' MUHAMMAD ILYAS, J.---This petition has arisen out of a suit brought by the respondent, Inayat Masih against the petitioners, Mst. Jewan, etc., for possession of a house, alleging that he was owner thereof. The petitioners resisted the suit contending that it was owned by them and not by the respondent. They also pleaded res judicata. After the framing of issues, the respondent examined three witnesses to prove his case. The petitioners, however, did not produce any evidence in rebuttal although they were given several adjournments, covering a period of about four years, to do so. It seems that they also stopped appearing in the suit with the result that ex parte decree was passed against them on the basis of the evidence produced by the respondent: Petitioners went in appeal before an Additional District Judge but without success. The appellate judgment and decree were assailed by them by making revision petition before the Lahore High Court but it was dismissed by a Single Judge of the said High Court. Hence this petition for leave to appeal against the judgment of the learned Judge in Chambers.
2. It was contended by learned counsel for the petitioners that the petitioners had placed on the record of the learned trial Court copy of plaint of an earlier suit brought by the predecessor-in- interest of the petitioners, Sadiq Masih against the respondent in respect of the house in dispute as well as the copies of the judgment and decree, passed in the said suit, in favor of their predecessor-in-interest. The argument precedes that since the earlier suit also related to the ownership and possession of the house in dispute, decision in the previous suit attracted the principle of res judicata qua the suit giving rise to the instant petition. It was, however, frankly conceded by learned counsel for the petitioners that the said three documents, relating to the previous suit, were not produced in evidence by the petitioners during the pendency of the suit out of which this petition has arisen. Having made this disclosure, he contended that it was the duty of the trial Court as well, as that of the higher Courts, which have dealt with the instant dispute earlier, to take judicial notice of the said documents and decided the issue of res judicata against the respondents.
3. We have gone through the documents in question. Obviously, they could not be taken into consideration because they were not part of the evidence. In other words, they could not be relied upon for recording a finding on the issue relating to res judicata. The petitioners have been grossly negligent in the matter of presenting their case. After the ex parte decree was passed against them, they did not make application for setting aside the said decree. Instead, they decided to go in appeal. Before the learned appellate Court, they did not make application for permission to produce the said documents as additional evidence, by invoking the provisions of rule 27 of Order XIII of the Code of Civil Procedure. No such effort was made by them even at the stage of revision before the learned High Court. As indicated earlier, they had four years to produce evidence before the learned trial Court but they did not care to do so. They did not even bother to tender the said documents in evidence by making a short statement. Valuable right this accrued in favor of the respondent due to the repeated failures of the petitioners to present their case squarely. It will be, to say the least, unfair to deprive the respondent of the right so earned by him and-to allow premium to the petitioners for their culpable negligence. As rightly observed by the learned Judge in Chamber, the issue of res judicata was to be decided like any other issue and if there was no evidence in support of the plea of res judicata, raised by the petitioners, the issue could not be decided in their favor. We allowed lot of time to learned counsel for the petitioners to make out a prima facie case for grant of leave but, alas, he was unable to do so.
4. As stated earlier, the petitioners were highly negligent right from the stage of trial Court till this time, in substantiating their plea of res judicata by producing adequate and convincing evidence.
It can hardly be denied that for the purpose of doing justice, the learned Additional District Judge could, of his own violation, order the production of the documents in question as additional evidence and also allow the respondents to produce evidence in rebuttal thereof; but case-law is also well-settled on the point that additional evidence should not be allowed to be produced to enable a party to fill up any lacuna in his case. This principle can more aptly be applied to the case of a person who has remained indolent, for years together, in the matter of producing oral or documentary evidence before the Trial Court. The petitioners' position in this regard was still worse at the stage of revision. We cannot, therefore, blame any of the Courts, which have dealt with this case earlier, for non-receipt of the said documents in evidence. The entire fault lies with the petitioners and so they must suffer the consequences thereof.
5. Upshot of the above discussion is that the petitioners have badly failed in making out a case for grant of leave to appeal against the judgment of the learned Single Judge. We, therefore, refuse the leave prayed for by the petitioners, and dismiss this petition.
Petition dismissed.
1996 SCR. 1433 [Supreme Court of Pakistan] Present: Saiduzzaman Siddiqui, Raja Afrasiab Khan and Muhammad Bashir Khan Jehangiri, JJ JAVAID IQBAL ABBASI & COMPANY---Appellant versus PROVINCE OF PUNJAB and 6 others---Respondents Civil Appeal No,1247 of 1995, decided on 9th June, 1996.
(On appeal from the judgment of Lahore High Court dated 10-10-1995 passed in W.Ps. 11880 and 12516/1995).
(a) Punjab Local Councils (Taxation) Rules,' 1990--- ----Sched., Item No,59---Conslitution of Pakistan (1973), Art. 185(3)---Grant of lease right to collect export tax on goods---Leave to appeal was granted to consider; whether there was a concluded binding contract for collection of export tax in favour of petitioner for specified year; whether petitioner had been legally deprived of the said contract; and whether judgment of High Court was in accordance with law. [p. 1437] A
(b) Civil Procedure Code (V of 1908)- ----0.XXIII, R. 1---Constitution of Pakistan (1973), Art. 199---Withdrawal of Constitutional petition unconditionally---Court when entitled to decline request for unconditional withdrawal of Constitutional petition---Constitutional petition being proceedings of civil nature, provisions of Civil Procedure Code, 1908, applied to it---Provisions of O.XXIII, R. 1, C.P.C. Were, thus, applicable to application for withdrawal of Constitutional petition---Court normally would not disallow application for unconditional withdrawal of Constitutional petition filed under Art. 199 of the Constitution after its institution but if Court comes to conclusion that application for withdrawal of proceedings has been made in order to defeat right of respondent or any other person to whom right to pursue such petition had accrued after filing of petition or withdrawal of proceedings would result in perpetuating fraud or injustice, Court would decline to allow petitioner to withdraw his Constitutional petition---Where reasons recorded by High Court for declining prayer for withdrawal of Constitutional petition were not only relevant but sound, no exception could be taken to the order in question of High Court. [pp. 1440, 1441, 1442] B, C & D Hussain Bakhsh v. Settlement Commissioner PLD 1970 SC 1; Stroud's Judicial Dictionary; Bradlough v. -Clarks 8 AC 354; Chakar Khan v. Commissioner, Sibi Division, Sibi 1979 CLC 829; Hussain Bakhsh v.
