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Constitutional Petition No. 80 of 1976, decided on 29th June, 1976.

---O. XXIII, r. 1-Suit, withdrawal of-Suit can be withdrawn at any time whenever plaintiff desires--Court, held, cannot compel plaintiff to continue suit.-[Withdrawal of suit].

Karim Gul v. Shahzad P L D 1968 Pesh. 134 and Malik Mumtaz Ali v. Pakistan through Secretary, Refugees & .Works, Government of Pakistan P L D 1971 Lab. 395 rel.

--O. XXIII, r. I -Constitutional petition-Order XXIII, r. 1 Application of-Principles embodied in O. XXIII, r. 1, C. P. C., held, apply to constitutional petitions, proceedings under Art. 199 relating to civil matters being civil proceedings.-[Constitution of Pakistan (1973), Art. 199].

Hussain Bakhsh v. Settlement Commissioner and another 1969 S C M R 268 fol.

Abdul Fateh Memon for Petitioners.

Ghulam All Memon, A.-G. for Respondent No. 1.

Basharatnllah for Respondent No. 4.

By this petition filed on 26-5-1976, the petitioners, 217 in number, on the allegations made therein that they were the owners and were in cultivating possession and enjoyment of its produce, made a grievance that no order was being passed on the application filed by the petitioners under section 165 of the West Pakistan Land Revenue Act 1967, whereby they prayed for stay of the execution of the order dated 2-10-1975 which was the subject matter of appeal pending before respondent 1, Commissioner Sibi Division at Sibi, Baluchistan. Alongwith this petition, the petitioners also applied for stay of operation of the order dated 27-4-1976 which was the subject matter of the appeal before respondent 1. On 26-5-1966, when the petition came up for Katcha Peshi, while admitting the petition, the Court was pleased to stay the operation of the order on the condition that before removing the crops, the petitioners should furnish security to the Naib-Tehsildar in respect of the shares of the petitioners.

On 16-6-1976 respondents 2 and 3 filed an application praying for hearing of the matter on 17-6-1976 and stating therein that the Commissioner Sibi Division, Sibi had finally disposed of the appeal and thus the main constitu tion petition had become infructuous and that the remedy open to the petitioner was to file a revision petition before the Member, Board of Revenue.

However, on 18-6-1.976, when the case came up for consideration of ad interim stay, Mr. Abdul Fateh Memon, the learned counsel for the petitioners stated before the Court that the petition had become infructuous by virtue of the fact that the petitioners' pending appeal before the Commissioner had been decided on 15-6-1976. He, therefore, prayed for withdrawal of the petition. However, Mr. Jaffery and Mr. Basharatullab, the learned counsel for the non official respondents opposed the prayer for withdrawal of the petition without restoring to the non-official respondents the benefits allegedly wrongly derived by the petitioners. Therefore, the Court fixed the case for today for considering the question whether any remedy was still available to the non-official respondents in the present petition before an order was made allowing the petition to be withdrawn.

Today, Mr. Abdul Fateh Memon has repeated his prayer for withdrawal of the petition for the reasons stated hereinbefore. Mr. Basharatullah has again opposed the request. However, in view of the allegations made in the petition and in the absence of any counter-affidavit controverting the allegation made by the petitioners with regard to their being in cultivating possession and enjoyment, and in the absence of any application made by the non official respondents claiming any relief under the conditional interim stay order, it is not possible to grant any relief to the non-official respondents and not to allow the petitioners to withdraw the petition. Under Order XXIII, rule 1 C. P. C. a suit can be withdrawn at any time whenever plaintiff desires and it is not possible for the Court to compel the plaintiff to continue the suit as was held by his Lordship Anwarul Haq, J., as his Lordship then was (how, Judge of the Supreme Court of Pakistan) in Karim Gut v. Shahzad (P L D 1968 Pesh. 134) and again in Malik Mumtaz Ali v. Pakistan through Secretary. Refugee and Works Government of Pakistan (P L D 1971 Lah. 395).

The principles embodied in Order XXIII, rule I are ap plicable to Constitution Petitions as the proceedings under Article 199 of the 6 Constitution relating to a civil matter are civil proceedings in view of the judgment of their Lordships of the Supreme Court in Hussain Bakhsh v. settlement Commissioner and another (1969 S C M R 268).

We may record that Mr. Basharatullah requested us to ad journ the case to enable him to take necessary steps to claim the relief available to him under the conditional interim order. However, in our view, non-official respondents had enough time to take such steps as they were advised. They had at least 10 days' time to make the necessary application and/or to take other steps. We, therefore, declined to adjourn the hearing. However, this order would not preclude the non official respondents from claiming such relief as is available to them under law, on account of conditional interim order passed by this Court on 26-5-1976.

We, therefore, allow the petitioners to withdraw the petition and, accord ingly,- dismiss the same as withdrawn. We do not award any costs in view of the fact that the petition became infructuous due to decision of appeal filed by the petitioners during the pendency of the petition.

Order accordingly.

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