Haji MAQBOOL UR REHMAN KHAN And Others vs DEPUTY
This petition for leave to appeal challenges an order of the Peshawar High Court, which dismissed a review application filed by the petitioners against an earlier order allowing them to withdraw their writ petition with permission to file a fresh one, subject to the payment of costs. The High Court had permitted the withdrawal due to formal and technical defects in the original petition, relying on the principle that no error apparent on the face of the record existed to justify a review under the Code of Civil Procedure. The Supreme Court upheld the High Court's decision, noting that if the petitioners were aggrieved by the imposition of costs, they should have challenged that specific order or sought to amend their petition rather than withdrawing it conditionally. The Court further observed that since the petitioners had already filed a fresh writ petition pursuant to the High Court's order, there was no merit in their grievance. The Supreme Court affirmed that the High Court exercised its discretion appropriately in granting withdrawal on specific terms, and dismissed the petition for leave to appeal.
- Is a review application maintainable against an order allowing the withdrawal of a writ petition where no error apparent on the face of the record exists?
- Can a petitioner seek review of an order allowing the withdrawal of a writ petition on the ground of costs imposed as a condition for withdrawal?
- Does the High Court have the discretion to impose costs as a condition for granting permission to withdraw a writ petition with liberty to file a fresh one?
- Order XLVII Rule 1, Code of Civil Procedure 1908
- Section 114, Code of Civil Procedure 1908
ORDER
1. NAIMUDDIN, J.--Petitioners seek leave from the order of the Peshawar High Court, Circuit Bench, Abbottabad whereby their review application against the order dated 23-10-1988 by which the petitioners were allowed to withdraw the Writ Petition No.44 of 1987 and all the civil misc. Petitions pertaining thereto, filed by them, with permission to file fresh writ petition, if so advised, in respect of the same subject-matter on payment of cost in the sum of Rs.2,000 to the respondents. The reasons which weighed with the High Court in allowing the withdrawal of the petition were: "Since the writ petition is replete with formal and technical defects on account of which it is likely to fail this Court would accept C.M. 228 of 1988 and allow the writ petitioners to withdraw the writ petition............--- The learned Judge in the High Court relying on a judgment of this Court in Zulfiqar Ali Bhutto v. The State PLD 1979 SC 741 held there was no mistake or error apparent on the face of the record and the provisions of Rule 1 Order 47, C.P.C. Read with Section 114, C.P.C. Were not attracted.
2. We share the view of- the High Court. If the petitioners had any grievance against the award of cost, they should not have withdrawn the petition conditionally and should have applied for amendment of the petition to remove formal or technical defects or they should .Have sought relief in this Court against the order awarding cost, since there was no error apparent on the face of the record.
3. It is submitted by Dr.Basit, learned counsel for the petitioners that the ground for withdrawal of the writ petition was an order dated 15-8-1988, made by the Revenue. Secretary of the N.-W.F.P.
4. Government whereby he had rescinded his earlier order dated 10-12-1977. If the petitioners were aggrieved only by the order dated 15-8-1988, they should not have sought permission to withdraw the Writ Petition No.44 of 1987, with permission to file a fresh petition as the order dated 15-8-1988 was passed during the pendency of the said writ petition and it could be challenged in fresh writ petition. But, if the subsequent order dated 15-8-1988 was sought to be challenged alongwith the earlier cause of action and relief claimed in Writ Petition No.44 of 1987, then the withdrawal of earlier petition with permission to file fresh petition was necessary and then it was within the discretion of the High Court to grant such permission on such terms as it thought fit.
5. We are informed that the petitioners have already filed a fresh petition in the Peshawar High Court pursuant to the order dated 23-10-1988.
6. We, therefore, find no force in this petition and accordingly dismiss it.