Settlement Commissioner and another 1969 SCMR 268; Messrs Hindustan Sanitary and Drainage Works v. Shabbir Burhani and 6 others PLD 1992 Kar. 21; Amjad Rashid Khan Malik v. Shahida Naeem Malik 1992 SCMR 485; Hulas Rai Baijnath v. K.B. Bass & Co. Ltd. AIR 1963 All. 368; Sirajuddin v. Mst.
Amtul Rauf PLD 1977 Kar. 933 and Riaz Malik v. Amina Parka"' PLD 1988 Kar. 560 rel.
(c) Punjab Local Councils (Taxation) Rules, 1990--- ----Sched., Item No,59---Collection of export tax through auction---Petitioner claimed to be the highest bidder---Highest bid in auction being subject to approval of Zila Council, which at relevant time was not functioning, rejection by Minister concerned for cogent reasons and directing re- auction of same whether amounted to infringement of vested right of appellant---Merely by participating in auction and giving highest bid, appellant did not acquire any vested right to get his bid accepted---Highest bid in auction was subject to approval of Zila Council which at that time was not functioning and same was rejected by Minister concerned who, after giving cogent reasons directed re-auction of lease rights---Where Government or Public functionary disposes of property or rights in property through public auction and bid offered in such auction is subject to approval of Government or Authority authorised by Government then such Authority can reject the highest bid on ground of inadequacy of consideration or for any other good and sufficient reason which would satisfy test of reasonableness and public interest---Where, however, highest bid was accepted at the auction but was subsequently rejected by the Government or the Authority who had final say in the matter, accepted any other bid surreptitiously without giving any opportunity to highest bidder to raise his bid to match other higher bid offered privately and received by such Authority, then such an auction would be violative of principles of natural justice and fair play--- Where highest bid was rejected and re-auction was ordered which afforded equal opportunity to persons whose bid had been rejected, then principle of natural justice would not be deemed to have been violated---Fact that one of respondents had offered on re-auction sum of over Rs,four crores for the lease period of only 7 months as against appellants' bid of much less amount for a period of 12 months, was enough to show that order of re-auction was eminently a just and proper order passed by High Court---Order of High Court was affirmed in circumstances. [pp. 1446, 1449] E & F Ram Shyam Co. v. State of Haryana AIR 1985 SC 1147; Trilochan Mishra v. State of Orissa (1971) 3 SCC 153; AIR 1971 SC 733; State of Uttar Pradesh v. Vijay Bahadur Sing (1982) 2 SCC 365; State of Orissa v. Harinarayan Jaiswa l (1972) 3 SCR 784; AIR 1972 SC 1816; Vijay Bahadur Singh's case AIR 1982 SC 1234; Ramana Dayaram Shetty v. The International Airport Authority of India (1979) 3 SCR 1014; AIR 1979 SC 1628; Kasturi Lal Lakshmi Reddy v. State of Jammu and Kashmir (1980) 3 SCR 1338 and AIR 1980 SC 1992 ref. SCMR Gul Zarin Kiani, Advocate Supreme Court with Ch. Akhtar Ali, Advocate-on-Record for Appellant.
Muhammad Yawar Ali, Additional Advocate-General, Punjab for Respondents Nos.1 and 2.
Dr. Muhammad Mohyuddin Qazi, Advocate Supreme Court with Ejaz Muhammad Khan, Advocate- on-Record for Respondent No,4.
Anwar H. Mir, Advocate-on-Record for Respondent No,7.
Date of hearing: 8th May, 1996.
' SAIDUZZAMAN SIDDIQUI, J.---Zila Council, Okara (hereinafter to be called as the 'Council' only), invited bid in an open public auction for grant of lease right to collect export tax on goods for the year 1995-96 (1-7-1995 to 30-6-1996). The auction was held on 17-7-1995 in which ten bidders including the appellants took part. The appellants offered the highest bid of Rs,2,47,000,00 which was higher than the amount of lease money offered for the year 1994-95 (1-7-1994 to 30-6-1995).
The auction committee accepted the highest bid offered by the appellants and recommended to the council for acceptance of the same. At the relevant time on account of curtailment of the term of office of the Council by the Government under section 26-A of the Punjab Local Government Ordinance, 1979 (hereinafter to be called as 'the Ordinance' only), the powers and functions of the Council were entrusted to the Administrator, appointed by the Government under section 26-A (2) of the Ordinance. The Administrator forwarded. The relevant documents to the Secretary, Government of Punjab, Local Government and Rural Department (E.G. & R.D.) recommending that the bid offered by the appellants may be confirmed. A summary was prepared for the Minister for Local Government by the Secretary,. L. G. & R. D. On which the Minister passed the following order:-- "Complaints are being received that fair competition was not held and there was a pool between the Contractors. An offer of Rs,2,60,00,000 has been received from Safdar and Company duly supported by C.D.R. Of Rs,25,00,000.
