Ghulam Jilani etc. vs Adj etc.

FORM No. HCJD/C-121

ORDER SHEET

LAHORE HIGH COURT,

MULTAN BENCH, MULTAN.

JUDICIAL DEPARTMENT

W.P.No.14078 of 2018 Ghulam Jillani versus Additional District Judge, etc.

Sr. No. of order/ Date of order/ Order with signature of Judge, and that of Proceedings Proceeding Parties” counsel, where necessary 04.06.2026 Malik Zahid Hameed Sahu, Advocate for the petitioner. Rana Ghulam Hussain, Assistant Attorney General for Pakistan, Dr. Muhammad Azeem Raja, Ch. Imtiazullah Warraich and Syed Muhammad Haider Kazmi. Mr. Musleh ud Din Khan, Assistant Advocate General Punjab.

Malik Muhammad Bakhsh Khakhi, Assistant Advocate General Punjab, M/s. Muhammad Sajid Mirani, Sarmad Ahmad Ghani, Sh. Faisal Sikandar, Muhammad Aurangzaib Khan, Faisal Anwar Minhas, Syed Ali Allow u Din and Hammad Ajmal Qureshi.

Syed Faiz-ul-Hassan, District & Sessions Judge/Senior Additional Registrar Lahore High Court, Multan Bench, Multan.

Nasr Ullah Khan Niazi Additional Registrar (Judicial), Masoom Usmani Deputy Registrar (Judicial), Lahore High Court, Multan Bench, Multan.

C.M. Nos. 4315 and 4316 of 2026

The applicant, Ghulam Jillani, petitioner of the titled writ/Constitution petition (‘applicant’/ ‘petitioner’), through C.M. No.4315 of 2026, which is an application filed under Section 151 Code of Civil Procedure, 1908 (‘CPC’), has prayed for recall of order dated 01.11.2021 (‘Impugned order’) whereby the titled writ petition was dismissed as withdrawn and through accompanying C.M. No.4316 of 2026 filed under section

5 of the Limitation Act, 1908 has prayed for condoning the delay in filing the aforesaid application. As same facts are involved in dispute subject matter of both these applications, therefore, to avoid repetition and for expediency of decision, the issues involved in both these applications are being addressed and decided together.

2.The claim of the applicant is that he never filed C.M. No.8438 of 2018 for withdrawal of the main petition, which application has been allowed and as a consequence main writ petition was dismissed as withdrawn vide the impugned order passed in the afore referred application filed by a stranger to the proceedings and even the counsel, who appeared for withdrawal of writ petition, was not engaged by the applicant, hence the impugned order is void ab-initio and liable to be recalled and by setting the same aside, the main case be restored to its original number and status.

3.Perusal of the record shows that the

petitioner filed a suit for declaration before the Civil Court, Kot Addu, District Muzaffargarh (‘Trial Court’) against Muhammad Sharif, Respondent No.3 (‘Respondent’) claiming therein that the petitioner was owner in possession of the suit property and the mutation of sale No.414 dated 28.08.1990 recorded in favour of respondent was a fabricated document, based on fraud

and prepared without consideration and was liable to be set aside. During the trial of the said suit, on 19.04.2017 the learned Civil Judge, Kot Addu deputed his reader for recording evidence of witnesses. It is claimed that the reader in connivance with other party, during cross- examination, recorded certain points which were not uttered by the petitioner’s witness. After attaining knowledge about tempering of evidence i.e. recording of wrong version on 07.11.2017 petitioner filed application to bring to court’s notice wrong recording of evidence and rectifying the same, which application was dismissed on the same date and the revision petition filed by the petitioner against the same was dismissed on 19.07.2018.

The concurrent dismissal of said application resulted in filing of the titled writ petition challenging judgment dated 19.07.2018 passed by learned Additional District Judge, Kot Addu, District Muzaffargarh and praying for acceptance of application filed by him for conducting inquiry in respect of wrong noting and tempering with the cross-examination of plaintiff’s witness namely Hafiz Muhammad Nawaz along with prayer for re-examining the said witness.

