MUHAMMAD ROSHAN ESSANI, J.--- The petitioners filed petition to set aside the order dated 8.8.2002, passed by the learned IVth Additional District Judge, Karachi (West) while dismissing Civil Revision No. 17/2002 and order dated 30.3.2002, passed by the 1st Senior Civil Judge, Karachi (West) in Suit No. 38/1997, allowing the respondent to withdraw the suit with right to file fresh suit.
2. Brief facts of the case are that respondents Nos. 1 and 3 filed suit against respondents Nos. 6 to 9, petitioner No. 5 and father of petitioners Nos. 2 to 4 for declaration that the Deed of Relinquishment registered by Anwar H. Pirbhai, predecessor-in- interest of petitioners Nos. 2 to 4, on 17.5.1979 in the office of Sub-Registrar, Lyari Zone, Karachi, showing himself to be Sajjadanasheen of Khanquah is void and of no legal effect and further seeking declaration that he was not Sajjadanasheen or otherwise not competent to hold office of Sajjadanasheen of Khanquah with further consequential reliefs. The predecessor-in-interest of the petitioners Nos. 2 to 4 expired on 30.12.1994 and respondent No. 1 filed an application under Order XXII, Rule 4, CPC for joining petitioners Nos. 2 to 4 as parties to the proceedings being the legal heirs of defendant No. 1. The petitioner No. I filed an application under Order I, Rule 10, CPC for joining him as one of the defendants. The respondent No. 1 filed amended title in compliance of the order passed by the Additional Registrar (OS). The petitioners Nos. 2 to 4 filed objections to said amendment and alleged that the suit has been abated after the death of their predecessor-in- interest as the suit was filed for the office of Sajjadanasheen. The learned Additional Registrar (OS) referred the application for consideration of the Court, however, before any order can be passed by the Court, matter was transferred to District Court in view of change in pecuniary jurisdiction and the said application, i.e. Application under Order XXII, Rule 4, CPC as well as application under Order 1, Rule 10, CPC remained pending or adjudication. The respondent filed an application under order XXIII, Rule 1, CPC seeking relief to allow withdrawal of he suit with the permission to file fresh on the same cause of action. In the application it is stated that necessary mendments are required to be made in the light of decision ken by the Hon'ble superior Courts. The learned Senior Civil judge, Karachi (West) passed the following order on the application under Order XXIII, Rule 1, CPC, filed by the respondents Nos. 1 and 3:- "Learned counsel for the plaintiffs Nos. 1, and 3 filed application under Order 23, Rule 1, CPC praying therein to allow withdrawal of the suit on technical grounds with permission to file a fresh. The plaintiff No. 2 is absent right from beginning and is not contesting matter, although she is real sister of plaintiff No. 1.
I have gone through the averments of the plaint as well as pleadings and have also come to the conclusion that there are formal defects in the plaint, whereas it is right of the plaintiff to withdraw the suit at any moment at any stage against one or all the defendants, hence in the above circumstances suit being withdrawn stands dismissed with permission to file a fresh".
The order was passed in presence of legal heirs of defendant No. 1, viz, petitioners Nos. 2 to 4. The petitioners filed Civil Revision under Section 115, CPC against the said order challenging the order passed by the Civil Judge granting permission to withdraw the suit with right to file the fresh only to the extent of granting permission to file fresh suit. The learned IVth Additional District Judge, Karachi (West) dismissed the Revision Application.
2. The petitioners through this petition assailed these two orders.
3. Heard Mr. M. Ismail Kassim, learned counsel for th petitioners, and Mr. Faizul Hassan Shah, learned counsel fo respondents Nos. l and 2.
4. The learned counsel for the petitioners mainl argued that the learned Trial Court as well as revisional Could committed error of law in granting permission to file the fresH suit while accepting the application for withdrawal of the sui He further argued that permission to file the fresh suit can b granted only in case where Court is satisfied that a suit mus be withdrawn by the reason of some formal defect of their are some sufficient grounds in allowing the plaintiff to institutION a fresh suit for the same cause of action.
5. On the other hand, the learned counsel for th respondents Nos. 1 and 2 argued that as the petitioners hav no locus standi to file the present petition, they are not joine as party in the proceedings till the date of withdrawal of t suit. The learned counsel next argued that the petitioner N 1 filed an application under Order 1, Rule 10, CPC to joined as one of the defendants and the said application w pending for adjudication on the date when respondents withdrew the suit and as such the petitioners have no right to question the order of granting permission to file the fresh suit, likewise he further argued that the petitioners Nos. 2 to 4 opposed the request of the respondents to join them that the legal heirs of defendant No. 1 on the ground that the dispute pertains to Sajjadanasheen and after the death of their predecessor-in-interest the suit stood abated.
6. We have gone through the record and also considered the respective arguments of the learned counsel for the parties.
7. It appears that the petitioner No. 1 has not been joined as a party in the proceedings and as such in our opinion petitioner No. 1 cannot question in the circumstances of this case the impugned order whereby the learned Court granted permission to withdraw the suit with a right to file the fresh. As regards petitioners Nos. 2 to 4, they themselves took the stand that after the death of defendant No. 1, the suit stood abated, it does not lie in their mouth now to question the order of withdrawal of the suit to file the fresh. The Advocate for the petitioner failed to point out any illegality or irregularity in the impugned orders to call for interference in the orders passed by the learned Additional District Judge and Trial Court in exercise of Constitutional jurisdiction under Article 199 of the Constitution.
For the foregoing reasons the petition is dismissed in limine with no order as to costs.
Consequent upon the dismissal of the petition, the listed applications have become infructuous which are also dismissed as having become infructuous.