' In view of the above the bid is rejected. The Administrator, Zila Council Okara may be directed to put the collection rights of Exit Tax to re-auction immediately."
2. On the basis of the above order of Minister Local Government, the Secretary L.G.&R.D. Informed the Administrator, Zila Council Okara on 1-8-1995 that the bid offered by the appellants has been rejected by the Minister, and therefore, lease rights for collection of export tax be put to re-auction immediately with the reserve price of Rs,2,60,00,000 offered by M/s. Safdar and Company (respondent No,3). Instead of implementing the order of re- auction passed by the Minister, LG&RD, the Administrator, Zila Council Okara, wrote to the Secretary, LG & RD on 3-8-1995, recommending that the auction proceeding held on 17-7-1995 were regular and that the order of the Minister for re-auction of lease rights was based on facts which were misrepresented by respondent No,3. In reply to the above letter of Administrator, the Section Officer No,VI, Government of Punjab LG&RD wrote to Administrator, Zila Council, Okara on 31-8-1995 that the Minister for Local Government has approved the bid of Rs,2,47,00,000 offered by the appellants. It appears that the appellants, thereafter, made a representation to the Administrator of the Council contending that the lease right was auctioned in their favor on 17-7-1995 for a period of one year commencing from 1-7-1995 to 30-6-1996 while the approval of bid conveyed to them mentioned the period of lease as 11 months only. The appellants, accordingly, requested that the lease may be treated for 12 months as originally agreed at the time of auction. This request was acceded to and it was clarified that the lease will be treated for 12 months commencing from 1-7-1995 to 30-6-1996. The appellants made yet another representation to the Secretary, LG&RD seeking clarification that as the work order was issued in their favor on 3-9-1995, the period of 12 months should commence from that date. This request of the appellants too was acceded to on 19-9-1995. Respondent No,3 who had offered the higher bid of Rs,2,60,00,000 and had deposited a sum of Rs,25,00,000 and on whose representation the Minister L.G. Had rejected the bid of the appellants and ordered re-auction of lease rights, filed Writ Petition No,11880/95 in Lahore High Court challenging the subsequent order of the Minister L.G. Approving the bid of appellants in the sum of Rs,2,47,00,000. While this writ petition was pending another Writ Petition No,12516/95 was filed by one Waheed Iqbal (respondent No,4) against Province of Punjab and others to challenge the order of the Minister dated 31-8-1995 accepting the bid of appellants for Rs,2,47,00,000. Both the writ petitions came up for hearing together before a learned Judge in Chambers of Lahore High Court on 26-9-1995. At the hearing of the petitions, respondent No,3 who was petitioner in Writ Petition No,11880/95 submitted an application seeking unconditional withdrawal of his writ petition while respondent No,4 moved an application offering a bid of Rs,3,47,00,000 for lease right to collect goods exit tax for 12 months along with a deposit of Rs,25,00,000. The learned Judge in Chambers rejected the application filed by respondent No,3 for withdrawal of Writ Petition No,11880/95 and after hearing the petitions on merit through a consolidated judgment allowed both the petitions and declared the order passed by the Minister on 31-8-1995, confirming the bid of appellants for Rs,2,47,00,000 as illegal and without lawful authority and further directed that fresh auction be held with base-line of Rs,3,47,00,000 which was the bid offered by respondent No,4 in writ Petition No,12516/95. It was further observed by the learned Judge in the impugned judgment that in case respondent No,4/petitioner in Writ Petition No,12516/95, did not stick to his offer of Rs,3,47,00,000 the sum of Rs,25,00,000 deposited by him would be forfeited.
3. Leave was granted in the above case to consider the following legal contentions raised by the learned counsel for the appellants:-- "4. We cannot go into the above question. However, we are inclined to grant leave to consider the following questions:--
(i) Whether there was a concluding binding contract for the collection of export tax in favor of the petitioner for the above year?
(ii) Whether the petitioners have been legally deprived of the above contract? And
(iii) Whether the High Court's impugned judgment is in accordance with law?"
' We have heard the learned counsel for the appellants, the learned Additional Advocate-General.
Punjab, and learned counsel for the respondents.
4. Mr. Gul Zarin Kiani, the learned counsel for the appellants has raised the following contentions in support of the appeal. It is firstly: contended by the learned counsel that the application filed by respondent No,3 for unconditional withdrawal of Writ Petition No,11880/95 could not be declined as the respondent No,3 had the absolute right to withdraw the same in view of the provisions of Order 23, Rule 1, C.P.C. Which applied to the proceedings before the learned Judge in Chambers. The learned counsel, accordingly, contended that in view of withdrawal of Writ Petition No,11880/95, no order could be passed by the learned Judge in Chambers in respect of the auction confirmed in favor of appellants as no proceedings in the eyes of law was pending before the learned Judge after withdrawal of Writ Petition No,11880/95. With regard to Writ Petition No,12516/95 filed by respondent No,4 challenging the order of Minister, L.G. Dated 31-8-1995, approving the auction bid of appellants, the learned counsel for the appellants contended that respondent No,4 did not take part in the auction held on 17-7-1995, and therefore, he had no locus stand to maintain the petition.
It is lastly, contended by the learned counsel that in any case the Minister, L.G. On having been apprised of true position, withdrew his order dated 20-7-1995 and as such the appellants could not be deprived of their right of lease which became absolute and binding on the parties.