4.On 09.10.2018, this Court issued notice to the respondent and passed order that till the next date of hearing fixed on 17.12.2018, the proceedings may

continue but final judgment shall not be announced.

Record reflects that the case was either not fixed for hearing on the said date or was not taken up for hearing.

Thereafter, the respondent filed an application for early hearing of the matter which was allowed on 07.10.2020 and constitution petition was ordered to be fixed for hearing on 10.11.2020 but even on the said date the same was again either not fixed before the Court or not taken up for hearing.

5.On 01.11.2021, C.M. No.8438 of 2018 filed by one Muhammad Niaz son of Bashir Ahmad through his counsel Mr. Amir Nadeem Malik, Advocate was fixed for hearing before the Court and by allowing the said application on the same date, the main petition was dismissed as withdrawn. Through the instant application recall of order dated 01.11.2021 is prayed for, therefore for clarity the said order is reproduced below:- “Mr. Amir Nadeem Malik, Advocate for applicant.

C.M. No.8438/2021.

By filing application in hand, the applicant sought withdrawal of the main case, which being supported by affidavit is allowed requiring office to fix it for today as well.

Main Case.

2.In view of the above development duly affirmed by the learned counsel for the petitioner, the titled petition stands disposed of accordingly.”

6.The claim of the applicant is that the aforementioned application was not filed by him and the learned counsel who was appeared in the matter was never engaged by him and even the said application was filed by a stranger to the proceedings, who was a petitioner of Writ petition No.14074 of 2018 titled Muhammad Niaz versus Province of Punjab, etc. who while filing application for withdrawal of said petition had incorrectly mentioned the case number of the petitioner’s constitution petition. In order to clarify the said position, the record of both the said files has been requisitioned and perused. C.M. No.8438 of 2021 shows that the same has been filed by Muhammad Niaz by mentioning the title of the petition as Muhammad Niaz versus Province of Punjab, etc. and affidavit of said Muhammad Niaz is also attached with the said application. On the said application instead of writ petition No. 14074 of 2018 filed by Muhammad Niaz, the number of instant writ petition i.e. 14078 of 2018 has incorrectly been mentioned, which was perhaps done through inadvertence.

7.The learned Senior Additional Registrar of this Court, who has appeared on Court’s call, was asked as to why the application bearing different title i.e. party names of some other case was attached with the instant

file by the office and placed for hearing before the Court, who states that as the matter is old one and most of the staff that was connected with fixation of the case on the said date i.e. 01.11.2021 is not available at the position that they held on the said date, therefore although no direct information is readily available to give a detailed finding but as per his cursory view the application for withdrawal of writ petition was attached with the titled petition as the number of instant writ petition was mentioned in the same and due to rush of work the title of the case may have been overlooked, however, he states that prima facie no deliberate act or mala fide intention of any person or official was involved in the said act of inadvertence. He has also referred to the orders passed in Writ Petition No.14074 of 2018 titled Muhammad Niaz versus Province of Punjab, etc. and states that the said writ petition, thereafter on being fixed before the Court in routine for the first time after passing of the impugned order, was also withdrawn vide order dated 16.02.2026, which shows that the intention throughout was to withdraw the said petition but wrong number inadvertently quoted in the application for withdrawal resulted in the mix up. For clarity the order dated 16.02.2026 passed in Writ Petition No.14074 of 2018 is reproduced below:-

“Learned proxy counsel under instructions from learned principal counsel wants to withdraw this petition. Dismissed as withdrawn.” The learned law officers have endorsed the stance of the learned Sr. Additional Registrar of this Court.

8.The counsel for the petitioner also does not state that withdrawal of Constitution Petition was a deliberate act which was result of mala fide intention of any party, person or the court staff, rather it is claimed that wrong mention of number of writ petition by a stranger to the proceedings has resulted in erroneous withdrawal of the same. Hence, it is important to comprehend that what would be the consequences for such withdrawal and its remedy.

9.It is settled that under Article 129 Illustration (e) of Qanun-e-Shahadat Order, 1984 presumption of correctness was attached to judicial proceedings but the same presumption was rebuttable and strong and unimpeachable evidence was required to rebut such presumption. Reliance is placed on Muhammad Sharif and others versus MCB Bank Limited and others (2021 SCMR 1158), Fayyaz Hussain versus Akbar Hussain and others (2004 SCMR 964).

