1992 PLP 1652 (MLD)

W.P. No.1555 of 1992, decided on 22nd February, 1992. ‑‑‑‑OXXIII, R.1-‑‑Constitution of Pakistan (1973), Art.199‑‑‑Maintainability of Constitutional petition‑‑‑Withdrawal of suit with permission to bring fresh suit upon existing cause of action‑‑‑Defendants' revision against conditional withdrawal succeeded and order of withdrawal of suit was set aside, whereupon earlier suit was revived‑‑‑Revival of earlier suit challenged by defendants‑‑ Effect of revisional order of lower Court was that earlier suit should have been revived and Trial Court acted in proper exercise of its jurisdiction in reviving that suit‑‑‑Constitutional petition was not maintainable against revival of suit and that too, by bye passing revisional jurisdiction of District Court. Sh. Nazir Ahmad Shami for Petitioners. Mst. Zainab Bibi owned a house and some agricultural land in Toba Tek Singh. She has number of sons. By a deed registered on 7‑10‑1974, she constituted one of his sons, namely Muhammad Younas, as her general attorney and gave him powers of alienation, etc. of her property. By two separate deeds registered on 12 7‑1981 and 5‑4‑1981, general‑attorney sold/donated her entire property in favour of his own sons. Thereupon, Mst. Zainab Bibi brought a civil suit for cancellation of registered deed of power‑of attorney and annulment of consequent registered deeds, dated 12‑7‑1981 and 5‑4‑1984. On the statement of her counsel recorded on 10‑1‑1990, the trial court gave permission for withdrawal of the suit with liberty to file a fresh suit upon the existing cause of action. On the basis of this permission, plaintiff instituted a fresh suit for declaration. Exact date of institution of the new suit was not known. However, learned counsel says that the suit was brought in the month of January, 1990. Meanwhile, the defendants to the first suit challenged the order of the trial Court, dated 10‑1‑1990 allowing conditional withdrawal of the suit with option to bring a fresh one. Revision succeeded on 9‑9‑1990 in the lower Court, whereby, conditional withdrawal was set aside. This order gave a death‑blow to the second suit which had‑ originated from the order of the trial Court dated 10‑1‑1990, later set aside, in revision. In consequence, the original suit was revived for trial on merits by the trial Court. Learned counsel is not in a position to assist,, whether the revival was at the instance of the plaintiff or by the Court suo motu. What the petitioners, however did was that they filed two applications on 31‑10‑1991 and 15‑12‑1991 for stopping proceedings taken on the earlier civil suit, saying that in view of the revisional order, those could not be continued. No order was shown to have been made on these applications. This is what the learned counsel states. But in absence of relevant record being before the Court, I do not propose to comment on the veracity of the learned counsel's statement. Be that as it may, upon the existing state of records, it is really incomprehensible as to how the writ could be filed and that too by by passing the revisional jurisdiction of the District Court. However, to cut‑short the matter and curtail the agony of a lady litigant, it seems necessary to observe that in view of the revisional order of the lower Court setting aside the order of the trial Court dated 10‑1‑1990, in all fairness, the earlier suit should have been received and the learned trial Judge acted in proper exercise of its jurisdiction in performing that act. In this view, I do not find any occasion to cause interference with the continuance of proceedings on the revived civil suit instituted by Mst. Zainab Bibi against his son and grandsons for regaining her property from them. With these observation disposed of. A.A./M‑288/L Order accordingly.