2004 PLP 572 (CLC)

Muhammad Yaqoob Chaudhry for Petitioners. Muhammad Yaqoob Sabir for Respondents Nos. 1 to

11. Ch. Muhammad Anwar Waraich for Respondents Nos.37 to

41. Nemo for the Remaining Respondents. Date of hearing: 14th October, 2003. A declaratory suit instituted by the petitioners is pending before the trial Court. In that an application was filed by some of the defendants to seek amendment in their written statement. The said application was dismissed by the trial Court on 19‑6‑2002, where-against the revision petition filed by them was accepted by the learned Additional District Judge, Kasur on 14‑12‑2002 subject to payment of costs of Rs.1,

500. This order has been assailed through this petition under Article 199 oil the Constitution of Islamic Republic of Pakistan, 1973.

2. The learned counsel for the petitioners contends that the learned Additional District Judge acted illegally in reversing the order passed by the trial Court whereby the amendment in the written statement was disallowed by the latter. The learned counsel for the respondents/defendants on the other hand has pointed out that since the petitioners had by receiving costs of Rs.1,500 accepted the order impugned petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 is not maintainable.

3. The order impugned allowing amendment was passed on 14‑12‑2002 which was subject to payment of Rs.1,500 as costs. The interim order of the trial Court dated 11‑1‑2003 shows that costs of Rs.1,500 were paid and the amended written statement was also filed. This petition was filed on 16‑1‑2003 which was fixed before the Court on 23‑1‑2003 and heard. No reference whatsoever has been made in the petition as to the receipt of costs by the petitioners. This undoubtedly is a suppression of material fact. The learned counsel for the petitioners, however, submits that the petitioners had sought for the recalling of order, dated 11‑1‑2003, which was recalled on 24‑1‑2003. According to him receipt of costs does not estop the petitioners from assailing order, dated 14‑12‑2002. The contention so raised by the learned counsel in the peculiar facts and circumstances is not tenable inasmuch as before filing this petition the costs had been received on 11‑1‑2003 and thus has acquiesced and accepted the amendment so allowed by the Court. Reference in this context may be made to Ram Gopal v. Man Chand AIR 1981 All. 352, and Khawaja Umar Joo v. Muhammad Hussain and others PLD 1963 Azad J&K

44. Recalling of order, dated 11‑1‑2003, is of no avail to the petitioners as the same was in view of interim order of this Court, dated 23‑1‑2003 which had been procured by suppression of the earlier receipt of costs. Moreover, the conduct of the petitioners disentitles them to relief from this Court in writ jurisdiction for suppressing the material facts. As mentioned above, it was only after obtaining interim order dated 23‑1‑2003 that a move was made by them before the trial Court for the recall of order dated 11‑1‑2003. To say the least the conduct is not worthy of granting any relief to them. In view of the above, this petition is dismissed. No order as to costs. H.B.T./P‑165/L Petition dismissed.