' SHAHZAD AKBAR KHAN, J.---By way of this Constitutional petition Dr. Muhammad Raza has called in question the appointment of Dr. Nasir Orakzai (respondent No,3) as Assistant Professor Urology in Ayub Medical Complex, 'Abbottabad through order, dated 28-5-1998 issued by respondent No,1 i,e, Principal Ayub Medical Complex, Abbottabad with approval of Health Department vide letter No,SOCC (HD) 1-3-1998, dated,27-5-1998.
2. The grievances which are ventilated by the petitioner and made grounds 'of this Constitutional petition precisely are that the petitioner is more qualified on academic premises and also experiencewise vis-a-vis respondent No,3 and as such the appointment of the said respondent by respondents Nos. 1, 2 and 4 as Assistant Professor Urology is in violation of the rules/regulations on the subject.
3. It may be recalled that on the same gravamen the petitioner had earlier filed a civil suit on 28-5- 1998 in the Court of Senior Civil Judge, Abbottabad. In the said case notice was issued to the respondents-defendants for 27-6-1998. However, on 19-6-1998 an application for the withdrawal of suit was submitted by the petitioner. The said application of the petitioner indicates that the suit was posted to 27-6-1998 for arguments on application under Order YII, Rule 11, C.P.C. On the same day the learned trial Court without giving notice to the opposite parties, on recoding the statement of the petitioner the case was allowed to be withdrawn with permission to file a fresh suit on the basis of the same cause of 'action on payment of Rs,100 as costs. The statement of the petitioner was to the following effect:- "Statement of Dr. Raza Muhammad Khan, plaintiff on oath.
' Stated that due to some formal defects in the plaint I want to withdraw from my suit, however, I may be permitted to bring a fresh suit on the basis of same cause of action if accrued to me.
' RO&AC ' 19-6-1998 (Sd.) (Khalid Khalil Khan), SCJ, Abbottabad.
(Sd.) Dr. Raza Muhammad Khan plaintiff."
4. After a cost ridden withdrawal of the suit to file a fresh one the petitioner instead of filing a suit chose to file the instant Constitutional, petition for seeking the same remedy that was the subject- matter of his civil suit. On 15-9-1998 on the request of petitioner this Court accorded permission to amend the writ petition for impleading the Board of Governors (respondent No,4). The requisite amendment was accordingly made.
5. The matter was heard by a learned Division Bench of this Court and on 2-2-1999 the writ petition of the petitioner was allowed. The judgment of this Court, dated 2-2-1999 was challenged by respondents Nos.1 and 3 before the Honourable Supreme Court. The two appeals Nos.CA-218 of 1999 and CA-1341 of 1999 were decided by the Honourable Supreme Court vide judgment, dated 15- 3-2001.
Consequently the judgment of this Court was set aside and the case remitted for disposal afresh.
6. On 15-4-2004 on the opening of the case by Mr. Abdullah Jan Mirza, Advocate, learned counsel for the petitioner, the learned counsel for the respondents raised a preliminary objection about the maintainability of this writ petition. Thus the learned counsel for the petitioner requested for some time to prepare the case on the preliminary objection. The case was, therefore, adjourned for today.
7. Barrister Mian Gul Hassan Aurangzeb, learned counsel for respondent No,3 contended that the instant writ petition is not competent because on the written application of petitioner followed by his statement he was allowed to withdraw his suit with permission to file a fresh one on the payment of costs of Rs,100. The learned counsel contended that the withdrawal of the suit is governed by Order XXIII, rule 1 of the Civil Procedure Code which regulates the power of the Court on existence of the conditions that are specifically provided in clauses (a) and (b) of rule 1 under Order XXIII of C.P.C. Precisely his objections are (1) that the order of withdrawal of the suit, dated 19- 6-1998 having been passed in disregard of Order XXIII is void and nullity in the eye of law and could not be made basis for filing the instant Constitutional petition and (2) that before passing the order of withdrawal no notice to the respondents was given.
