Muhammad Urfan and Muhammad Jan respondents, in this civil review, had filed a suit against the petitioner and respondents 3 to 42 herein which was dismissed by the learned trial Court vide its judgment dated 2-4-1987. In appeal, the plaintiff-respondents herein met the same fate inasmuch as the learned District Judge, Abbottabad found their appeal as barred by time and dismissed the same vide his judgment dated 20-7-1987.
2. A revision Petition No.104/87 was filed in this Court by the plaintiffs --respondents which came up for hearing in motion before a Single Judge of this Court (Nazir Ahmad Bhatti J.) on 27-1-1988. On this date, it appears that an application was moved on behalf of the petitioners therein for withdrawal from the suit with permission to bring a fresh suit on the plea that there are some, though without specifying formal defects in the prayer as well as the right of the plaintiffs- respondents in the suit, the subject-matter of the revision petition. This application of the plaintiffs- respondents in the said revision petition was accepted and the same was disposed of accordingly.
3. By this review petition Abdul Malik the petitioner-defendant has sought to review the order of the learned Single Judge of this Court dated 27-1-1988.
4. I have heard S. Abdus Salam Sarwar Advocate learned counsel for the petitioner and Mr. Nazir Ahmad Lughmani, Advocate learned counsel for the plaintiffs-respondents and also perused the record of the case with their valuable assistance.
5. The learned counsel for the review petitioner contended that no such order as passed by the learned Single Judge of this Court could be passed in a revision petition while in motion and without notice to the opposite party which is interested and affected thereby. He further submitted that the suit having been dismissed on merits and the appeal having been rejected on the point of limitation, has resulted in accruing a valuable right to the defendant-respondents in the revision petition which they could not be denied by allowing the plaintiffs-- respondents to withdraw their suit with the permission of filing a fresh one. The learned counsel thus urged that this tantamounts to condemning the defendants in the suit unheard which offends the principle of natural justice.
6. On the other hand the learned counsel for the plaintiffs-respondents herein submitted that this review petition is barred by time having been filed after the statutory period of 20 days of the judgment and decree as contemplated in Article 162 of the Limitation Act. He further maintained that the review against the order passed in revision, which is discretionary jurisdiction of the High Court, does not lie.
7. So far as the factual aspect of the matter is concerned it is undisputed that the impugned order of the learned Single Judge is passed in C.R. No.104/87 while heard by him in motion and no notice was issued to Abdul Malik defendant-petitioner herein.
8. The grievance of the petitioner, at the cost of repetition in essence, is that the learned Single Judge of this Court allowed the plaintiff to withdraw from the suit with permission to file a fresh one in the absence of the defendants and absence of any notice having been served upon them, has not only deprived them from their rights which accrued to them by way of dismissal of the suit by the trial Court and the appeal, particularly on the ground of limitation but it has also prejudiced their case and as such having been condemned unheard has resulted in miscarriage of justice as also violated the principle of natural justice.
9. The law relevant to withdrawal of suits is embodied in Order XXIII of the Code of Civil Procedure which may be reproduced with advantage:-
(1) Withdrawal of suit or abandonment of part of claim: -(a) 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 suit part of a claim:'
10. A bare reading of the provisions quoted above would reveal that the withdrawal of suit under sub-rule(2) of Rule I of Order XXIII is permissible only when the Court is satisfied that the suit is most likely to fail by reason of some formal defect or there exist other sufficient grounds but such order is to be passed on such terms as the Court thinks fit. Expression' on such terms as it thinks fit'. In my considered view, contemplates an order after afford in opportunity of hearing the other party which is going to be affected by such permission of withdrawal of the suit and accordingly the permission shall be contingent on such terms as the Court thinks fit as a natural corollary.
11. It can also be said with some amount of certainty that it would be possible only after hearing the opposite party, that the requisite satisfaction of the Court as per sub-rule(2) of Rule 1 of Order XXIII C.P.C. Can be manifested more objectively and the probability cannot be ruled out where the requisite permission is refused in a case particularly where certain valuable rights under the law accrued to the opposite party which are likely to be affected adversely. The instant case can be cited as a most appropriate example in this behalf.
12. A similar situation cropped up in case of Mst. Fatima v. Sardara PLD 1956 (W.P) Lah. 474 and it was held by Kaikaus, J. As he then was, in the following terms:-- "That does not mean that even the violation of the elementary principle that no party can be bound by an order passed behind his back could not be a ground for setting aside the order in exercise of powers of revision. This principle is deemed to be embodied in the provisions of the Civil P.C. Principles of natural justice do not need to be expressly embodied in procedural enactments. It is implied in all provisions of the Civil P.C. That an order which affects a party is to be passed only after notice to him." Although it was a decision in a revision petition filed under section 115 C.P.C., yet the principle laid down therein can legitimately be applied in the case under review with equal force inasmuch as Kaikaus J. Founded his judgment on the reasoning that the impugned order of withdrawal with the permission to file a fresh suit was passed without notice to the other party and the order did not show that the learned Civil Judge had applied his mind at all to the facts of the case.
13. Later in a case Abdur Rashid Sowdaqar v. S.M. Lalita Roy PLD 1959 SC 287 their Lordships of the Supreme Court were pleased to observe:- "...That certain rights flow from the order passed by a Court under Order XXIII rule (1)(2) C.P.C. And that before the Court passes the order it has to be satisfied as to the existence of the specified conditions. In such circumstances, therefore, a defendant would be entitled to be heard if any application is moved by the plaintiff for withdrawal of his suit with permission to institute a fresh suit."
14. Coming to the points raised by the learned counsel for the plaintiffs-- respondents herein, I do not subscribe to his view that in a revision petition, a review is incompetent solely on the ground that the order to be reviewed is passed in the discretionary jurisdiction of this Court. The learned counsel has relied on a case Sardar and others v. Sultan PLD 1971 Lah. 690 which on perusal would disclose that it hardly advances his case inasmuch as, in the instant case, the dismissal of the suit and the appeal preferred against this having been found barred by time, did clothe the defendant- petitioner Abdul Malik with certain rights which have vested in him due to the negligence of the plaintiff-respondents herein and it is quite aptly deserved in the above-cited case that: "There is no justification to interfere with the rights vested in the defence due to the negligence of the plaintiff."
15. Regarding this objection about the review petition being time-barred, he has relied on Article 162 which prescribe the period of 20 days for the review of judgment of High Court in exercise of its original jurisdiction from the date of decree or order. It will be pertinent to note that the impugned judgment passed by the learned Single Judge of this Court is a judgment passed not in exercise of the original jurisdiction of this Court but in the revisional jurisdiction. The learned counsel has rightly urged that the relevant provision in the instant case is Article 173 of the Limitation Act which prescribes a period of 90 days for he review of judgment except in cases provided for by Articles 161 and 162. From the date of the decree or order.
16. Accordingly I have no hesitation in holding that it will be Article 173 of the Limitation Act which shall apply to the instant review petition and that admittedly it is filed within the prescribed period of 90 days and hence cannot be held, by any stretch of imagination as barred by time.
17. The upshot of the afore going discussion is that this review petition is accepted, the order of learned Single Judge of this Court dated 27-1-1988 having been passed without hearing the petitioner Abdul Malik is consequently re-called. The revision petition No.104/87 is restored in its original form and is hereby ordered to be heard afresh in motion.
18. In the peculiar circumstances of the case, the parties are left to bear their own costs.
AA./857/PReview accepted. 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.