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Civil Petition No. 1056 of 1981, decided on 21st April, 1981.
(On appeal from the judgment dated 3‑11‑1981 of the Lahore High Court, Lahore' in R. S. A. No. 263 of 1976).
‑‑‑‑ O. XXIII, rr. 1 & 2 and Constitution of Pakistan (1973), Art. 185(3)‑Suit, withdrawal of‑Suit dismissed as withdrawn- Whether such withdrawal can be withdrawn‑Compensation for with drawal‑District Judge failing to notice in application, averment to effect that compensation has been received‑High Court also not dealing with this issue at all‑Leave to appeal granted.
Khawaja Muhammad Farooq, Advocate Supreme Court and S. Inayat Hussain, Advocate‑on‑Record for Petitioner.
Haji Ghias Muhammad, Advocate Supreme Court and Sh. Abdul Karim, Advocate‑on‑Record for Respondents.
Date of hearing: 21st April, 1982.
It is, inter alia, submitted that Mst. Hayat Bibi (respondent No. 1 herein) had applied for withdrawal of her suit which was, accordingly dismissed as withdrawn by the. Administrative Civil Judge, Sheikhupura, on 31‑10‑1973 and that this withdrawal could not subsequently, be withdrawn. It is further submitted in this connection, that the decision of the learned Administrative Civil Judge, Sheikhupura, dated 24‑2‑1965 holding that the withdrawal was unauthorised, was based on an erroneous assumption of fact while the learned District Judge, Sheikhupura bad not set aside this decision on the assumption that Mst. Hayat Bibi could not have agreed to withdraw the suit without being properly compensated. However, he failed to notice that in the application for withdrawal there was an averment to the effect that she had received compensation. As for the High Court it had not dealt with this issue at all although, according to counsel, this matter was pressed.
This point inter alia requires further consideration. Leave is accordingly granted.
Security in the sum of Rs. 2,000.
The order of status quo passed on 5‑12‑1981 will continue during the pendency of the appeal. However, it is clarified that the proceedings regarding possession pending before the Additional District Judge, Sheikhupura are not stayed and can continue.
Leave granted.
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