5. The learned Additional Advocate-General, Punjab, though did not dispute that the Minister, L.G.
After passing the order dated 20-7-1995 rejecting the auction bid of appellants and ordering re- auction of lease rights, had subsequently approved the bid offered by the appellants in the auction held on 17-7-1995 for Rs,2,47,00,000, but contended that as the order rejecting the bid of appellants and directing re-auction of lease right was not specifically recalled by the Minister L.G., in the circumstances, the order of the High Court directing re-auction of lease right for collection of goods exit tax was a just and proper order which may not be interfered with learned counsel appearing for respondent No,4 also supported the order of the High Court. It may be mentioned here that in accordance with the order of learned Single Judge, the contract for lease right to collect good; exit tax was put to re-auction on 5-11-1995 and respondent No,7 who was subsequently impleaded as party in the petition before the High Court, became a successful bidder in the auction by offering a sum of over Rs four cores for the contract of lease right for a period of only 7 months The learned counsel for respondent No,7 supported the appeal.
6. The first question which arises for consideration in this case is whether the learned Judge in Chambers was justified in rejecting the prayer of respondent No,3 for unconditional withdrawal. Of his Writ Petition No,11880/95. The learned counsel for the appellants contended that Order 23, Rule 1, C.P.C. Which applied to the proceedings under Article 199 of the Constitution placed no fetters on the right of a plaintiff to withdraw the suit unconditionally. It is, accordingly, contended by the learned counsel for the appellants that after filing of the application for withdrawal of Writ Petition No,11880/95, by respondent No,3, the learned Judge could not decide the petition on merits as in law he had no valid proceeding pending before him. The learned counsel for respondent No,4 on the other hand has contended that besides Petition No,11880/95, another Petition No,12516/95 filed by respondent No,4 was also pending before the learned Judge in Chambers and, therefore, withdrawal of Petition No,11880/95 by respondent No,3 could not prevent the learned Judge from deciding the validity of the order of Minister dated 31-8-1995, which was also questioned in Writ Petition No,12516/95 instituted by- respondent No,4. It is also contended by the learned counsel for respondent No,.4 that the-application filed by respondent No,3 withdrawing Writ Petition No,11880/95 was a mala fide act and therefore, the Court was not bound to grant the same especially when rights had accrued to other parties on account of order passed by the Minister L.G.
Dated 20-7-1995 directing re-auction of lease rights to collect goods exit tax.
7. The contention of the learned counsel for the appellants that provisions of Order 23, Rule 1, C.P.C.
Applied to the proceedings before the learned Judge in Chambers, is not seriously disputed. In the case of Hussain Bakhsh v. Settlement Commissioner (PI D 1970 SC 1), this Court while dealing with the contention whether the provisions of Code of Civil Procedure applied to the proceedings under Article 98 of the 1962 Constitution made the following observations:-- "The writ jurisdiction under Article 98 of the Constitution, as already stated, is an original jurisdiction.
Obviously, the jurisdiction under that Article pertains to civil as well as other matters. At the moment, I shall consider the nature of the proceeding arising out of a writ petition relating to a civil matter, as in the instant case. A proceeding taken for the enforcement of a civil right is a civil proceeding, whatever may be the source of the Court's jurisdiction invoked for enforcement of such a right. According to Stroud's Judicial Dictionary, 'Civil Proceeding' is a process for recovery of individual right or redress of individual wrong, inclusive, in its proper legal sense, of suits by the Crown see Brad lough v. Clarks 8 AC 354. Whether a proceeding is civil or not depends on the nature of the subject-matter of the proceeding and its object, and not on the mode adopted or the forum provided for the enforcement of the right. A proceeding which deals with a right of a civil nature does not cease to be so merely because the right is sought to be enforced by having recourse to the writ jurisdiction. Judged from these aspects, a proceeding under Article 98 of the Constitution relating to a civil matter is a civil proceeding, although the High Court's jurisdiction in such a proceeding is Constitutional jurisdiction of an original kind. A civil proceeding in a Court of civil jurisdiction is governed by the Code of Civil Procedure (see its preamble). By virtue of section 117 of the Code,. a civil proceeding in a High Court is also governed by the provisions of the Code other than the provisions which are specially excepted. A proceeding under Article 98 of the Constitution concerning a civil matter being a civil 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 if that section is otherwise applicable. Section 1.14 of the Code reads thus: 'Subject as aforesaid, any person considering himself aggrieved--
(a) by a decree or order from which an appeal is allowed by this Code, but from which no appeal has been preferred,
(b) by a decree or order from which no appeal is allowed by this Code, or
(c) by a decision on a reference from a Court of Small Causes, may apply for a review of judgment to the Court which passed the decree or made. The order, and the Court may make such order thereon as it thinks fit' ."
' In the case of Chakar Khan v. Commissioner, Sibi Division, Sibi (1979 CLC 829), a Division Bench of High Court of Sindh while considering application of Order 23, Ruce 1, C.P.C. To the proceedings before High Court under Article 199 of the Constitution made these observations:-- "The principles embodied in Order XXIII, rule 1 are applicable to Constitution petitions as the proceedings under Article 199 of the Constitution relating to a civil matter are civil proceedings in view of the judgment of their Lordships of the Supreme Court in Hussain Bakhsh v. Settlement Commissioner and another 1969 SCMR 268."
8. In view of the above stated legal position we are of the view that the Writ Petition No,11880/95 filed before the learned Judge in Chambers being proceeding of a civil nature, the provisions of C.P.C. Applied to it. Consequently, provisions of Order 23, Rule 1, C.P.C. Were applicable to the application for withdrawal of writ petition filed by respondent No,3. The learned Judge in Chambers, however, rejected the application for withdrawal of Writ Petition No,11880/95 filed by respondent No,3 with these observations:-- "The petitioner in Writ Petition No,11880-95 filed an application in Court under section 151, C.P.C.
