The petitioner Malik Mumtaz Ali claims to be a displaced person from Amritsar (now in India). On migration to Lyallpur in 1947 he was allotted the premises of the Malik Goods Transport Company situate on Plot No, 160/3, Circular Road, Lyallpur. Subsequently, this plot was acquired by the Provincial Government for extension of the Government College for Women, Lyallpur, and the petitioner was allotted Killa No, 5 of Square No, 81 comprised in the area of Chak No, 220/R. B. situated on Jhang Road within the municipal limits of Lyallpur Town. He took possession of this plot on the 17th of July 1952, and raised a permanent construction thereon comprising five rooms, four garages, two electrical and mechanical workshops and a canteen. He applied for the transfer of this building site under the pro-visions of Paragraph 13(1) of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (hereinafter referred to as the Urban Act), and an order of transfer was made in his favour by the Deputy Settlement Commissioner on the 30th of October 1960. Appendix X and P. T. 0. were issued on the 12th of November 1960.
2. However, subsequently the petitioner learnt that the Municipal Committee of Lyallpur had succeeded in obtaining, on the 30th of June 1959 (the year is incorrectly stated in the petition as 1960), sanction from the Central Government of Pakistan under section 25(2)(s) of the Pakistan (Administration of Evacuee Property) Act, 1957 (XII of 1957) for the sale in its favour of evacuee land measuring 152 acres 4 kanals and 15 marlas, including the plot in dispute. It is stated that the price to be charged from the Municipal Committee was left to be fixed by the Custodian of Evacuee Property, but the same has not yet been determined.
3. After stating these facts, the petition then sets out the grounds on which the legality of the sanction accorded by the Central Government is sought to be challenged. It is contended that there was no scheme at all for the establishment of a municipal market and, therefore, there was no public purpose for the sale of this land in favour of the Municipal Committee; that the Urban Act being subsequent in time, it would override Act XII of 1957, with the result that the plot in dispute having formed part of the compensation pool as constituted under section 4 of the Urban Act, was no longer available for disposal under section 25(2)(s) of Act XII of 1957; that in the exactly identical case relating to Killa No, 4 of the same Square in Chak No, 220/R. B. the Central Government had adopted a different attitude by directing that the Killa in question be treated as an urban building site and transferred to one Muhammad Amin Shah under the provisions of the Urban Act and, therefore, there is discrimination against the petitioner. It is submitted that on account of the sanction accorded by the Central Government being invalid and inoperative in law, the property continues to be available for transfer to the petitioner under Settlement Scheme No, VI, read with paragraph 13 of the Schedule to the Urban Act.
4. This petition was instituted on the 2nd of February 1963 and was admitted to a full hearing on the 6th of February 1963. However, on the 18th of January 1965 the Deputy Settlement Commissioner issued a Permanent Transfer Deed in favour of the petitioner, in spite of the fact that the petitioner had himself alleged before this Court that the Central Government had agreed to sell this land in favour of the Municipal Committee. Intimation of this new development was, however, not given to the Court, and the present petition remained pending until it came up for hearing before me in May 1970 along with a large number of other similar petitions. The learned counsel for the petitioner made a request for permission to withdraw the petition on the ground that the necessary relief had already been afforded by the Settlement Department by issuing the Permanent Transfer Deed. This request was strenuously opposed by the learned counsel appearing for the Municipal Committee mainly on the ground that the P. T. D, had been obtained by fraud, as the land was no longer available in the compensation pool as constituted under section 4 of the Urban Act. Mr. Akhtar Mir submitted that in these circumstances the Court should proceed with the case on merits and declare the transfer order obtained by the petitioner to be without jurisdiction and a nullity in the eye of law.
5. On the 19th of June 1970 the learned counsel for the Municipal Committee of Lyallpur submitted an application under rule 10 of Order I of the Code of Civil Procedure, read with Article 98 of the Constitution, for the transposition of the Municipal Committee as a co-petitioner with Malik Mumtaz Ali so as to challenge the legality of the P. T. D. issued by the Deputy Settlement Commissioner on the 18th of January 1965 in flagrant disregard of the sanction for sale granted by the Central Government on the 30th of June 1959 in favour of the Municipal Committee. This application was naturally resisted on behalf of the petitioner on the ground that there was no community of interest between the petitioner and the Municipal Committee.
6. Before proceeding with the merits of the case it is necessary to decide whether, in the facts and circumstances of the case, the petitioner Malik Mumtaz Ali should be permitted to withdraw this petition; and whether the Municipal Committee should be transposed as a co-petitioner so as to challenge the legality of the P. T. D. issued by the Deputy Settlement Commissioner on the 18th of January 1965.
