1998CLC213 (PLP)

2. The brief facts of the case are that the appellant was appointed as Chairman, Service Tribunal, vide Government Notification, dated 2‑8‑1993 and was functioning as such when he apprehended his removal, despite the fact that he was entitled to function as Chairman of Service Tribunal by virtue of the aforesaid notification till he attains the age of 62 years. According to the appellant, the notification of his removal was contemplated by the Government on the pretext of the observations made by the High Court in the order passed in the cases entitled Raja Bashir Ahmad Khan v. President of Azad jammu and Kashmir and others and Syed Muhammad Akram Shah v. Azad Government and others, despite the fact that the points discussed in the said cases were not in issue in the instant case and were relied upon without giving an opportunity of hearing to the appellant, herein. Consequently, the appellant filed a writ petition in the High Court seeking a writ of prohibition against the respondents restraining them from terminating his services as Chairman, Service Tribunal, on the basis of the aforesaid observations. During the pendency of the writ petition, the appellant made an application to the High Court seeking for the withdrawal of the writ petition because he intended to seek the redressal of his grievance by filing a fresh writ petition. The learned Judge in the High Court, who was seized with the case, passed the following order on his application for the withdrawal of his writ petition:‑‑ "In view of the chequered facts and different applications filed by the appellant and the para‑wise comments and rejoinder filed by the respondents, the detailed order will follow. However, the petition stands consigned to record in view of the application, pending detailed order." Subsequently, the High Court passed a detailed order on 5‑12‑1996, wherein the observations made by the High Court in two cases, referred to above, were relied upon in support of the view that the appellant was not entitled to hold the office of the Chairman, Service Tribunal, till he attains the age of 62 years despite the fact that the Government notification dated 2‑8‑1993, postulates that he would enjoy the terms and conditions of Judge of a High Court. The appellant assails the order of the High Court dated 5‑12‑1996 on the ground that the observations made in the said order are uncalled for and without jurisdiction. According to the appellant, when he was permitted to withdraw his writ petition to file a fresh writ petition for the redressal of his grievance, the High Court was debarred from embarking upon the merits of the case observing that the appellant was not legally entitled to hold the office of Chairman Service Tribunal till he attains the age of 62 years. The appellant has further argued that after the withdrawal of his writ petition, he filed a fresh writ petition in the High Court which is sub judice. Thus, he has contended that if the observations made in the order dated 5‑12‑1996 are not set at naught, his writ petition would be adversely affected as the question of his terms and conditions is also involved in the subsequent case.

3. Raja Shiraz Kayani, Advocate‑General, the learned counsel for the respondents, has submitted that in fact the appellant was permitted to withdraw his writ petition on 3‑12‑1996 and the detailed order was passed on 5‑12‑1996 wherein the impugned observations were made by the High Court. The learned counsel for the respondents did not seriously controvert the argument of the appellant that if the observations made in the order dated 5‑12‑1996 are not annulled, the same may adversely affect the writ petition filed by the petitioner which is still sub judice in the High Court. However, the learned counsel for the respondents has tried to make out a case that the conduct of the appellant before the High Court has been of such a nature that he was not entitled to any remedy in the present appeal, especially so when he withdrew his writ petition on his own accord.

4. The moot point involved in the present appeal is as to whether the High Court was legally justified in making observations on the merits of the case in the detailed order dated 5‑12‑1996 after permitting the withdrawal of the same In view of the provisions of Order XXIII, rules 1 and 2, C.P.C., after granting the permission to the petitioner‑appellant to withdraw his writ petition, there was no occasion to deal with the merits of the case; thus, the observations made by the High Court which pertained to the merits of the case are uncalled for and without jurisdiction. The Court could only record the reasons in support of the order of withdrawal and was not legally justified to make observations relating to merits of the case.

5. As has been already pointed out, the appellant has argued that he withdrew his writ petition because he intended to get the redressal of his grievance by filing a fresh writ petition as is evident from his application for withdrawal. He has argued that although the High Court has not specifically mentioned the permission to institute a fresh petition yet the permission sought would be deemed to have been granted to him. He has referred to a case reported as Karim Gul v. Shahzad Gul (PLD 1968 Pesh. 134) in support of his contention that an application for withdrawal of a suit with permission to bring a fresh suit, the Court cannot withhold the permission to bring fresh suit while allowing withdrawal of the suit. The Court can either accept or reject both the prayers. Thus, if it allows the withdrawal of the suit but rejects the prayer for filing the fresh suit, the order would be beyond the jurisdiction and subsequent suit would not be barred. The appellant has argued that in the instant case, the prayer for bringing a fresh writ petition was not rejected and, thus, he was legally entitled to bring fresh writ petition.

6. Mr. Shiraz Kayani, the learned counsel for the respondents, did not controvert the argument that if the order dated 5‑12‑1996 is read with the application for withdrawal submitted by the appellant, the permission to bring a fresh writ petition would be deemed to have been granted to him.

7. It may be observed that the view taken in Karim Gul's case, referred to above, and‑ relied upon by the appellant is also supported by the following authorities:‑‑ (1) Nakimuddin Sana v. Sonaulla Biswas (PLD 1953 Dacca 29). (2) Haji Abdul Rasid Sowdagar v. S.M. Lalita Roy (PLD 1959 SC 287) (3) Karim Gul v. Shahzad Gul (1970 SCMR 141). (4) S. Nisar Ali v. Feroz Din Rana (1969 SCMR 933). (5) Muralidhar Marwari v. Lalit Mohan Sahu (AIR 1962 Orissa 86). (6) Khadi Rai v. Lalu Rai (AIR 1936 Pat. 258). However, in the instant appeal, the question as to whether the permission to file a fresh writ petition was granted to appellant is not relevant; this point is beyond the scope of the present appeal and need not be gone into. In the light of what has been stated above, we accept the appeal in terms that the observations trade by the High Court in the order dated 5‑12‑1996 are of no legal consequence and would be deemed to be non‑existent. ??/199/SC(AJ&K)?????????????????????????????????????????????????????? ??????????? Appeal accepted.