8. Elaborating his view point on his first objection the learned counsel contended that the learned trial Court could permit the petitioner to withdraw his suit only if it felt satisfied that the suit of the petitioner would fail by reason of some formal defect or that there are other sufficient grounds for allowing the plaintiff/petitioner to institute a fresh suit for the subject-matter of the suit on such terms as deemed fit. He contended by making reference to the order, dated 19-6-1998 that the learned lower Court failed to give any reasons about his satisfaction warranting the withdrawal of the suit and the consequential permission of filing a fresh suit. Reliance was placed on Town Committee Dipalpur v. Ahmad Din and 3 others PLD 1972 Lah. 290, Muhammad Yousaf and another v. Additional District Judge. Attock and others 1992 MLD 856, Dilbar Khan v. Said Akbar 1996 CLC 1178, Ch. Muhammad Ali and 3 others v. Sardar Muhammad Kazim Ziauddin Durrani and 2 others 1999 CLC Quetta 1437.
9. Dilating upon his second objection the learned counsel said that when the defendants were issued notice in the suit and the case was fixed for 27-6-1998 for arguments on the application under Order VII, rule 11, C.P.C. It was obligatory for the learned trial Court to have issued notice in the name of the respondents before passing any order of withdrawal of the suit. By not following such a procedure the order of withdrawal of the suit with permission to file a fresh one was to the prejudice of the respondents and as such the said order becomes illegal. Reliance was placed on Sonokhan Yar Muhammad and another v. Mst. Bachi and others, AIR (31) 1944 Sindh 192, Abdul Malik v. Muhammad Urfan and another 1989 CLC 2363 and Mrs. Rafiqa Iqbal Ahmad and another v.
Muhammad Ali Hyder 1984 CLC 2886. The learned counsel augmenting his preliminary objections has addedly argued that the petitioner has not only skipped over the trial Court by ignoring the order, dated 19-6-1998 bnt has also failed to deposit the costs imposed upon him and the said condition was an integral part of the impugned order of the learned trial Court.
10. On the other hand, Mr. Abdullah Jan Mirza Advocate, the learned counsel for the petitioner in order to encounter the preliminary objections has argued that the provisions of Order XXIII, rule 1, C.P.C. Have no mandatory appearance and the learned lower Court was not legally obliged to give reasons for his permission to withdraw the suit. He contended that when the earned trial Court passed the order of withdrawal of the suit it implies that the Court was satisfied esoterically about the reasons warranting the permission to withdraw the suit and file a fresh one. He further contended that there was no compulsion for the petitioner to file afresh suit and at his convenience he could legitimately file this Constitutional petition as the filing of the suit was not an adequate remedy for the petitioner.
11. We have anxiously considered the rival submissions of the learned counsel for the parties and have avidly read the record. On the contentions of the learned counsel for respondent No,3 Order XXIII, rule 1 assumes great significance and as such the same is reproduced below:--- "1. Withdrawal of suit or abandonment of part of claim.---
(1) 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---
(1) 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 such of a claim.
(3)
(4) .
' In the judgments cited in support of the first preliminary objection almost similar point fell for the consideration and the same was resolved through the afore-mentioned judgments cited in support of the first objection. In PLD 1972 Lah. 290 it was observed as follows:--- "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 such part of a claim. The application is apparently couched in terms to bring it within the scope of clause (a) i,e,, that the suit must fail by reason of some formal defect, but the allegations in the petition for withdrawal do not show the formal defects nor is it clear that the formal defects if any one of such nature that the suit must fail. Even the order of the learned Civil Judge does not disclose that he was satisfied that there was any formal defect in the case for which reason the suit must fail. It is, therefore, apparent that the Civil Judge has acted illegally and with material irregularity in the exercise of his jurisdiction by passing an order of withdrawal of the suit with permission to file another suit without considering the above noted objections."
12. In 1992 MLD 856 it was held that Order XXIII, rule 1(2) is also applicable to the withdrawal of appeal with permission to file a fresh one. It was held that withdrawal of suit/appeal could only be allowed on the grounds mentioned in provision of Order XXIII, rule 1(2) Civil Procedure Code, 1908 and no others. It was elaborated that the order allowing conditional withdrawal must surface the reason for passing such an order so as to permit its successful scrutiny in higher forums for judging its legality as also its propriety. It was concluded that where permission to withdraw was given in absence of the required grounds mentioned in Order XXIII, rule 1(2), C.P.C. Such order was reduced to nullity and could be safely termed as an order without jurisdiction.
