TARIQ MEHMOOD JAHANGIRI, J.---Through the instant writ petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, the petitioner has impugned order bearing No. IC/SO/2021/1.1/650 dated 05.10.2021, whereby membership of the petitioner has been terminated with immediate effect.
2. Succinctly stated facts of the case are that the petitioner became member of the Islamabad Club in the year 1986, through Membership No. 737-NS and was enjoying the facilities of the Club along with his family members, by observing rules and regulations.
3. Through letter dated 02.07.2021, addressed to the petitioner, the Secretary Islamabad Club has informed that son of the petitioner namely Muhamamd Hamza Khan, while driving at a wrong side in the parking area became violent with the security staff and apart from hurling vituperations, he had a brawl with the Club security staff, which act was termed as a gross misconduct from a family member of a Club member. Subsequently, the matter was referred to the Disciplinary Committee and through impugned order dated 05.10.2021, the petitioner's membership of the Islamabad Club was terminated.
4. Learned counsel for the petitioner inter alia contends that the impugned order has been passed in sheer violation of the laws laid down by the superior Courts of the country. as the same has been passed in utter disregard of the Islamabad Club Membership Regulations, 2020; the denial of opportunity of hearing is a violation of the principle of-natural justice embodied in the doctrine of Audi Alteram Partem, hence the impugned order is liable to be set-aside and the respondents be directed to restore the membership of the petitioner, according to the prescribed rules and regulations.
5. Arguments heard, record perused.
6. It was reported on 02.07.2021, that Muhammad Hamza Khan son of the petitioner committed serious violation of Club rules and regulations, as he was driving at the wrong side in the parking area. Moreover, when the staff on duty tried to apprise him, he showed aggressive behavior, used abusive language and got physical with club security staff which is gross misconduct of a family member. The said act has caused annoyance to other members present there and is detrimental to the repute of the Club. The Islamabad Club rules and regulations facilitate all Hon'ble members to the optimum and mandate strict compliance with the code of conduct on the premises of Islamabad Club by all persons present. So keeping in view the regulations regarding the member's responsibility towards ensuring code and conduct of their family is reproduced as under; "(13). In the case of family members, the onus of maintaining the dress code, decorum and general conduct of the family will be the personal responsibility of the principal member."
7. The Club management has taken serious note of this incident. The matter was referred to the Disciplinary Committee for disposal as per Club regulations and in the meanwhile, the membership of the petitioner was suspended.
8. In pursuance to the suspension of membership, the matter was also reported to S.H.O Police Station Secretariat Islamabad for registration of case, contents of the compliant forwarded by the management of the Club are as below;
9. Subsequently, the petitioner approached the Club management and apologized for the incident and requested to withdraw the complaint against his son on humanitarian grounds, hence the complaint was withdrawn from S.H.O. Police Station Secretariat, Islamabad vide letter dated 08.11.2021.
10. The petitioner has filed a suit for declaration, permanent and mandatory injunction in the Court of learned Civil Judge West-Islamabad on 20.10.2021, wherein the impugned order of termination of his membership dated 05.10.2021, was challenged.
11. During the pendency of civil suit the petitioner filed an application on 06.11.2021, for summoning of case file and recording of statement for withdrawal of the case, hence the learned Civil Judge 1st Class, West-Islamabad summoned the file on the same day, recorded the statement and passed an order as below; "2. Plaintiff wants to record the statement, let same be recorded. Plaintiff Muhammad Islam Khan states that compromise has been effected between the parties, therefore, he wants to withdraw the suit. In this respect, learned counsel for the plaintiff and plaintiff himself put their signatures over the margin of order sheet.
3. In view of the above statement, request seems genuine, hence, allowed. Suit stands dismissed as withdrawn. After completion / compilation, case file be consigned to record room."
12. Son of the petitioner has also filed petition under sections 22-A/22-B, Cr.P.C. before the learned District and Sessions Judge, Islamabad for restraining the respondents / Islamabad Club from harassing him and his family members. The said petition under sections 22-A/ 22-B, Cr.P.C was also withdrawn un-conditionally on 08.11.2021, from the Court of learned Additional Sessions Judge- X, West-Islamabad.
