Rs.35,097,000/-, through their attorney without any protest ; that the area of six survey numbers is shown as 32 acres of each S.No. (Total 192 acres); that no measurement of the area utilized in drain, having width of about 400/500 feet, from the said survey numbers, was made; that the provision of section 28-A of Land Acquisition Act stood repealed despite that the huge amount of more than fifty millions rupees was subsequently received by the petitioners through their attorney on the basis of an unlawful statement; that at the time of hearing, the attorney of the Petitioners was present in the Court and after availing sufficient time and with the consultation of the attorney , the learned counsel for the petitioners did not press the petition; that the scheme of law under Land Acquisition Act is complete and exhaustive and mode of acquisition provides a scheme containing machinery for taking measurement of land and assessment thereof; that the remedy , if any dispute, arising in respect of measurement of land and assessment of payment thereof lies with the Referee Court; that the matter having attained finality is past and closed transaction; that petitioner Sikandar Ali is dead and power of attorney is defective, hence he lastly prays for dismissal of the application. In support of his contentions, learned counsel relied upon the cases of Adil Khan v. Secretary to Government of Pakistan (2017 MLD 937), Karachi Water and Sewerage Board v. Province of Sindh (2005 MLD 725), Government of N.W.F.P. v. Akbar Shah (2010 SCMR 1408 ), Mir Afzal v. Land Acquisition Collector/Assistant Commissioner (2005 MLD 168), Qamar Peroz Khan v. WAPDA (2011 CLC 886), Subah Sadiq v. Secretary (2011 YLR 2500 ), Province of Sindh v. Jan Muhammad (2015 MLD 1525 ), Mst. Sarwar Jan v. Mukhtar Ahmed and others (PLD 2012 SC 217 ) and Inayat Rasool v . Managing Director (2017 CLC 452 ).
4. We have considered the submissions of learned counsel for the parties and have perused the relevant record. It is not immaterial to point out here that in-review the entire matter cannot be reopened, its scope is limited and confined to the aspects of the case that are shown to have not been conside red in the judgment. A review application can be filed only on discovery of new and important matter or evidence, which was not within the knowledge of aggrieved person or the same he could not produce at the time when the order or decree was passed against him, or he is able to show that there is some mistake or error apparent on the face of record. The limitation for application seeking a review of the order , passed by this Court, is 20 days as provided under Article 162 of 1908. It is a matter of fact that after addressing the Court at some length, learned counsel for the petitioners did not press the petition, stating that Petitioners would avail the remedy before the competent Court by filing appropriate proceedings. Accordingly , the petition was disposed of. But the petition ers have filed the application for review on 11.5.2017 after delay of one day, which has not been explained by them, therefore, apparently this application is time barred. The another important fact is that if it is presumed that they did not do so, but their Advocate did it under their instructions, then the question would be why the Petitioners did not do so earlier and why their counsel did not file the said application within time.
5. It would be relevant to clarify the nature of instant application. Normally , it is the party which brings a lis before the Court of law for determination of rights or obligations hence, there can be no denial to the legally established position that the 'disposals' by Courts of law can well be parted in 'two categories' i.e. 'disposal on merits' and 'disposal on account of faults/defaults' . The case (s), falling within category of 'disposal on merits ' normally are not open for the very Court to re-examine except to correct a clerical error or by way of 'review'. Such restrictions, prima facie , are for simple reasons that 'disposal on merits' always carry an impression of judicial application of minds by the Court to every available legal or factual issue. The disposal on 'account of faults/defaults' since, normally , does not involve any determination by the Court of law hence on legal justification , per law , the same can be recalled.
6. Perusal of the record shows that dispos al of the matter (through order , sought to be recalled) does not fall in any of the above two categories. Therefore, right of review as well restoration of the petition to its original position is not available to petitioners.
7. However , since we are also conscious of the fact that there is an exception to above two categories which, however , emerges only whereby the party , initiating a lis, so asks. We would add that since, it is always the absolute and exclusive right of the party , bringing the lis, to continue with such lis or to abandon it at any time. The Court, unless the matter is one of probono publico , can't compel such party to continue with such lis nor can legally be the 'judge' of wishes (acts or omission) of such party to such extent because a 'judge' , in all cases, is believed to have no personal interest in consequences of litigation . Thus, a party , at any stage of proceedings, if wishes to unconditionally withdraw/not press the lis such right can't be denied. The Court shall not be required to ask for a 'reason' for such withdrawal, however , the Court must examine the competence of the person, seeking withdrawal. It would be conducive to refer operative part of the case of OXFORD University' Press v. Messrs Ferozesons and others 2008 YLR 21 16 which are:-- "Notwithstanding, the principle deducible from the cases cited by Mr. Rashid Anwar , a suit can be disposed of by withdrawal as indicated in Order XXIII, and the Court having control over the proceedings is not even required to pass an order on withdrawal application after exercise of power by the Court, as it becomes functus officio. It is not open to the party to back out of it until brought to its notice that the withdrawal has not been acted upon . On withdrawal, certain order may be passed by the Court but they are not for giving effect to the withdrawal but to give effect to consequences arising out of withdrawal. ...
