' MUHAMMAD YUNUS SURAKHVI, J.--The above titled both the petitions for leave to appeal are directed against a common order recorded by the High Court on 10-1-2002, whereby the writ petitions filed by the respondents were admitted to regular hearing. The petitioner in the above titled petitions for leave to appeal challenged the admission order recorded by the High Court.
Lengthy arguments were addressed from both sides for grant of petitions for leave to appeal as well on the applications for grant of stay order and after the conclusion of arguments the cases were posted to 16-4-2002 for judgment.
2. Although the judgments in both the cases were written by us but on 9-4-2002 two separate applications were moved by the petitioner herein for withdrawal of petitions for leave to appeal. In the said applications no ground whatsoever was mentioned regarding the withdrawal of petitions and the applications for grant of stay order. As the date fixed for the judgment was 16-4-2002, therefore, we issued notices to the respondents for filing their objections, if any, who duly submitted their objections and objected to the withdrawal of petitions. It was contended by Mr. Mujahid Hussain Naqvi, respondent No.1, as well as counsel for other respondents in the other petition, that the petitions for leave to appeal cannot be withdrawn as the arguments have been concluded and the only provision in the rules is that the petitions be sent back to the Registrar who will determine the question of costs as he has obtained a fee of Rs.1,20,000 from the respondents who belong to Mirpur and who for the purpose of engaging him came at Muzaffarabad and stayed here for some days and duly engaged him as counsel. Afterwards they have also been coming to Muzaffarabad to know abou the various dates in the petitions and have been consulting and meeting him. In this view of the matter, he contended that so far as the petition titled Justice (Rtd.) Basharat Ahmad Shaikh v. Ch. Muhammad Ashraf and others is concerned, if at all the same is allowed to be withdrawn, it may be ,:done on payment of costs of Rs.1,20,000 to his clients. In the other case he submitted that he being an Advocate of the Supreme Court has undergone so many hardships and financial loss due to the filing of the petition for leave to appeal against him and substantial costs may be awarded to him in the other petition.
3. Ch. Muhammad Ibrahim Zia, the learned counsel for the petitioner in both he petitions, while controverting the arguments of Mr. Mujahid Hussain Naqvi, submitted that the petitions for leave to appeal can be withdrawn at any time but when he was confronted with a situation that when the petitions for leave to appeal after hearing the arguments are fixed for judgment whether the same could be withdrawn without the payment of costs to the opposite side, he failed to make reference to any of the provisions of the rules. However, he contended that under Order XVII, rule 9 of the Supreme Court Rules, the petitions for leave to appeal can be withdrawn at any time without awarding any costs.
4. After hearing the respective contentions of the learned counsel for the parties and perusing the record, it may be stated that Order XVII, rule 9 of the Supreme Court Rules relied upon from both the sides reads as under:-- "A petitioner who desires to withdraw his petition shall give notice in writing to that effect to the Registrar. Where the petition is opposed, the opponent shall, subject to any agreement between the parties to the contrary, be entitled to apply to the Court for his costs, but where the petition is unopposed, or where, in the case of an opposed petition, the parties have come to an agreement as to the costs of the petition, the petition may, if the Court thinks fit, be disposed of in the same way mutates mutandis as a consent petition under the provisions of the last preceding rule."
' The bare reading of the above rule provides that if the parties by a mutual consent agree to the withdrawal of the petition, the same can be withdrawn without awarding any costs but if the other party opposes the withdrawal of petition, the same cannot be withdrawn without awarding the costs.
5. So far as the petition against the respondents, Chaudhry Muhammad Ashraf and others, is concerned, the claim of the counsel for the respondents is that he has received a fee of Rs.1,20,000 from them as they had been coming from Mirpur to engage him and especially after hearing the arguments in the petition the same cannot be withdrawn without awarding the costs of at least Rs.1,20,000 to him. There are authorities of this Court that after hearing the arguments in the appeals, normally the appeals cannot be withdrawn but as in the present case the petitions for leave to appeal are being withdrawn by the petitioner, therefore, we are taking a lenient view of it and we have decided to allow the withdrawal of both the petitions although no ground whatsoever has been mentioned in the applications for withdrawal of petitions.
6. So far as the petition against respondents, Chaudhry Muhammad Ashraf and others, is concerned, we agree with the contention of the learned counsel for the respondents that they might have incurred substantial expenses in the journey from Mirpur to Muzaffarabad and Muzaffarabad to Mirpur and for engaging a counsel but we cannot award the costs of Rs.1,20,000 to the counsel for the respondents as he did not file any certificate at the time of filing his caveat in both the petitions that he charged a fee of Rs.1,20,000 from the respondents.
7. In the interest of substantial justice, we allow the petition for leave to appeal titled Justice (Rtd.)
Basharat Ahmad Shaikh v. Ch. Muhammad Ashraf and others to be withdrawn on payment of costs of Rs.4,000 to respondents. However, in the other petition titled Justice (Rtd.) Basharat Ahmad Shaikh v. Mujahid Hussain Naqvi and others the same is allowed to be withdrawn on payment of costs of Rs.1,000.
' In the aforesaid view of the matter, both the petitions for leave to appeal and the applications for grant of stay order are hereby allowed to be withdrawn in the terms indicated above. These are our detailed reasons for withdrawal of the cases in continuation of our short order dated 12-4-2002.