WIQAR AHMAD. J. This order is directed to dispose of Review Petition No. 17-M/2018 as well as connected Review Petition No. 18-M/2018 as both these petitions arise out of separate appeals but filed against same judgment of the learned Referee Court Chitral dated 30.07.2011.
2. Petitioners had earlier filed a Regular First Appeal No. 17-M of 2012 titled "Residents of Denin Lasht Chitral through their representatives v/s Ghulam Jilani & others" before this Court in a representative capacity against judgment of learned Referee Court Chitral dated 30.07.201 1. Against same judgment, another RFA No. 39-M of 2012 titled "Hidayatullah & others v/s Ghazi Ahma d & others" had also been pending before this Court. It was also alleged by petitioners that representatives of the petitioners on the strength of forged and fictitious power of attorney had executed a compromise deed against interests of all residents of Denin Lasht. They also alleged to have received compensation amount in lieu of the property in dispute and had distributed it among themselves depriving actual owners of residents of Denin Lasht. Petitioners have also filed C.M. No. 07 of 2017 in RFA No. 39-M of 2017 for cancellation of forged power of attorney and for appointment of new representatives of residents of Denin Lasht. Petitioners have also contended in their petition that all the appeals filed by respective appellants and provincial government had been clubbed together and fixed for arguments. The appellants in RFAs No. 17-M & 39-M of 2018 had requested for withdrawal of their appeals as they had not been interested in prosecution of same anymore. Said request of attorney of appellants had vehemently been resisted by petitioners of C.M. No. 7 of 2017 filed in RFA No. 39 of 2012. Thereafter, this Court vide separate orders of even date i.e. 21.03.2018 had dismissed both the appeals as withdrawn. Said orders of this Court have been sought to be reviewed by petitioners by filing the instant review petitions.
3. I have heard arguments of learned counsel for the parties and perused the record.
4. Perusal of record reveals that RFA No. 17-M of 2018 had been filed on behalf of residents of Denin Lasht through their representatives. The representatives have then requested the Court for withdrawal of the RFA.
Same has been allowed to be dismissed as withdrawn vide order dated 21.032018, review of which is being sought through the instant review petition. It has briefly mentioned in the order under review that residents of Denin Lasht Chitral had filed the appeal through the five persons shown as representatives therein. It has further been held that since the proceedings under Order 1 Rule VIII C.P.0 had not been followed therefore the appeal would be deemed to have been filed only by those five persons and would be deemed to have been dismissed as withdrawn on their behalf. While giving these findings it could not be brought to the notice of this Court that the order impugned therein had been passed against all the residents of Denin Lasht Chitral in representative capacity who had been sued by respondents in the reference filed before learned Referee Court Chitral on 16.07.1992. Withdrawal of the appeal could not therefore in circumstances of the case be limited to the five representatives shown in the memo of appeal but would have the effect of getting the judgment finalized against all the residents of Denin Lasht who had not filed any appeal there-against. Some of the residents of Denin Lasht had also raised an objection to withdrawal, of the appeal by filing C.M. No. 07 of 2017 in connected RFA No. 39-M of 2012. Said C.M could neither be disposed of, through the order allowing withdrawal of said appeal nor could same be referred or considered. The five persons mentioned as representatives of Denin Lasht could no longer be considered as truly representing all the residents of Denin Lasht. So far as non-following of the procedure under Order 1 Rule VIII C.P.C is concerned, same could have been complied with when the appeal had been pending and the mere fact that said proceedings had not taken place by then, would not be sufficient to restrict the scope of appeal filed in representative capacity to the extent of the five representatives only. When representative capacity of the representatives had become questionable then allowing of the appeal to be withdrawn on their request had no doubt been erroneous which error can easily be discovered floating on the face of record.