Through another learned counsel Mr. Ihsanullah Khan Lillah making prayer for the withdrawal of his writ petition as the same according to him was filed under same misunderstanding'. Since I was not satisfied with the bona fide of the stance of the petitioner, I checked his signature on the bid sheet (Annexure B) of his petition at Serial No,6. Firstly he denied his signature but after some time he stated that it was he who had affixed his signature on the bid sheet at Serial No,6. Due to contradictory stances taken by him in the Court he was asked to produce his National Identity Card and was also directed to sign in Urdu on a paper. I noticed that his signature on the Identity Card is in English while signature got in Court on a paper in Urdu did not at all tally with his signature on the bid sheet. Learned counsel for the respondents Nos.3 to 5 Mr. Ali Ahmad Awan also supported the stance vehemently qua the withdrawal of the Constitutional petition. It is not denied that the writ petitioner has got right to withdraw his petition but the same cannot be exercised freely after the notices have been issued to the other have incurred a lot of expenses in order to cause their representation in the list particularly so when the illegalities pointed out by the petitioner prima facie satisfied the Court resulted in the issuance of the notice. In this case the Minister for Local Government and Rural Development earlier ordered for reaction on 23-7-1995 because of the alleged pooling of the contractors. This assertion of the Minister qua pooling among the contractors gets some support from the conduct of the parties demonstrated before this Court in the matter of withdrawal of the Constitutional petition. The petitioner advanced a vague reason of 'misunderstanding' in seeking the permission to withdraw. If this tendency is allowed to continue this would certainly give undue lever to the unscrupulous litigants to come to this Court with the bundle of allegations and after succeeding in getting issuance of notices to the other side, would settle their score by withdrawing their Constitutional petition in the amidst. There is another aspect of the matter in this case which cannot be lightly overlooked as the same allegation respecting the conduct of auction and pooling of the contractors is also the subject-matter of the connected writ petition. In this background after having noticed the illegalities committed in the acceptance of the, bid I am not persuaded to accede to the prayer of withdrawal after issuance of notice to the other side. Reliance in this respect is placed upon Messrs.' Hindustan Sanitary and Drainage 'Works v. Shabbir Burhani and 6 others (PLD 1992 Karachi 21)."
9. It is true that under Order 23, Rule 1, C.P.C. The respondent No,3/petitioner had the right to withdraw his Writ Petition No,11880/95 unconditionally at any time after its institution and the Court normally could not decline such prayer. It is, however, not correct to argue that the right to withdraw suit unconditionally under Order 23, Rule, 1, C.P.C. Is absolute in nature and that under no circumstances the Court would refuse such prayer: The Court may decline the request for unconditional withdrawal of a suit/proceeding where the nature of suit/proceeding is such that both plaintiff and defendant may be entitled to relief in the case. For instance in a suit for administration, for a suit for accounts or a suit for partition of the property the plaintiff cannot claim absolute right to withdraw the suit unconditionally, if the defendants opposed the prayer. Similarly, in cases where the defendant after filing of the suit acquires a right in respect of the subject- matter of the suit, the plaintiff could not be allowed to withdraw the suit where the right acquired by defendant is likely to be defeated by withdrawal of the suit. In the case of Amjad Rashid Khan Malik v. Shahida Naeem Malik (1992 SCMR 485) this Court while considering the argument that the plaintiff has an absolute right under Order 23, Rule 1, C.P.C. To withdraw the suit at any time after its institution, repelled the contention, as follows:- "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 aifected. 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 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."
' Similarly, in the case of Sirajuddin V. Amtul Rauf (PLD 1977 Karachi 933), a learned Judge in Chambers of High Court of Sindh on the scope of Order 23, Rule 1, C.P.C. Made theie observations:-- "Now there is no doubt that Order XXIII, rule 1, clause (3), C.P.C. Authorises the plaintiff to withdraw the suit at any time after the institution of the suit without the permission of the Court and the only consequence of such withdrawal is that 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. As a general rule, therefore, the plaintiff can do this of his own accord and the order of the Court is not necessary for the purpose. However, it seems that the Courts have taken the view that plaintiff cannot be allowed to withdraw the suit so as to deprive the defendant of any rights that may have accrued to him. Incidents of such cases are in odse Of partition where the defendant has become entitled under section 3 of the Partition Act to purchase the plaintiff's share at a valuation to be fixed by the Court or where in a suit for partition or a suit for accounts a preliminary decree has been passed. In such cases judicial opinion has leaned against giving the plaintiff an absolute right of terminating the suit by withdrawing it."
' In the case of Riaz Malik v. Amina Parkah (PLD 1988 Karachi 560), a learned Division Bench of High Court of Sindh while considering the right of a plaintiff to withdraw a suit unconditionally under Order 23, Rule 1, C.P.C. Observed as follows:-- "We are inclined to hold that though under Order XXIII, rule 1, C.P.C. a plaintiff has the right to withdraw the suit, if he is not seeking the permission to file a fresh suit on the same cause of action but the Court can decline such an application in a suit, where all the parties are treated as plaintiffs and defendants for the purpose of grant of relief or in a case where the grant of the same, would perpetuate injustice or fraud."
