1. By this application, the plaintiff seeks permission for withdrawal of this suit.
2. Before passing of any orders on the application, Mr. Faisal Kamal tiled a statement for withdrawal of this suit on 6-11-2002 as follows:-- "The undersigned counsel submits that on the instructions of the plaintiffs above-named, the undersigned counsel does not press the present suit and withdraws the same."
3. Mr. Faisal Kamal, counsel for the plaintiff. stressed that it is the right of the plaintiff to withdraw the suit if he is not interested to pursue the same to seek the remedy that was no longer necessary, as explained in the application.
4. Now, Mr. Faisal Kamal states that he does not press the application (C.M.A. No,7185 of 2002), that qualified the withdrawal of the suit with reasons for the withdrawal and would seek withdrawal of the suit simpliciter on the basis of the aforesaid unconditional statement, dated 16-11-2002.
5. The application as well as the statement were opposed by Miss Rizwana Ismail, counsel for defendant No,2. She has filed objections to the statement and also advanced arguments.
6. Her main contention is that a Division Bench of this Court, while disposing of H.C.A. No,347 of 2000 alongwith Constitutional Petition No,500 of 1998, tiled by Shehri and others, has ordered that the questions raised by Shehri (defendant No,2 herein) and others, in the said Constitutional petition, be decided in this suit. They intend to pursue their case and have no intention to give up their objections. She referred to paragraph 28 of the judgment, dated 13-8-2002, in C.P. No,D-500 of 1998, and H.C.A. No,374 of 2002, which reads as under:-- "28. We have already stated above that the questions raised by Shehri and others in C.P. No,D-500 of 1998 and Peace Development in Suit No,1793 of 1999 involve disputed questions of facts and law.
7. It is well established that the disputed questions of facts cannot be decided in a Constitution petition tiled under Article 199 of the Constitution. The questions of facts raised by the petitioners in C.P. No,D-500 of 1998 can, however, be decided in Suit No,1793 of 1999 which has already been revived. The Constitution petition is, however, accordingly, dismissed subject to the terms and - conditions stated below."
8. She also referred to the following direction given in the said judgment:-- "We order that Suit No,1793 of 1999 shall now be proceeded as follows:-- ................ ..................
9. Shehri and all others shall have the right to file in the instant suit all documents and take all legal/factual pleas, which they had taken in C.P. No,D-500 of 1998. All the pleas taken in Suit No,374 of 1998 (Peace Developer v. KBCA) shall be available to both parties, notwithstanding the withdrawal of the said suit on 6-11-2000."
10. In addition, her contention is that the plan as approved in October, 2002, is covered by Regulation 1.5 of the Karachi Building and Town Planning Regulations, 2002,. which now holds the field, and as such the same cannot be made basis for withdrawal of the suit. She also contended that since public interest is involved in this plaint, therefore, it cannot be allowed to be withdrawn unconditionally. In support of her contentions, she has placed reliance on the following cases:--
(1) Messrs Hindustan Sanitary and Drainage Works v. Shabbir Burhani and others PLD 1992 Kar. 21;
(2) B. Z. Kaikaus v. Federal Government of Pakistan and others PLD 1982 SC 254; (3) Inayat and another v. KBCA 1997 CLC 2039; (4) Haji Abdul Rashid Sowdagar v. S.M. Lalita Roy-and others PLD 1959 SC (Pak.) 287; (5) Asrnan Vaman Yadav and others v. Gappat Tukaram and another AIR 1938 Bombay 443 and (6) Kadar Nath and others v. Chandra Kiran and others. AIR 1962 All. 263.
11. The case of Hindustan Sanitary (supra), elaborated the conditions applicable to the exercise of the right available to the plaintiff for moving an application under Order XXIII, Rule 1, C.P.C. seeking withdrawal of suit. But, thereafter, the learned Single Judge held as under:-- "However, this right of the plaintiff is subject to a check where rights are created in the suit in favour of the defendants as has been held in the case cited by the learned counsel for the defendants. In case of Sirajuddin v, Muhammad Abdul Rauf and others PLD 1977 Kar. 33, Zafar Hussain Mirza, J., as his Lordship then was, held:-- "The only question that now falls for determination is whether the plaintiff has the absolute right to terminate the proceedings by unconditionally withdrawing the suit. I have already stated that normally the plaintiff who wishes to withdraw the suit cannot be forced by the Court to prosecute the proceedings which he does not wish to continue. In exceptional circumstances, however, the Court has the discretion to refuse the termination of the proceedings in cases where the defendant has acquired valuable rights...."
12. The learned Judge, then, held as under:-- As observed by the then Chief Justice of Lahore High Court, there can be no reasons to compel an unwilling plaintiff to pursue his suit against his wishes and will. Of course, this will not apply to the case where the independent rights, enforceable at law, have been created in favour of the other parties....
13. In the case of Inayat and others (supra), the facts were that some restraining orders were passed against the plaintiff and to circumvent the said restraining orders, the plaintiff filed an application for unconditional withdrawal of the suit. Following passage from the Report is relevant, which is reproduced below:-- "It may be observed that while it is the right of a plaintiff to withdraw the proceedings unconditionally at any stage, if the Court finds that the motion for withdrawal is tainted with mala fides, the same can be declined or the plaintiff can be put to terms. Moreover, in the cases like the present one, where public interest is also involved, withdrawal, even if unconditional, cannot be permitted if the circumstances so require. However, the interveners having already invoked jurisdiction under Article 199 of the Constitution, no useful purpose shall be served in continuing the present proceedings which may also result in multiplicity of the proceedings..."
14. Although, in view of the observations made in the last part of the quoted passage, the application for withdrawal was allowed but it is clarified that the application was allowed only due to the fact that the defendants/intervenors have already invoked the jurisdiction of this Court under Article 199 of the Constitution. In the case in hand, the position is converse. On the ground of institution of the present suit. the petition tiled by the defendant No,2 was dismissed and the petitioners were allowed to raise the questions, involved in the petition, in this suit. Now, if the plaint is allowed to be withdrawn, it will amount to force an unwilling party to relinquish its rights.
15. In the case of Asman Vaman Yadav and others (supra), also it was held that "the correct rule is that the appellant is entitled as of right to withdraw his appeal, provided that the respondent has not acquired any interest thereunder".
16. In my opinion, after the passing of the judgment in Constitution Petition No, 500 of 1998, the defendant No,2 has acquired an interest in this suit to the extent enunciated in the judgment, dated 13-8-2002 in Constitution Petition No,500 of 1998 and H.C.A. No,347 of 2000. Thus, though as a rule, under the provisions of Order XXII, rule 1, C.P.C. a plaintiff can withdraw his suit conditionally, but there are exceptions to this rule, as discussed above, in which the Court can refuse such withdrawal. The withdrawal of this suit, at this stage, would deprive the defendants' from proceeding in pursuance to the orders of the Division Bench, dated 13-8-2002, already reproduced above. After the order in appeal, as all the facts contended and pleas raised by both the parties have now merged in the present suit, if either of the parties is willing to relinquish its claim, it is at liberty to do so by not pressing the specific issue.
17. In view of the above, C.M.A. No,7184 of 2002 is dismissed as not pressed and the statement filed by Mr. Faisal Kamal is also disposed of in terms of the above order.