' SALEEM AKHTAR, J.---The petitioners seek leave to appeal against the judgment of the High Court of Sindh passed in HCA No,34 of 1984 dated 18-3-1991.
2. W/Cdr. Abdul Rashid Malik died on 24-3-1965 leaving behind a son who is the petitioner, Mst.
Zubeda Rashid Khan Malik, the widow, and Mrs. Shahida Naeem Malik daughter who is respondent No,1. The petitioner filed Administration Suit No,348 of 1964. As the parties compromised a preliminary decree in terms of compromise was passed 9-5-1970 whereby the house which is subject of the suit was to be sold. The Court appointed Administrator who was directed to sell the property. Paragraph 2 of the decree provided that the Administrator shall get the house bearing No,43, F/B, Block 6, PECHS, Karachi, surveyed and sold in open market and according to para. 3 the decision of the said Administrator regarding market value of the house shall be final which shall not be questioned by the parties. In purusance of the bids invited by the Administrator, Mrs. Atia Begum, the predecessor-in-interest of respondents Nos.2 to 8 offered a bid of Rs,2,11,000. The Administrator made a reference for approval of the bid of Mst. Atiya Begum which was accepted by the Court on 28-10-1974. The widow and respondent No,1 filed an application under section 151, C.P.C. For setting aside the order dated 28-10-1974. Another application under Order 23, Rule 2, C.P.C. Was filed by the parties to the suit praying that the Administrator be directed to mutate and transfer the said house in the name of Mst. Zubeda Rashid Khan Malik. Both the applications were rejected. In the first application in which the sale was challenged it was alleged by the applicants that they (defendants in suit) had received another firm offer ci Rs,2,20,000 from one Rana Saeed Akhtar which could not be communicated in time to the Administrator. While rejecting the application the offer of Mst. Atiya Begum who had voluntarily agreed to enhance it to Rs,2,20,000 was accepted by the Court. Alongwith the dismissal of this application the application under Order 23, Rule 2, C.P.C. Praying that mutation of the house in the name of the widow be made was also dismissed.
' The petition for special leave to appeal was filed but it was also rejected. According to the learned Single Judge in that petition for leave the order passed on application under section 151 challenging the sale was impugned while according to Mr. Z.U. Ahmed and Mr. Khalid Anwar the order passed on application under Order 23, Rule 2 was challenged. None of the parties have filed copies of these orders. The real controversy starts from the point when the parties to the suit filed an application under Order 23, Rule 1, C.P.C. Praying that the petitioner/plaintiff be allowed to withdraw the suit. This application was dismissed by the learned Judge in Chamber. After a careful consideration of the judgments cited at the Bar it was observed as follows:- "After careful examination of the above cases, I am of the view that under Order 23, Rule 1, C.P.C. a plaintiff has right to withdraw the suit unconditionally without reference to the inconvenience likely to be caused by such withdrawal to the defendant and no prior permission of Court is necessary in this regard. Such right of withdrawal possessed by the plaintiff is also not affected on account of passing of an interim order in the suit in the nature of appointment of receiver or grant of an interim injunction by the Court. However, where in a suit the Court passes a preliminary decree which determines the rights of the parties or fixes further course of proceedings or the suit is terminated by a compromise between the parties or an award is given by the arbitrator upon reference in the suit the plainjtiff cannot withdraw the suit and thereby nullify the effect of a preliminary decree or a compromise arrived at between the parties or the award in the suit. It is true that after passing of a p:eliminary decree in a suit, the Court will still have seis in over the case for the purpose of passing a final decree in the suit but it cannot be ignored that a party omitting to challenge the preliminary decree in a suit cannot challenge it while appealing against the final decree in the suit. A preliminary decree in a suit can ony be modified, altered or set aside in an appeal by the appellate Court."
' The learned Judge also considered the application filed by the heirs of Mst. Atiya Begum to be substituted in place of the deceased. The application was granted and it was observed as follows:- "I may, however, add that as the plaintiff and defendants have denied that the persons who have applied to be joined as L.Rs of late Mst. Atiya Begum are her L.Rs,, the Administrator shall before executing the final sale-deed in their favour shall ask them to produce an appropriate order from a competent Court of law establishing that they are the only legal heirs of late Mst. Atia Begum."