10. From the above discussed legal position, we are of the view that normally the Court will not disallow an application for unconditional withdrawal of a writ petition filed under Article 199 of the Constitution after its institution but if the Court comes to the conclusion that the application for withdrawal of the proceedings has been made in order to defeat the right of respondent or any other person to whom the right to pursue the petition has accrued after filing of the petition or withdrawal of the proceedings, would result in perpetuating a fraud or injustice, the Court may decline to allow the petitioner to withdraw the case. The Court may also in appropriate cases, where it comes to the conclusion that the purpose of withdrawal of proceeding is only to prevent the Court from passing an order undoing a wrong or an injustice done to a party or the withdrawal would deprive the Government or a public functionary to receive or recover the public dues, or the withdrawal would otherwise defeat the ends of justice, decline the prayer for withdrawal of petition filed under Article 199 of the Constitution seeking equitable relief from the Court. After going through the reasons recorded by the learned Judge in Chambers of declining the prayer for withdrawal of Writ Petition No,11880/95, we are satisfied that reasons given by the learned Judge were not only relevant but the apprehension expressed by the learned Judge regarding the real motive for withdrawal of the petition came to be true when the lease rights were put to re-auction under the impugned judgment. Apart from it, there was another writ petition before the learned Judge in which the order passed by the Minister, L.G. Dated 31-8-1995, was also challenged and apparently the Government which was party in both the petitions was not supporting the order of Minister dated 31-8-1995. We are, therefore, of the view that in the circumstances of the present case, no exception could be taken to the order of learned Single Judge declining the prayer for withdrawal of Writ Petition No,11880/95.
11. The next question which arises for consideration in this case is, whether the appellants by virtue of participating in the auction held on 17-7-1995 and by giving the highest bid had acquired a vested right to get the contract for lease rights to collect goods exit tax. It is not disputed by the parties before us that the auction held on 17-7-1995 was subject to the approval of the Council. It is also an admitted position in the case that at the relevant time, the Council was not functioning as the period of the Council was curtailed by the Government under section 26-A of the Ordinance and therefore, the functions of the Council were being performed by an Administrator appointed by the Government under section. 26-A(2) of the Ordinance. There is nothing on record to show that the Administrator confirmed the bid offered by the appellants. On the contrary, the material produced before us clearly shows that the Administrator after receipt of the proceedings of the auction held on 17-7-1995, addressed a letter to the Secretary, LG&RD recommending that the bid offered by the appellants may be accepted/confirmed being the highest bid. The Secretary, LG&RD in turn prepared a summary for the Minister, L.G. And placed the bid of appellants for approval who rejected the same on 20-7-1995, with these observations:- "Complaints are being received that fair competition was not held and there was a pool between the Contractors. An offer of Rs,2,60,00000 has been received from Safdar and Company duly supported by C.D.R. Of Rs,25,00,000.
' In view of the above the bid is rejected. The Administrator, Zila Council, Okara may be directed to put the collection rights of Exit Tax to re-auction immediately."
12. It is, therefore, quite clear that until 20-7-1995 the bid of appellants was not confirmed. On the contrary it was rejected by the Minister concerned and a re-auction was ordered. Mr. Gul Zarin Kiani, the learned counsel for the appellants contended that the order of the Minister dated 20-7- 1995 was an order without jurisdiction as under the rules it was Zila Council which was competent to reject or approve the bid. Since, the Council was not functioning at the relevant time and these functions were being performed by the Administrator appointed by the Government under section 26-A(2) of the Ordinance, the recommendation of the Administrator for accepting the bid amounted to confirmation of the bid given by the appellants in the auction held on 17-7-1995. We are unable to accept the contention of the learned counsel. Firstly, the recommendations made by the Administrator to the Secretary, LG&RD did not amount to confirmation or acceptance of the bid offered by the appellants by the Administrator. Secondly, the Provincial Government being the controlling authority of Zila Council under the Act and at the relevant time Zila Council not being in existence, the order passed by the Minister concerned on the summary sent to him by the Secretary, LG&RD rejecting the bid of appellants and ordering re-auction of lease right to collect goods exit tax in the circumstances of the case, did not suffer from lack of jurisdiction. In any case, the bid having been once disapproved/rejected by the Minister concerned and re-auction of lease rights ordered by the Government, the principle of locus penitential applied and the order dated 20-7-1995 could not be recalled or modified by the same authority. In addition to it, the letter addressed by Section Officer of the department of LG&RD, Government of Punjab to the Administrator conveying the confirmation of bid offered by the appellants in the auction held on 17-71995 did not show that the earlier order of Minister, L.G. Passed on 20-7-1995 rejecting bid of the appellants and directing re-auction was recalled by the Minister. In the absence of the order recalling the earlier order dated 20-7-1995 whereby bid of the appellants offered in the auction dated 17-7-1995 was specifically rejected and re-auction was ordered, the bid offered by the appellants in the auction held on 17-7-1995 could not be accepted by the Minister. The Administrator, Zila Council Okara, and the appellants having failed to challenge the order of the Minister, L.G. Dated 20-7-1995, rejecting the bid of appellants and directing the re-auction of lease rights to collect goods exit tax, no rights could be claimed on the basis of auction held on 17-7-1995.