"It is further pointed out that after the withdrawal of the suit by the plaintif f, the Court ceased to have jurisdiction over his suit thus became functus official, but that a fresh suit could again be filed in the Court with jurisdiction over it. As far as withdrawal of suit was concerned, that is at an end, and no further proceedings can be taken in it. As the suit of the appellant did not exist, no application for revoking the withdrawal can be made in the suit, nor can such application be entertained".
Now, it is time to reproduce order , sought to be recalled, which is:- "After addressing the Court at some length, learned Advocate for the petitioners does not press this petition , stating that petitioners will avail the remedy before the competent court by filing appropriate proceedings .
Accordingly , the petition is disposed of. The petitioners may avail the remedy , if any, available to them before the court of competent jurisdiction. if they choose so".
From above, it is quite obvious that choic e for not pressing the petition for availing remedy before competent court was from the counsel of the C petition ers, therefore, this Court was never supposed to hold an inquiry for determining:- whether there exists any legal remedy or otherwise? but was only required to examine competence of the person, making such request. We are conscious that such like disposal does not necessarily D create jurisdiction nor attaches any legality to what the counsel or party says, therefore, it was categorically mentioned in the order , sought to be recalled, that: "The petitioners may avail the remedy , if any, available to them before the court of competent jurisdiction, if they choose so"
8. The petitioners have to lay on what they laid and legally can't seek an exceptio n to the act or omission of their own authorized person. Worth to add here that the petitioners in instant application have not claimed that their counsel was not authorized to withdraw the petition, therefore, even on this exception the instant application is not maintainable.
9. Even, the present application cannot be entertained under section 151, Cr.P.C. In a similar case reported as 2010 YLR 904 , it was observed by the Lahore High Court that: "3. The case in hand is not covered by section 151, Cr.P.C. or section 152, Cr.P.C. It is covered under Order XIII, Rule 1(3), C.P.C. There is no provision in this rule to entertain an application under sections 151 and 152, C.P.C.
This is not a clerical mistake. It is a case of conscious withdrawal not pressed."
10. On a query , the learned counsel for the petitioner has submitted that the award of Rs.35097600/- was passed by the Land Acquisition Officer and then on filing the Constitutional Petition No.D-792 of 2010, the petitioner had received additional amount of Rs.53427200/- as additional compensation with compound interest under section 28(a) of the Land Acquisition, which needless to say, is the amount beyond the award passed by the Land Acquisition Officer and by filing this petition the petitioners attempted to have further huge additional amount.
Learned counsel for the petitioner , who is a Senior Advocate, after addressing the Court some at length, finding himself on a very weak wicket had not pressed this petition, stating that the petiti oners would avail the remedy , if any, available to them and as such the petition was dismissed as not pressed.
11. Though, the grounds, taken for recalling / restoration of the disposed of petition, need no consideration, however , we regretfully add that if such like words are taken as correct the same shall bring serious clouds over the veracity of judicial proceedings which we shall insist, cannot he allowed. We shall also add that if the parties are allowed to take such pleas, having no back of record, then no order shall hold the field nor the truthfulness, attached to judicial proceedings, shall exist anymore.
12. The authorities cited by the learned counsel for the petitioner are clearly distin guishable and the same are not applicable to the facts and circumstances of the present case.
13. In view of what has been discussed above, we are of the opinion that neither any mistake or error is apparent on the face of record nor any other sufficient reason or justification is shown by the Petitioners' counsel to review the order passed by this Court on 20.04. 2017 while disposing of the petition as not pressed on the statement of learned counsel after hearing at some length. Consequently , the review application is dismissed with no order as to costs.
14. Before parting with this order , it would be observed that the petitioners seem to have already received the huge amount in excess in collusion with the Revenue and other officers/of ficials, therefore, in our view, the matter needs to be enquired into by the National Accountability Bureau by initiating proceedings in accordance with the law .