5. In the case of "Mt. Jaimala Kunwar and another v/s Collector of Saharanpur & others" reported as AIR 1934 Allahabad 4, the Hon'ble Allahabad High Court had held that where the plaintiff sues in a representative character, it had not been open to him to put an end to the litigation by merely withdrawing the suit. It had further been held that he might go out of the suit but that would not put an end to the litigation where other people were interested in it and had a right to come in and continue the litigation. Hon'ble Karachi High Court had also held in its judgment rendered in the case of "Siraj-ud-Din v/s Mst. Amtul Rauf & 12 others" reported as PLD 1977 Karachi 933 that the Court would have discretion to refuse terminations of proceedings where defendants had acquired valuable rights or in cases where plaintiff was sued in representative capacity and withdrawal of suit would affect rights of others. In the case of "Mrs. Afroz Shah & others v/s Sabir Qureshi & others" reported as PLD 2010 Supreme Court 913 Hon'ble Supreme Court of Pakistan had held that once a co-plaintiff opted for pursuing the suit he had the unqualified right to continue the suit even if another plaintiff had unconditionally withdrawn from such a suit. In a case brought in representative capacity by or against a group of people like residents of Denin Lasht in the instant proceedings, all such residents would be deemed to have sued or be sued during such proceedings. If the judgment impugned in the appeal attains finality then same would naturally be enforced against all the residents of Denin Lasht and due to said fact every residents of Denin Lasht would be deemed to have been party to the appeal when same had been shown filed on their behalf in representative capacity . Withdrawal by some of the appellants would therefore not prejudice right of other appellants to continue proceedings particularly when some of them had also brought before the Court, before passing order of withdrawal, that the representatives had lost their capacity of representing residents of Denin Lasht. Such issue could not be considered, discussed and resolved in the order under review , which has furnished a sufficient ground for review of the order . In the case of "Saga Shipping & Trading Corporation Limited & 2 others v/s Walia Steel Industries PLC through Attorney & 5 others" reported as 2020 CLC 275 Hon'ble Sindh High Court had found an order for withdrawal of the suit on the basis of compromise as unauthorized and had resultantly set it aside. In an earlier judgment of this Court given in the case of "Habib Ullah and others v/s Mir Zaman & others" reported as 2013 CLC 143 this Court had also observed that withdrawal of suit or claim by some representatives in a suit would not affect rights of whole tribe (village) and members of the village who had not withdrawn their claim.
Relevant part of observations of this Court given in said case is reproduced hereunder; "Similarly the question of estoppel also cannot arise. The other argument of the learned counsel for the petitioners that plaintiffs Nos.2 and 4 had admitted the claim of petitioners, too would have no force at all, as the applications moved by two plaintiffs were only with regard to simple withdrawal of their claim. The argument to the extent of plaintiffs Nos.2 and 4 that the suit should not have been decreed in favour of plaintiff/respondents also appears to be misconceived, as there was nothing on the record to prove that the vendors of petitioners had any landed property in village Kaman Gara. Even the alleged vendors of the petitioners who were made party to the instant suit have denied the factum of sale and receipt of sale consideration. Furthermore, it was a representative suit and mere withdrawal as a representative would not affect the rights of entire tribe/village and their withdrawal in the circumstances, would not affect the rights of other people. The case-law referred and relied upon by the counsel for petitioners, in the circumstances, was not applicable and was distinguishable."
The withdrawal of appeal by the representatives if not set aside through the instant review petition may take judgment of the Referee Court to its finality against residents of Denin Lasht, who would definitely get adversely effected by finalization of such judgment. It has never been denied that petitioners in review petition had not been residents of Denin Lasht Chitral. They have been 67 in number and none of them has been claimed to be non-resident there. They had the right to be heard at the appellate forum as appellants in the appeal filed on their behalf in a representative capacity .
6. Coming to the facts of Review Petition No. 18-M/2018, it is apparent that appeal in this case had not been filed in representative capacity . It is however noticeable that before the order of withdrawal of the appeal petitioners in review petitions had filed C.M No. 07 of 2017. Their counsel had also been shown present on 21.03.2018 when the order under review was being passed. In said C.M petitioners had alleged certain apprehensions regarding the persons who had been seeking withdrawa l of the appeal. Such apprehensions may or may not be well-placed but it is important that this Court while allowing withdrawal of the appeal through the order under review , could neither consider contents of the application, nor arguments of learned counsel of the applicants who had been shown present in the order . Said C.M had in-fact escaped the attention of this Court when it had been passing the order under review , it is stated with great respe ct to the learned member of the bench. Said C.M had been very much pertinent and relevant to the factum of allowing withdrawal of the appeal not only in RFA No. 39-M of 2012 but also in the connected RFA No. 17-M of 2012. Non-consideration of C.M. No. 07 of 2017 and leaving it undisposed has also been an error floating on the face of record and same has furnished the ground for allowing the review petition and opening the appeal. After the appeal is opened it shall be seen whether the applicants had any legal right of substituting the appellants therein and pursuing the appeal or not. Maintainability of their application (C.M. No. 07 of 2017) shall also be taken at that stage and since connected appeal i.e. RFA No. 17-M of 2012 is being reopened, therefore appeal No. 39-M of 2012 would also stands reopened wherein the right of the applicants for standing on the panel of appeal No. 39-M of 2012 shall be adjudged.
7. In light of what has been discussed .above, both the review petitions i.e. 17-M of 2018 in RFA No. 17-M of 2012 as well as 18-M of 2018 in RFA No. 39-M /2012 are allowed, and both the orders sought to be reviewed thereby shall stand set aside. Both the appeals stand revived. Office is directed to re-enter both the appeals in the relevant register and accordingly treat it as pending appeals before this Court.