10.With reference to Order XXIII, Rule 1 of CPC, it may be observed that withdrawal of a suit,

petition or part of claim results in putting end to further pursuit of remedy on the same cause of action unless subject to the exception that permission to file afresh is sought from the court, which is discretionary with the court. The court may disallow a request for withdrawal of a suit or petition if the same results in prejudice to a right acquired by a third party, defeat ends of justice or would result in perpetuating fraud, injustice or deprive Government/public functionaries to receive/recover public dues or prevent Court from undoing a wrong.

Furthermore such power of trial court under Order XXIII, Rule 1 CPC is also exercisable in the same manner by Appellate Court including the Supreme Court. Reliance is placed on Haji Muhammad Boota and others versus Member (Revenue), Board of Revenue, Punjab and others (PLD 2003 SC 979), Javaid Iqbal Abbasi & Company versus Province of Punjab and 6 others (1996 SCMR 1433), Muhammad Yar (deceased) through L.Rs.

and others versus Muhammad Amin (deceased) through L.Rs. and others (2013 SCMR 464), Sohail Islam and another versus Saadullah Khan and others (2026 SCMR

757)and Mst. Sakina Bi and others versus Barkat Hussain and others) (PLD 2026 SC 177).

11.However, the same provision i.e. Order XXIII, Rule 1 CPC also provides that only a plaintiff i.e.

party to the suit or proceedings can withdraw its suit or claim and a stranger to the proceedings does not figure anywhere in the said provision to allow him to withdraw the suit or claim of a party to the proceedings. Moreover even if he was a party to the proceedings, he was not competent to withdraw the claim to the detriment of a party whose rights had been created and would be infringed or adversely affected by such withdrawal for the reason that no one can bind any other person for consequences of his own actions performed or done without the authorization of said person and what could not be done directly cannot be allowed to be done indirectly. Reliance is placed on the judgments reported as Haji Muhammad Boota and others versus Member (Revenue), Board of Revenue, Punjab and others (PLD 2003 SC 979) and Amjad Rashid Khan Malik versus Mrs.

Shahida Naeem Malik and others (1992 SCMR 485).

Where a party cannot be allowed to withdraw a suit or claim if it adversely affects rights of a third party, as a necessary corollary, a stranger to the proceedings cannot be allowed to withdraw the petition filed by another party as he had no locus standi, right or authority to represent interest of the said party and withdrawal of proceedings by an unauthorized person would be liable to be declared as void ab-initio. Hence, presumption of judicial and

official acts having been regularly performed and correctness attached to the judicial record has been rebutted in the instant case.

12.In the present case as already discussed above, the withdrawal of the petition prima facie did not result from mala fide act of a party to the proceedings rather was based on inadvertence, when the application purported to be filed in another writ petition due to wrong mention of its number was attached with the file of instant writ petition. The learned lawyer who filed said application or the office of this Court should have detected the said defect but somehow it was overlooked by all including the office as well as the Court staff, may be due to the reason that they may have been overburdened on that particular day due to rush of work.

It is settled by now that an act of the Court or public functionary, which includes action or inaction on their part, should not cause prejudice to anyone. The act of employees of the court may also be included in the act of Court under certain circumstances, hence no person or party could be allowed to suffer for the act or omission or neglect of the Court or its officials. Reliance is placed on Ashiq Muhammad (deceased) through L.Rs and others versus Muhammad Usman (deceased) through L.Rs.

(2022 MLD 1203 Lahore), Bashir Ahmad versus Inayat

Ullah and another (1998 CLC 590 Lahore), Mst. Mumtaz Begum versus Said Zaman and 11 others (1993 CLC 1202 Lahore) and Akbar Khan and another versus Muhammad Sharif and 2 others (1993 MLD 2288 Lahore).

13.Court is under an obligation to reverse the wrong done to a party by the act of Court which is an elementary doctrine and tenet to the system of administration of justice. In the event of any injustice or harm suffered by mistake of the Court, it should be remedied by making necessary correction forthwith. If the Court is satisfied that it has committed a mistake, then such person should be restored to the position which he would have acquired if the mistake did not happen.