13. Mr. Gul Zarin Kiani, the learned counsel for the appellants also contended that the order passed by the Minister on 20-7-1995 was an order wholly without jurisdiction as this order was passed without hearing or without affording any opportunity to the appellants, who were the highest bidder in the auction. In support of his contention, the learned counsel heavily relied upon a case from Indian jurisdiction reported as Ram Shyam Co. v. State of Haryana (AIR 1985 SC 1147) wherein the Indian Supreme Court found the rejection of the highest bid of the person who participated in the auction of mining lease, without giving him an opportunity to raise his bid to match the offer made by another party privately, as arbitrary and against the principle of fair play. The facts of the above Indian Supreme Court case relied by the learned counsel or the appellants are very interesting and pay be mentioned here to understand correctly the context in which the Indian Supreme Court made the above observations. In the above Indian Supreme Court case, the appellant became a successful bidder for the contract of mining lease in an auction held on 26-12- 1980 against a bid of Rs,1,52,000 per annum. The bid was accepted by the Presiding Officer of the auction but the State Government did not confirm the same. Consequently, a fresh auction, took place on 4-5-1981 in which the appellant again participated and gave bid of Rs,3,87000 for a period of 3 years. Once again the Presiding, Officer accepted the bid but the State Government declined to confirm the same. It appears that respondent No,4 in that case made a private offer to the Chief Minster of Haryana offering Rs, 4,50000 per annum. The private offer was accepted b the Chief Minister. The appellant in that case challenged the action of the Chief Minister in a writ petition before the High Court of Punjab and Haryana in which it was alleged that respondent No,4had not participated in the auction and made false allegations against him and without giving him any opportunity the Chief Minister accepted the offer of respondent No,4. The writ petition was dismissed against which appeal was filed before the Indian Supreme Court. Before the Indian Supreme. Court it was urged by the Attorney-General of India that in case the property is put to auction and it did not reach up to highest bid given by respondent No,4 who will make good the losses? The Court, thereupon, asked the counsel for the appellant that in case the highest bid fell short of the amount of Rs,4,50,000 offered by respondent No,4 in that case, the appellant in that case would agree to take the contract at the value of Rs,5,50,000. Such an affidavit was filed before the Indian Supreme Court. The Supreme Court at the same time allowed the parties to raise their offers further if they so wanted. The result was that both the parties namely the appellant and respondent No,4 in that case increased their respective offers step by step and finally the appellant in that case made a final offer of Rs,25,00000 before the Supreme Court of India as against his original auction bid of Rs,3,87,000. It was in this context and background that Indian Supreme Court made, the following observations in paragraph 13 of the judgment, which are as follows:-- "13. Approaching the matter from this angle, can there be any doubt that the appellant whose highest bid was rejected by the Government should have no opportunity to improve upon his bid more so when his bid was rejected on the ground that it did not represent adequate market consideration for the concession to extract minor mineral. A unilateral offer, secretly made, not correlated to any reserved price made by the fourth respondent after making false statement in the letter was accepted without giving any opportunity to the appellant either to raise the bid or to point out the falsity of the allegations made by the fourth respondent in the letter as also the inadequacy of his bid. The appellant suffered an unfair treatment by the State in discharging its administrative functions thereby violating the fundamental principle of fair play in action. When he gave the highest bid, he could not have been expected to raise his own bid in the absence of a competitor. My expectation to the contrary betrays a woeful lack of knowledge of auction process.
And then someone surreptitiously by a secret offer scored a march over him. No opportunity was given to him either to raise the bid or to controvert and correct the erroneous statement."
' In the above-cited case, the learned Judges of Supreme Court after referring to various decisions of the Indian Supreme Court wherein the right of Government not to accept the highest bid was upheld, observed that merely by taking part in a public auction and giving the highest bid, would not vest the bidder with a right to get the auction confirmed in his favor. The relevant observations of Indian Supreme Court were as follows:-- "This Court in Trilochan Mishra v. State of Orissa (1971) 3 SCC 153: (AIR 1971 SC 733), State of Uttar Pradesh v. Vijay Bahadur Singh (1982) 2 SCC 365: (AIR 1982 SC 1234) and State of Orissa v.
Harinarayan Jaiswa l (1972) 3 SCR 784: (AIR 1972 SC 1816) held that the Government is under no obligation to accept the highest bid and that no rights accrue to the bidder merely because his bid happened to be the highest. The Court also observed that the Government had the right, for good and sufficient reason, not to accept the highest bid but even to prefer a tenderer other than the highest bidder. In Vijay Bahadur Singh's case (AIR 1982 SC 1234) the Court further observed that the power conferred on the Government by the Act to refuse to accept inadequacy of bid only. There may be variety of other good and sufficient reasons to reject the same. The appellant has no grievance that even though his case was the highest bid, the same was not accepted nor Mr. Sortable on his behalf contends that the highest bid of the appellant was rejected on grounds which are either the highest bid, cannot be confined to irrelevant or extraneous. This aspect, therefore, need not detain us anymore."
14. We are, therefore, of the view that by merely participating in the auction and giving the highest bid the appellants did not acquire any vested right to get their bid accepted, as the highest bid in the auction was subject to the approval of Zila Council which at the relevant time was not functioning and the highest bid sent to the Government for approval was rejected by the Minister, L.G. For cogent reasons directing re-auction of the lease right.
' It is not disputed before us that the appellants at no stage offered to raise their bid to match the bids offered by respondents Nos.3 and 4 or the bid given by respondent No,7. At the subsequent re- auction. It was, therefore, not a case where the Minister, L.G. After rejecting the bid of appellants had surreptitiously accepted higher bid of another person without giving any opportunity to appellants to raise their bid to match the higher bid. The order of re-auction of the lease rights to collect goods exit tax passed by the Minister, L.G. After rejecting the bid of appellants, therefore, did not violate any principle of natural justice as no vested right accrued to the appellants by merely participating in the auction and opportunity to giving the highest bid. The orders of re-auction allowed equal all including the appellants.
15. We are inclined to hold that where the Government or a public functionary disposes of property or right in the property through a public auction and the bid offered in such auction is subject to approval of the Government or authority authorized by the Government then such authority may reject the highest bid on the ground of inadequacy of the consideration or for any other good and sufficient reason which may satisfy the test of reasonableness and public interest. However, where the highest bid which was accepted at the auction is subsequently rejected by the Government or the authority who has the final say in the matter accepted any other bid surreptitiously without giving any opportunity to the highest bidder' to raise his bid to match other higher bid offered privately and received by such authority, then such an auction would be volatile of the principles of natural justice and the fair play as the Government or other functionaries engaged in distribution of State largesse are expected to act fairly and equitably. However, in a case where the highest bid is rejected and a re-auction is ordered which afforded equal opportunity to the person whose bid has been rejected it cannot be said that any principle of natural justice has been violated. We would like to quote here another very instructive passage from the above Indian Supreme Court case which highlighted the responsibilities of Government while dealing with the public properties.