7. I shall take up the second question first. Undoubtedly rule 10 of Order I gives wide powers to the Court to strike out or add parties who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, yet this power is not to be exercised in a manner so as to change the character of the suit. In the present case, the petitioner Malik Mumtaz Ali is claiming the transfer of the plot in dispute under the Settlement laws, and has in fact succeeded, during the pendency of this petition, to obtain a Permanent Transfer Deed from the Deputy Settlement Commissioner. His initial challenge was to the sanction accorded by the Central Government for the sale of this property in favour of the Municipal Committee. The latter is, however, setting up a completely contrary claim, namely, that the P. T. D. issued to Malik Mumtaz Ali is a nullity for the reason that the sanction accorded by the Central Government was valid and operative. There is thus no common cause of action between the petitioner and the respondent Committee, which now seeks to be transposed as a co-petitioner. The claim asserted by the Municipal Committee would completely alter the character of the suit. This is clearly not the intention of the power conferred on the Court by sub-rule (2) of rule 10 of Order I for striking or adding necessary or proper parties. The complete and effectual adjudication of the questions involved in the suit, as mentioned in the said sub-rule refers to the suit as instituted and not to a new cause of action presented by the defendant or the respondent who seeks to be transposed as a plaintiff or a petitioner. As authority for this view, one may refer to Jagabandhu Saha v. Haris Chandra Sil and others , A. M. Koman Nair v. Kunhambu Moolcheri Nair and another and Vanjiappa Goundan v. N. P. V. L. R. Annamalai Chettiar and others. Reference was made by the learned counsel for the Municipal Committee to Fa, yez Ahmad and another v. Kunchama Khatun and others in an effort to show that the power conferred on the Court by rule 10 of Order I was absolute and could be exercised even where the interest of the defendant seeking transposition was not identical with that of the plaintiff. I find that the case in question does not lend support to this view. It is true that their Lordships have observed that the power is absolute, yet they have added that it is discretionary and is to be exercised where it is necessary for ends of justice and to avoid multiplicity of suits. While referring to several authorities cited before them they have not, even once, stated that the power is to be exercised in a case where the interest of the defendant in question runs completely counter to that of the plaintiff. On the contrary, on page 266 of the Report, while discussing the dictum in the case of Nirode Chandra Banerjee v. Profulla Chandra Banerjee and others they have observed that "their interest may not be exactly identical, but it is similar as they also claimed to be co-sharers by inheritance and such co-sharers claim separate saham of their share just like plaintiff Parijan . . . . " It seems to me, therefore, that the power of ordering transposition is not to be exercised in a case where the defendant's claim runs completely counter to that set up by the plaintiff and would therefore, radically alter the character of the suit. I would accordingly disallow the Municipal Committee's application under rule 10 of Order I of the Code of Civil Procedure.
8. I now turn to the question whether the prayer of the petitioner to withdraw this petition should be allowed or not. In this connection there has been some discussion at the Bar whether the provisions of the Code of Civil Procedure apply to proceedings before the High Court under Article 98 of the 1962- Constitution. It is interesting that this question was raised by the learned counsel for the respondent Committee so as to oppose the petitioner's prayer, although the Committee had itself invoked the provisions of the Civil Procedure Code for being transposed as a co-petitioner.
9. It is not necessary for me to discuss at any length the question of the applicability of the provisions of the Civil Procedure Code to proceedings under Article 98 of the Constitution, in view of the latest judgment of the Supreme Court in Hussain Bakhsh v. Settlement Commissioner and others. The question before their Lordships was whether the High Court could review an order made by it in the exercise of its powers under Article 98 of the Constitution. After reviewing the various provisions of the Code and several decided cases, their Lordships reached the conclusion that the proceedings under Article 98 relating to a civil matter were civil proceedings although the High Court's jurisdiction in such proceedings was a constitutional jurisdiction of an original kind, and as such these proceedings were governed by the provisions of the Code of Civil Procedure, other than the provisions which were specially excepted. Their Lordships further observed that such being the case the power of review as conferred by section 114 of the Code, read with Order XLVII,1 2 3 4 5 6 would be available in respect of orders made by the High Court! in writ petitions coming before it.
The effect of the dictum of the learned Judges is that the provisions of the Civil Procedure Code would apply to writ proceedings subject to any specific! exceptions.
10.Now, sub-rule (1) of rule 1 of Order XXIII of the Code of Civil Procedure permits a plaintiff, at any time after the institution of a suit, to withdraw his suit or abandon part of his claim as against all or any of the defendants. Sub-rule (2) of the same rule mentions certain situations in which the Court may 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 same subject-matter. Sub-rule (3) then outlines the consequences as regards the costs etc., which may ensue if the plaintiff withdraws without the permission referred to in sub-rule (2). It will be seen that if the plaintiff is not seeking the permission of the Court to institute a fresh suit in respect of the same subject-matter or the cause of action, then he is at liberty to withdraw the suit at any time in terms of sub-rule (1) of rule 1 mentioned above. The Court does not appear, in such circum-stances, to have any power to compel the plaintiff to continue the suit (See Sm. Saras Wati Bala Samanta and others v. Surabala Dassi and others, Muralidhar Marwari v. Latif Mohan Sahu and others and Karim Gul and another v. Shahzad Gul and another . In view of these legal provisions, I cannot see how I can refuse permission to the petitioner to withdraw, or rather how I can compel him to continue the present proceedings against his own wishes and interest.
11.It is true that the petitioner had himself invoked the extraordinary jurisdiction of this Court and his position was that by an order made by the Central Government on the 30th of June 1959 the land in dispute had been taken out of the compensation pool, and accordingly during the pendency of the petition it was not proper for the Deputy Settlement Commissioner to issue a Permanent Transfer Deed without adverting to this aspect of the matter. However, as far as the petitioner is concerned, he has got the relief that he wanted and he is clearly right in saying that he does not wish to continue the present proceedings. I would accordingly dismiss this petition as withdrawn, leaving the parties to bear their own costs.
12.It is for the superior Settlement authorities, namely, the Chief Settlement Commissioner or the concerned Settlement Commissioner, to consider whether they would, in the exercise of their revisional jurisdiction, like to correct the orders made by the Deputy Settlement Commissioner on the 12th of November 1960 and the 18th of January 1965 so as to give effect to the sanction accorded by the Central Government under section 25(2)(s) of Act XII of 1957 for the sale of this property in favour of the Municipal Committee of Lyallpur. AIR 1922 Cal. 459 AIR 1935 Mad. 95 AIR 1940 Mad. 69 PLD 1961 Dacca 263 40 C L J 535 1969 SCMR 268 AIR 1957 Cal. 57 AIR 1962 Orissa 86 PLD 1968 Pesh. 134 revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.