Reliance is placed on Abdul Qudoos versus Commandant Frontier Constabulary, Khyber Pakhtunkhwa, Peshawar and another (2023 SCMR 334), Homoeo Dr. Asma Noreen Syed versus Government of the Punjab through its Secretary Health, Department and others (2022 SCMR 1546 = 2022 PLC (C.S) 1390). In the judgment of aforementioned case of Abdul Qudoos, the Supreme Court also observed that:

“The doctrine of Ex debito justitiae refers to the remedies to which a person is entitled as a matter of right as opposed to a remedy which is discretionary. Every court has the power to rectify ex debito justitiae its judgment and order to

prevent abuse of process and severe and patent oversights and mistakes. This Court in the case of Government of the Punjab, through Secretary, Schools Education Department, Lahore and others v. Abdur Rehman and others (2022 SCMR 25), held that the lexicons of law provide the definition of the legal maxim "Ex Debito Justitiae" (Latin) "as a matter of right or what a person is entitled to as of right". This maxim applies to the remedies that the court is bound to give when they are claimed as distinct from those that it has discretion to grant and no doubt the power of a court to act ex debito justitiae is an inherent power of courts to fix the procedural errors if arising from courts own omission or oversight which resulted violation of the principle of natural justice or due process.

14.The petition filed by the petitioner was ordered to be withdrawn on an application of stranger to the proceedings and even the advocate who appeared to withdraw the case had no authority vested in him on behalf of the applicant to withdraw the same and such a withdrawal of petition by an unauthorized person was void ab-initio, hence, the applicant as of right is entitled to claim that his petition be restored and this Court under the doctrine of Ex debito justitiae is under obligation to rectify its mistake to prevent abuse of process occurred due to oversight and mistake, which requires passing of order of restoration of the petition to its original number and status and the said power and jurisdiction of the court may be exercised even without issuing notice to the other side for the reason that issuing notice may further delay

the matter and cause further prejudice to applicant’s rights without his fault.

15.As regards the question of limitation in filing the application for recall of order of withdrawal is concerned, it is the stance of the applicant that on 19.05.2026, the applicant contacted the office of this Court for seeking information of the movement / status of his constitution petition and was informed that the same had been withdrawn on 01.11.2021 and on further inquiry it transpired that the same had been withdrawn by a stranger to the proceedings by filing C.M.

No.8438/2021 for withdrawal of his main W.P. No.

14074/2018, but instead of it wrongly mentioned the number of petitioner’s writ petition No. 14078, which mistake was even overlooked by the Court in passing the order of withdrawal of petitioner’s writ petition. On attaining knowledge of said order, he without any further delay immediately approached this Court for recall of order, hence there is no waiver or acquiescence on the part of the petitioner in approaching the Court for seeking recall of said order and as such his application could not be treated as barred by limitation or laches. Furthermore, it is settled that limitation does not generally run against a void order, which was nullity in law, void or ultra vires as it does against an order passed in ordinary

circumstances. Reliance is placed on Qazi Munir Ahmad versus Rawalpindi Medical College and Allied Hospital through Principal and others (2019 SCMR 648), Senate through Chairman versus Shahiq Ahmed Khan (2016 SCMR 460), Rehmatullah and others versus Saleh Khan and others (2007 SCMR 729), Evacuee Trust Property Board and others versus Mst. Sakina Bibi and others (2007 SCMR 262), Land Acquisition Collector, Nowshera and others versus Sarfaraz Khan and others (PLD 2001 SC 514) and Muhammad Shafi versus Mushtaq Ahmad through Legal Heirs and others (1996

SCMR 856).

16.Although it may be argued that even a void order is liable to be challenged within the period or limitation, yet where applicant has no knowledge of such an order, the limitation would start from the date of knowledge. Reliance is placed on Muhammad Sharif and others versus MCB Bank Limited and others (2021 SCMR 1158), Haji Wajdad versus Provincial Government through Secretary Board of Revenue Government of Balochistan, Quetta and others (2020 SCMR 2046), Ghulam Hussain Ramzan Ali versus Collector of Customs (Preventive), Karachi (2014 SCMR 1594) and Gen.(R.) Pervez Musharraf versus Nadeem Ahmed (Advocate) and another (PLD 2014 SC 585).