It reads as follows:- "12. Let us put into focus the clearly demarcated approach that distinguishes the use and disposal of private property and socialist property. Owner of private property may deal with it in any manner he likes without causing injury to any one else. But the socialist or if that word is jarring to some, the community or further the public property has to be dealt with for public purpose and in public interest. The marked difference lies in this that while the owner of private property may have a number of considerations which may permit him to dispose of his property for a song. On the other hand, disposal of public property partakes the character of a trust in that in its disposal there should be nothing hanky panky and that it must be done at the best price so that larger revenue coming into the coffers of the State administration would serve public purpose viz. The welfare State may by able to expand its beneficent activities by the availability of larger funds. This is subject to one important limitation that socialist property may be disposed at a price lower than the market price or even for a token price to achieve some defined constitutionally recognized public ' purpose, one such being to-achieve the goals set out in Part IV of the Constitution. But where disposal is for augmentation of revenue and nothing else, the State is under an obligation to secure the best market price available in a market economy. An owner of private property need not auction it nor is he bound to dispose it of at a current market price. Factors such as personal attachment, or affinity, kinship, empathy, religious sentiment or limiting the choice to whom he may be willing to sell, may permit him to sell the property at a song and without demur. A welfare State as the owner of the public property has no such freedom while disposing of the public property.. A largest number more so when it proclaims to be a socialist State dedicated to eradication of poverty. All its attempt must be to obtain the best available price while disposing of its property because the greater the revenue, the welfare activities will get a fillip and shot in the arm. Financial constraint may weaken the tempo of activities. Such an approach serves the larger public purpose of expanding welfare activities primarily for which the Constitution envisages the setting up of welfare State. In this connection we may profitably refer to Ramana Dayaram Shetty v. The International Airport Authority of India (1979) 3 SCR 1014: (AIR 1979 SC 1628) in which Bhagwati, J.
Speaking for the. Court observed (at pp. 1637-38):-- ' It must, therefore, be taken to be the law that where the Government is dealing with the public, whether by way of giving jobs or entering into contracts or issuing quotas or licenses or granting other forms of largess, the Government, cannot act arbitrarily at its sweet will and, like a private individual, deal with any person it pleases, but its action must be in conformity with standard or norms which is not arbitrary, irrational or irrelevant. The power or discretion of the Government in the matter of grant of largesse .Including award of jobs, contracts, quotas, licenses, etc., muss bi confined and structured by rational, relevant and non-disc minatory standard of norm. And if the Government departs from such standard or norm in any particular case or cases,- the action of the ,Government would be liable to be struck down, unless it can *shown by the Government that the departure was not arbitrary, but was based on some valid principle which in itself was not irrational, unreasonable or discriminatory.'
' At another place it was observed that the Government must act in public interest, it cannot act arbitrarily or without reason and if it does so, its action would be liable to be invalidated. It was further observed that the object of holding the auction is generally to raise the highest revenue.
' The Government is entitled to reject the highest bid if it thought that the price offered was inadequate. But after rejecting the offer, it is obligatory upon the Government to act fairly and at any rate it cannot act arbitrarily. Following this line of thought, in Kasturi Lal Lakshini Reddy v. State of Jammu & Kashmir (1980) 3 SCR 1338: (AIR 1980 SC 1992) while upholding the order of the Government of Jammu & Kashmir, dated April 27, 1979 allotting to the second respondents 10 to 12 lacs blazes annually for extraction of resin from the inaccessible char forests in Pooch, Resay and Remand Divisions of the State for a period of 10 years on the terms and conditions set out in the order, observed as under (at p.2000):- ' Where any Government action fails to satisfy the test of reasonableness and public interest discussed above and is found to be wanting in the quality of reasonableness or lacking in the element of public interest, it would be liable to be struck down as invalid. It must follow as a necessary corollary from this proposition that the Government cannot act in a manner which would benefit a private party at the. Cost of the State; such an action would be both unreasonable and contrary to public interest. The Government, therefore, cannot for example give a contract or sell or lease out its property for a consideration less than the highest that can be obtained for it, unless of course' there are other considerations which render it reasonable and in public interest to do so." (Emphasis supplied).
' At one stage, it was observed that the Government is not free like an ordinary individual, in selecting recipient for its largesse and it cannot choose to deal with any person it pleases in its absolute and unfettered discretion. The law is now well-settled that the Government need not deal with anyone, but if it does so, it must do so fairly and without discretion and without unfair procedure. Let it be made distinctly clear that respondent No,4 was not selected for any special purpose or to satisfy any Directive Principles of State Policy. He surreptitiously ingratiated himself by a back-door entry giving a minor raise in the bid and in the process usurped the most undeserved benefit which was exposed to the hilt in the Court. Only a blind can refuse to perceive it."
' The above-quoted consideration, in our view, equally applied to the auction held in the present case as the object of putting the contract for collection of goods exit tax to auction was to augment the revenue which was to be used for public purposes. The fact that on re-auction of the lease rights respondent No,7 offered a sum of over rupee's four corers, for the leak period of only 7 months as against the appellants' bid of lease period 2,47,00,000 for a lee period of 12 months is enough to show that the order of re-auction in the case was eminently a just and proper order passed by the learned Judge in Chambers. Apart from it, the subsequent auction held in favor of respondent No,7 was not made subject to the result of the appeal before this Court and as such respondent No,7 could not be deprived of his rights now. We, therefore, do not find any reason to interfere with the impugned order passed by the High Court. The appeal is, accordingly, dismissed but in the circumstances of the case we will make no order as to costs.