13. As the petitioner filed a civil suit challenging the same impugned order dated 05.10.2021, in the learned Civil Court and has withdrawn the same unconditionally on the basis of compromise between the parties.
14. As far as resolving the proposition about the effect and the bar contained, regarding the institution of a fresh suit, as envisaged by Order XXIII, Rule 1, C.P.C. is concerned, it seems expedient to reproduce the said provisions, which reads as under:- "I. 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 the 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 authorize the Court to permit one of several plaintiffs to withdraw without the consent of the others."
15. As the petitioner neither applied for grant of permission to file fresh suit nor the learned Trial Court has granted any such permission to the petitioner, hence on the same cause of action the second suit cannot be filed. Reliance in this regard is placed upon the following dictums laid down by the Honb'le Supreme Court of Pakistan.
(i). Case titled as Khawaja Bashir Ahmed and Sons (Pvt.) Ltd. v. Messrs Martrade Shipping and Transport and others (PLD 2021 Supreme Court 373).
(ii). Case titled as Muhammad Yar (Deceased) through L.Rs. and others v. Muhammad Amin (Deceased) through L.Rs. and others (2013 SCMR 464).
16. Now, the important question, which may arise in the matter also is, if the bar of Order XXIII, Rule 1, C.P.C. shall also be attracted to and shall prevent the petitioner to invoke the constitutional jurisdiction of the High Court vesting in it under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, while dealing with the proposition, this Court in the context of applicability of Section 12(2), C.P.C. in the orders passed in its constitutional jurisdiction has held in a case titled as Secretary, Ministry of Religious Affairs and Minorities and 2 others v. Syed Abdul Majid (1993 SCMR 1171):- "It is well settled that the provisions of the Code of Civil Procedure are applicable to Constitution petitions filed in the High Court. Section 12(2), C.P.C. being a part of it will be applicable. In this connection the next point for consideration is whether in view of the fact that this Court had dismissed civil petition for leave to appeal filed by the appellants against the judgment of the High Court, application under section 12(2), C.P.C. could be filed in the High Court or in the Supreme Court. As held in the Government of Sindh and another v. Ch. Fazal Muhammad PLD 1991 SC 197, such application can be filed in the Court which passed the final order. The final order in the present case was passed by the High Court and therefore the application filed by the appellants there was competent."
This view was followed in the judgment reported as Province of Punjab through Collector, Sialkot v. Muhammad Irshad Bajwa (1999 SCMR 1555). In a case titled as Ardeshir Cowasjee and others v. Karachi Building Control Authority and others (PLD 2004 SC 70), wherein it has been categorically held that: "Provision of Civil Procedure Code could be resorted to in the Constitutional jurisdiction except where they were specifically excluded".
17. The proposition has been exhaustively dealt with in a full bench judgment of this Court reported as Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others (PLD 1970 SC 1), wherein while 'examining, whether the provisions of Civil Procedure Code could be resorted to for the purposes of review of an order/judgment passed by the High Court under Article 98 of the Constitution (the relevant Constitution of that time), it was held that:- "A proceeding under Article 98 of the Constitution concerning a. civil matter being a proceeding 'relating to the High Court's original civil jurisdiction and Section 114 of the Code conferring power of review not having been made inapplicable to the High Court in the exercise of its original civil jurisdiction, the power to review an order made by the High Court in its writ jurisdiction will be available to it under the said Section 114".
18. Thus, it is quite settled by now that the High Courts while exercising their jurisdiction under Article 199 of the Constitution in the matters pertaining to civil nature can validly and duly resort to the provisions of Civil Procedure Code, which shall be attracted and applied until and unless such application has been excluded by law.
19. It is admitted that the Islamabad Club is a statutory body but the service rules has been made by the committee of Islamabad Club are non-statutory. It is trite law when rules are non statutory in nature, the enforcement through constitutional jurisdiction of High Court was not in consonance with law and constitutional petition is not maintainable. Reliance is placed upon the cases titled as Abdul Wahab and others v. HBL and others (2013 SCMR 1383), Muhammad Zaman and others v.
Government of Pakistan (2017 SCM R 571), Pakistan Defence Officers Housing Authority v. Mrs. Itrat Sajjad Khan and others (2017 SCM R 2010).
20. In view of above, instant writ petition is not maintainable, hence dismissed in limine being meritless with no order as to costs.