17.In view of the above, even if, for the sake or arguments it be assumed that in the present case the question of limitation was important for filing an application for challenging the impugned void order of withdrawal of writ petition as the said order may have resulted in consequences, the limitation, if any applicable to such a particular case, would run from the date of knowledge, which has been expressly pleaded as 19.05.2026 and there is nothing available on the record to rebut the said assertion, and the instant applications have been filed on 03.06.2026, hence both the applications from the date of knowledge are within time.

18.The above referred circumstances, which are not in contention show that withdrawal of the case by the stranger has no role of the petitioner in it and as he was not at fault, blame of withdrawal cannot be attributed to him and the error, if any, lay with the office of this Court, therefore, question of limitation would become immaterial for recall of said order. Reliance in this behalf is placed upon the judgment reported as Mst. Surya Parveen versus Mst. Rukhsana Hanif and others (2012 SCMR 656) wherein it is held that the Court after transfer of case to it had dismissed the suit for non-prosecution without issuing notice to the petitioner on a date for which petitioner had no notice, hence same was not a

date of hearing and for the same petitioner was not at fault and in this scenario error, if any, lay with the trial court which had not gone through the record to ascertain the background which had led to transfer of case to it, therefore, the court while holding that it was not necessary to decide which Article of schedule of Limitation Act would be applicable to application filed for restoration of suit as the order of dismissal of suit for non-prosecution was not sustainable and restored to same by recalling said order.

19.Be that as it may, despite what has been discussed above the question of limitation in filing application for recall of order within period of limitation from the date of knowledge does not arise in the instant case as the order of withdrawal of petition by a stranger to the proceedings and that too through an unauthorized counsel was patently void and illegal and an order which is void has no legal existence and cannot trigger the period of limitation. Reliance for reaching such conclusion is placed on Abdul Hayee versus Muhammad Yousaf and 3 others (PLD 2026 Balochistan 43), wherein it is provided as under:-

“12. Now adverting to the second limb of arguments of the learned counsel for the petitioner with regard to limitation. It is by now settled that limitation does not run against a void order, because an order that has no legal existence

cannot trigger the period of limitation. Therefore, the petitioner”s application for restoration, even if filed after some delay, was rightly considered and allowed by the trial Court after condoning the delay in accordance with law.

20.With reference to the principles of case of Abdul Hayee, mentioned above, it is noted that another important aspect of this case is that valuable rights of the parties are involved in the matter. It has also been settled that proper place of procedure in any system of administration of justice is to help the masses not to frustrate the grant of rights of the people, thus all technicalities should have been avoided unless it is essential to comply with them on ground of public policy. The principle enshrined in the maxim “audi alteram partem” is applied in all judicial and quasi- judicial proceedings. The rule of propriety demands and principle of administration of justice requires that a fair opportunity of hearing shall be provided to all the contesting parties. In this regard Article 10-A of the Constitution can be referred. Furthermore, it is the persistent view of the superior Courts that the cases be decided on merits not on technicalities.

21.From the perusal of principles laid down in judgments referred to above, it may be concluded that where the order of dismissal of a case, either for non-

prosecution or withdrawal by unauthorized person was not legally sustainable, question of limitation has to be liberally construed for the purpose of restoration of the same and the inference is required to be drawn in favour of the party that has been adversely affected without any fault on its part.

22.In view of what has been discussed above coupled with the claim of the applicant that he approached the court immediately after attaining knowledge of withdrawal of his petition by a stranger, both the aforementioned applications, which are supported by affidavits, are allowed with the result that the delay in filing the application for recall of order is condoned and by recalling the order dated 01.11.2021, the main constitution petition is restored to its original number and status, which shall be listed for hearing after notice to the other side for an early date.

(MUZAMIL AKHTAR SHABIR)

JUDGE

Naveed*

Approved for reporting: