The petitioner has filed this application for review of judgment dated 14-11-2000 passed in Writ Petition No.2749 of 1987 Ghulam Rasool etc. v. Shahana etc., on the following grounds:----- The aforesaid writ petition was fixed alongwith connected Writ Petition No.3861 of 1987 and Writ Petition No.2576 of 1988 on 14-11-2000. The other writ petitions could not be taken up as counsel in the aforesaid writ petitions were busy before other Benches of this Court and cases were kept in waiting. Mr. Seerat Hussain Naqvi, Advocate who had not appeared in the aforesaid writ petition raised preliminary objection qua the maintainability of the writ petition filed by applicant. The petitioner's counsel got adjournment to cite some case law but he did not enter appearance thereafter as connected matters were adjourned, therefore impugned judgment is hit by principle of natural justice. The petitioner filed Writ Petition No.5398 of 1986 which was disposed of vide order, dated 26-1-1987 and thereafter petitioner filed Writ Petition No.2749 of 1987 which was admitted to regular hearing. Writ Petition No.5398 of 1986 was not finally-decided on merits, therefore, principle of res judicata is not attracted. The judgment of this Court is not in accordance with law laid down by superior Courts in the following judgments:----- (1999 MLD 3384) Mushtaq Hussain and other's case,-- (1970 SCMR 141) Karim Gull and another's case, (PLD 1990 SC 596) Maula Bakhsli's case, (1998 CLC 213) Raja Bashir Ahmed Khan's case and (PLD 1994 SC 598) Shabbir Ahmed's case.
2. The learned counsel of respondents Nos. l to 8 submits that judgments cited by the learned counsel of the petitioners is distinguished on facts and law. He further submitted that contention of the learned counsel of the petitioners that I did not represent the respondents has no force.
3. I have given my anxious consideration to the contentions of the learned counsel for the parties and perused the record myself. It is admitted fact that petitioners filed Writ, Petition No.5398 of 1986 qua the same subject-matter and relief which was disposed of vide order, dated 26-1-1987 in the following terms:-- "Learned counsel for the petitioners does not press this petition. It is accordingly disposed of."
The second writ petition qua the same subject-matter and relief is maintainable or not by virtue of Order 23, rule 1, C.P.C. Read with Order 2, rule 2 and section 11, C.P.C. It is better and appropriate to reproduce the operative parts of the judgments cited by the learned counsel for the petitioners for the purpose to resolve the present controversy whether the judgments cited by the learned counsel of the petitioners are applicable in the present case or not.
(1) 1999 MLD 3384 Mushtaq Hussain's case.
The relevant observation is as follows:-- "The contention of the learned counsel for the appellants that the previous suit filed by the respondents was withdrawn simpliciter, therefore, principle of constructive res judicata is attracted has also no force as the appellants have not raised this plea in, their written statement as well as in the memorandum of appeal before the 1 Appellate Court."
(2)1970 SCMR 141 Karim Gul's case.
The relevant observation is as under:-- "It appears to us that the view taken by the High Court finds support from a decision of this Court in the case of Haji Abdur Rashid Sowdegar v. S.M. Lalita Roy (PLD 1959 SC (Pak) 281) where Munir, C.J.
Pointed out the difference between sub-rules (1) and (2) of rule 1 of Order XXIII of the Code of Civil Procedure and opined that under sub-rule (2) 'the withdrawal is complete the moment the order to that effect is recorded and the right to bring a fresh suit follows from the withdrawal so permitted'.
To such an order of withdrawal the provisions of sub-rule (3), it was further pointed out, do not apply, they being restricted to a withdrawal under sub-rule (1) of rule I of Order XXIII."
(3) PLD 1990 SC 596 Humayun Saifullah Khan's case.
The relevant observation is as follows:-- "...That the application made by the petitioner/plaintiff on 11-7-1988 for withdrawal and refiling of suit stands allowed."
(4) PLD 1994 SC 598 Shabbir Ahmad's case.
This judgment is not relevant to resolve the present controversy as the aforesaid Order 23, rule 1 was not discussed. The aforesaid operative parts of the judgments relied upon by the learned counsel of the petitioners do not support the contention of the learned counsel of the petitioners. It is settled proposition of law that provisions of C.P.C. Are applicable in the Constitutional proceedings as per principle laid down by the Hon'ble Supreme Court in Hussain Bakhsh's case PLD 1970 SC 1. The object of rule 1 of Order 23 is to prevent a plaintiff from filing a fresh suit after having failed to conduct the first one with care and diligence. In arriving to this conclusion I am fortified by the reported judgment of the Privy Council AIR 1914 P.C. 249. It is settled principle of law in view of the aforesaid provisions of law that plaintiff/petitioner has the right to withdraw a suit whenever he desires but cannot file a fresh suit on the same subject-matter.
1.989 CLC 2393 Jewan's case, 1990 CLC 1334 M/s. Meharun Nisa's case, 1990 CLC 19 Mst. Mahroof Jan's case and 1990 CLC 220 Waheed Ahmad's case.st
4. I am fortified in my view by Haji Nawab Din v. Qazi Abdul Saeed (1973 SCMR 143). It has been observed in that case:-- "We are not impressed by this contention because it really amounts to challenging correctness of the view taken by this Court in the order now sought to be reviewed, and this cannot be a ground for review."
This view was also accepted in Muhammad Zafar Ullah Khan v. Muhammad Khan and another"
(1975 SCMR 473). It has been observed in that case:-- "We have noticed these contentions but we do not propose to deal with them as a review cannot be made a pretext for re-hearing of the whole case. We are not prepare to re-open the question of interpretation of section 104 of National and Provincial Assembly (Elections) Act, 1964."
This view was also accepted in "Mst. Shamim Akhtar v. Syed A.I Hussain and others" (1975 SCMR page 16). It. Has been observed in that case:-- "This may be so, but this can hardly furnish a ground for review. Putting it bluntly, it amounts to saying that this Court had erred in applying the principles of Ghulam Mohi-ud-Din's case in the facts and circumstances of the present appeal. This may have been perfectly good ground for an appeal, if any appeal lay, but can it be a valid ground for review? We think not."
5. This petition for review is accordingly dismissed.