INAYAT Versus K.B.C.A. , Naimur Rehman

ORDER

1. By order dated 4‑6‑1997 ad interim order was passed In presence of the learned counsel for the plaintiffs and the defendant in the following terms:‑

2. "The plaintiff, in the circumstances, can go ahead with construction upto ground plus one floor in accordance with the plan approved on 15‑5‑1997 provided the same is still valid. The learned counsel for the defendant submits that he will ascertain from the department if the revised proposed building plan has been approved or not and in case reply has not been sent m the plaintiff, the same shall be communicated in due course.

3. With the above clarification this application may now be put up for hearing after summer vacations."

4. On 22‑7‑1997 when the matter came up for hearing of the miscellaneous applications listed at serial Nos.l to 3 today, it was urged that the plaintiff was raising construction on the basis of the abovequoted order dated 4‑6‑1997 despite the fact that the building plan approved on 15‑5‑1995, had been cancelled by the defendant and the subject premises had been sealed. In the circumstances order of restraint in the following terms was passed:‑

5. "In the circumstances, while adjourning the matter to 30‑7‑1997, the plaintiffs are directed to refrain from raising any further construction or continuing with any other construction activity over the subject plot till the next date of hearing."

6. Today, Civil Miscellaneous Application No.4682 of 1997 has been put up by the office for hearing alongwith the three applications which had come up in Court on 22‑7‑1997. Through Civil Miscellaneous Application No‑4682 of 1997, the plaintiff seeks unconditional withdrawal of the suit under Order XXIII, Rule 1, C.P.C. Although notice of the application was not issued to the other side, the office has put up the application for hearing. Let the office explain the lapse on its part. Reverting back to the matter, Mr. Naimur Rehman, on behalf of the intervenors, submits that the application for unconditional withdrawal of the suit has evidently been filed with the mala fide intention of evading the effect of order of restraint passed on 22‑7‑1997. The learned counsel further submits that a Constitutional Petition No.D‑1279 of 1997 has been filed by the intervenors before this Court and despite report by the Nazir, who was appointed Commissioner in such proceedings, to the effect that unauthorised construction had been raised by the plaintiffs, interim order to restrain the plaintiffs from continuing with construction was not passed to enable the parties to approach this Court for appropriate orders in the circumstances of the case. Mr. Muhammad Iqbal Memon, on behalf of the defendants, submits that the order passed by this Court on 4‑7‑1997 had made it sufficiently clear that the defendants had not been restrained from taking action 'against unauthorised construction for the reason that the building plan approved on 15‑5‑1995 had already been cancelled. The apprehension expressed by the learned counsel for the intervenors to the effect that the plaintiffs have raised ‑ construction unauthorisedly by taking advantage of the injunction granted by this Court on 4‑6‑1997, in the circumstances, is unfounded.

7. The grievance of the intervenors can, in any event, be taken care despite grant of the application under Order XXIII, Rule 1, C.P.C. and such cannot come in the way of disposal of the present proceedings. The learned counsel for the plaintiff submits that the plaintiff can validly seek unconditional withdrawal of the proceedings at any time and such right cannot be curtailed. 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 intervenors 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. In the circumstances, the application under Order XXIII, Rule 1, C.P.C. being Civil Miscellaneous Application No.4682 of 1997 is allowed and the suit stands dismissed as withdrawn subject to payment of Rs.1,000 as cost. The amount of cost shall be deposited by the plaintiff with the Nazir of this Court within one week from today and after its deposit, shall be paid to the defendants without any further orders. As a result of disposal of the suit, the two applications filed by the intervenors and the application for interim injunction filed by the plaintiff are also dismissed having become infructuous. At the request of the learned counsel for the intervenors, it is, however, ordered that the directions contained in the order dated 22‑7‑1997 restraining the plaintiffs from raising any further construction or continuing with any other construction activity over the subject plot shall continue to be operative for 10 days from today. .

8. A.A./1‑20/K Order accordingly.