1999 PLP 2615 (YLR)

1992 SCMR 485 and PLD 1991 SC 131 ref. Maazullah Barkandi for Petitioner. Abdul Mabood Khattak for Respondents. Date of hearing: 14th June, 1999. Learned counsel for the petitioner/applicant states that in view of the statement of the applicant Mst. Zahida Parveen, her application C.M. No.219 of 1999 for the withdrawal of C.M. No.143 of 1999 be accepted and C.M. No.143 of 1999 be dismissed as withdrawn as same was filed without her consent and permission. This was resisted by the learned counsel for the respondents on the plea that since right has accrued to the respondents, therefore, the applicant cannot withdraw the application (C.M. No. 143 of 1999).

2. Brief facts of the case are that C.R. No.417 of 1989 (A.S. Qazi v. Mst Shoukat Ara) was disposed of on 16‑3‑1991 in terns: of compromise executed between them on 20‑1‑1991 and in consequence thereto suit was decreed in terms thereof. After more than four years, the petitioner/applicant filed an application under section 12(2), C.P.C. for setting aside the judgment/order, dated 16‑3‑1991 passed in C.R. No.417 of 1989. which application was dismissed for non- prosecution on 22‑3‑1999. Mr. Abdul Rauf Rohaila, Advocate tiled an application for restoration of C.M. No. 381 of 1995 on 24‑3‑1999 the notice whereof was ordered to be issued to the other side on 2:3‑4‑1999 However, on 8‑5‑1999 applicant filed an application C.M. No.219 of 1999 for the withdrawal of C.M. No.143 of 1999 on the ground that her counsel due to sonic misunderstanding and under Wrong impression had filed C.M. No. 143 of 1999. and since the parties have compromised the matter, therefore, she does not want to proceed in the case any further, as such the restoration application be dismissed as withdrawn.

3. Learned counsel for the respondents vehemently argued that petitioner/applicant cannot withdraw C.M. No.143 of 1999 as its withdrawal would adversely effect the accrued rights of the respondents. He also urged that one of the applicant is minor, therefore, application for withdrawal of C.M. No.143 of 1999 on minor's behalf cannot be made. Reliance was placed on 1992 SCMR 485 and PLD 1991 SC 131.

4. By virtue of subsection (2) of section 12, C.P.C. the validity of a judgment, decree or order can be challenged by a person on the ground of fraud, misrepresentation or want of jurisdiction by an application in the Court which had passed the final judgment, decree or order. An application C.M. No.381 of 1995 was filed by the petitioner/applicant which was dismissed for non‑prosecution. Application for restoration was made by her counsel without her instruction and when she came to know of restoration application, she applied for the withdrawal of the same. She recorded her statement in support of her withdrawal application on 14‑6‑1999. the contention of the learned counsel for the respondent that she cannot withdraw the restoration application has no force. He stated that respondent rights were transgressed by the compromise, dated 20‑1‑1991 on the basis of which C.R. No.417 of 1989 was disposed of. It may be noted that respondent No. l was a party in the said compromise duly represented by her husband and if she had any grievance, she could file her own application and could not take shelter under the petitioner's application as plea of fraud and misrepresentation is relatable to a person who alleges it. As far minor's interest is concerned, the petitioner/applicant being the real mother (natural guardian) and duly appointed guardian for the person and property of her daughter vide order, dated 3‑2‑1993 of the Guardian Judge, Peshawar was competent to look after the interest of her minor daughter and none else but the real mother can best look-after the interest of the minor. The rulings cited by the learned counsel for the respondent are distinguishable and are not applicable to the facts of the present case as in the instant case only the request for withdrawal of restoration application has been made. The applicant in her application C.M. No.219 of 1999 has stated that application C.M. No.143 of 1999 was filed without her instruction and she has also compromised the matter with the parties, therefore, she does not wish to proceed any further, her request cannot be turned down specially when there is no legal impediment for the withdrawal of restoration application. Consequently in view of the statement of the applicant Mst. Zahida Parveen that she does not intend to pursue application C.M. No.143 of 1999, her application C.M. No.219 of 1999 is allowed and C.M. No. 143 of 1999 is dismissed as withdrawn. C.M. No.236 of 1999 is disposed of accordingly. H.B.T./448/P Order accordingly.