' The petitioner filed High Court Appeal which was dismissed by the impugned judgment.
3. Mr. Amjad Rashid Khan and Mrs. Shahida Naeem Malik have separately filed petition for leave to appeal challenging the impugned judgment. We have heard Mr. Z.U. Ahmad, Mr. Fazal Ghani and Mr. Khalid Anwar, the learned counsel for the parties. Mr. Z.U. Ahmed the learned counsel for the petitioner in Petition No,237-K of 1991 contended that Order 23, Rule 1 confers an unrestricted right on the plaintiff to withdraw the suit and as Atiya Begum had not acquired any right of any nature the suit ought to have been allowed to be withdrawn. The consequences of such withdrawal would have been setting aside of the preliminary decree and the sale which was ordered to be made and effected in favour of Atiya Begum. Order 23, Rule 1, confers a right in the plaintiff to withdraw the suit at any time after the institution against all or any of the defendants. He can withdraw or abandon the entire or part of his claim. However, this general rule will not apply in cases where a preliminary decree has been passed or where in pursuance of such a decree a third party interest has been created which shall be adversely affected. In such circumstances the right to withdraw the suit cannot be exercised without the consent of such third party. In Hulas Rai Baijnath v. K.B. Bass & Co.
Ltd. AIR 1963 Allahabad 368 it was held that in the absence of a preliminary decree or award of compromise, obviously it is open to the plaintiff to withdraw the suit. In Sirajuddin v. Mst. Amtul Rauf PLD 1977 Karachi 933, it was observed that although the plaintiff cannot be forced to withdraw the suit but the Court has the discretion to refuse the termination of the proceedings in cases where the defendant has acquired valuable rights or in cases where the plaintiff has sued in representative capacity so that the withdrawal of suit would affect the rights of others or in cases where the parties arrayed as defendants are also plaintiffs in the proceeding so that a decree in their favour must necessarily be passed if the suit culminates in judgment".
4. It is, thus, clear that under Order 23, Rule 1, C.P.C. The plaintiff does not have a right to withdraw the suit at his own free will affecting the rights of the defendants and also the rights of third parties which might have been created by or arising from the orders passed or proceedings taken in the suit.
5. The learned counsel for the petitioner have also contended that Atiya Begum did not have any right and in fact no right was created in her favour by merely offering to purchase the property and paying Rs,2,20,000 to the Administrator. In this regard reference has been made to Order 21, Rules 84, 85, sections 47 and 51 of C.P.C. Mr. Fazie Ghani Khan has particularly referred to these provisions to demonstrate that no sale was made in terms of the provisions of C.P.C. According to Mr. Khalid Anwar these provisions will apply at the stage of execution. As is obvious from the facts of the case that in pursuance of a consent preliminary decree the property was put to sale and offer was made by Atiya Begum which was objected to by the widow and the daughter (Shahida Naeem Malik) on the plea that a higher offer was available. Amjad Rashid Khan, the plaintiff, did not object to the sale. Consequently Atiya Begum increased the offer to Rs,2,20,000 which was accepted by the Court. There was no other objection reaised at that time except that an application under Order 23, Rule 2, C.P.C. Was filed by the petitioner for mutating the name of his mother. All these steps were taken to frustrate the sale and they did not succeed even up to the Suprme Court. Therefore, in order to achieve their end Amjad Rashid Khan filed application under Order 23, Rule 1, C.P.C. So that the suit may be allowed to be withdrawn and preliminary decree be set aside. This could not have been done for the simple reason that Atia Begum's bid to purchase the house was accepted by the Court. The entire exercise by the petitioners was merely to frustrate the sale which was to be effected in pursuance of the preliminary decree.
6. The learned counsel for the petitioner contended that the learned Single Judge should not have allowed the determination of the status of legal heirs of the deceased to the Administrator. The contention is completely misconceived. From the judgment of the learned Single Judge quoted above it is clear that the Administrator had been directed that before executing the fmal sale- deed in favour of the legal heirs he will require them to produce an appropriate order from the competent Court of Law establishing their status as legal heirs of Mst. Atiya Begum. This does not mean that the question was left for determination by the Administrator. We, therefore, dismiss the petitions with cost.