13. In 1996 CLC 1178 it was similarly held that suit can be allowed to be withdrawn with permission to file fresh suit on the same cause of action provided it was likely to be dismissed on basis of some formal defect having been noticed. In certain cases the formal defect is of the nature which can be rectified by making an amendment of pleadings instead of altogether withdrawal of the suit. It was held that withdrawal was not normally allowed to cover some serious negligence on the part of plaintiff and which should not be allowed to afford opportunity to plaintiff to commence fresh trial in order to avoid result of previous one on merits.
14, In 1999 CLC 1437 while dealing with the provisions of Order XXIII, rule 1 it was observed that the permission to withdraw suit could be given if it was shown that suit would fail by reason of some formal defect or that there existed sufficient grounds for allowing plaintiff to institute a fresh suit. It was also observed that Court has no general power to allow withdrawal of suit with liberty to institute a fresh one. This was considered to be a mandatory duty of the plaintiff to point out formal defects in a categoric manner leaving absolutely no doubt. Mere vague assertion would not be sufficient to constitute formal defect. Thus order of permission to withdraw a suit in absence of the grounds mentioned in the above referred rule of C.P.C. Was declared to be without jurisdiction.
15. Similarly, this Court in case of Abdul Malik 1989 CLC 2363 dealing with the imperativity of Order XXIII, rule 1 observed that withdrawal of the suit is permissible only when the Court is satisfied that the suit is most likely to fail by reason of some formal defect or where other sufficient grounds exist.
It was also held that the expression "on such terms as it thinks fit" contemplates an order after affording an opportunity of hearing to 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.
16. Qn the second objection with regard to the failure to give notice to the opposite party the judgment reported in AIR (31) 1944 Sindh 192 is relevant where it was observed that where the order under Order XXIII, rule I has been passed without notice to the defendants and the order is not supported on any grounds set forth by the Judge, it is vitiated on the ground of material irregularity. In 1984 CLC 2886 also it was held that an order permitting plaintiff to withdraw suit with liberty to institute a fresh one passed by the trial Court in absence of the defendants and without any notice to them would be an order in violation of the principles of natural. Justice and such order was set aside.
17. Similarly, in PLJ 1984 Karachi 313 the significance of notice to the opposite party was recognized by holding that order permitting plaintiff to withdraw suit with liberty to institute a fresh one passed by Civil Judge in absence of defendants and without notice to them was violative of the principles of natural justice and could not be sustained.
18. In view of the survey of case-law referred above and on the analysis of Order XXIII, rule 1, C.P.C.
And further by making reference to 17 CWN 862 Ajant Singh v. F.T. Christian we observe that it is an elementary rule of universal application and founded upon plainest principles of justice that a judicial order which possibly affect or prejudice any party cannot be made unless such party has been afforded an opportunity to be heard. This is merely an instance of the application of the maxim audi alteram partem. It is also a visible feature of this case that the learned trial Court has failed to give any reason for allowing withdrawal of the suit and according permission to bring a fresh suit on the same cause of action. Thus in the ultimate analysis on the aforementioned facts and circumstances and the interpreted position of Order XXIII, rule 1, C.P.C. We are obliged to hold that the order of the learned Senior Civil Judge, dated 19-6-1998 having been passed in sheer violation of the provision of law is not sustainable. The same is therefore, accordingly struck off. The outcome of the striking off the impugned order logically in our view is that the suit of the petitioner would be deemed pending before the trial Court and as such the learned trial Court would be legally required to proceed with the matter from the stage preceding the passage of the order of the withdrawal of the suit in case the petitioner wants to proceed with his suit. Needless to mention that the respondents would be at liberty to raise all legal and factual objections. This writ petition is, therefore, dismissed and the parties are left to bear their own costs.