ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Civil Revn. Appln. No.S-29   of  2015

DATE OF HEARING

ORDER WITH SIGNATURE OF JUDGE

23.1.2017.

1. For Katcha Peshi.

2. For hearing of M. A. No.149/2015.

Mr. Rashid Mustafa Solangi, advocate for the applicant.

Mr. Abdul Karim Surahio, advocate for respondents No.1, 2 and 3.

Mr. Sarfraz Ali Abbasi, advocate for respondents No.15. 

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                   This revision was filed on the dismissal of an application under Order 7, Rule 11, CPC by the appellate Court, whereby the order of rejection of plaint in Suit No.3/2012 filed by the respondent was reversed and the case was remanded to the trial Court.

                    The precise facts which came before the Court as per pleadings of the parties are that respondent No.1 filed earlier Suit No.3/2012 (New No.61/2013) through an attorney, namely, Kamal Mustafa and that attorney without consent and express permission of the plaintiff has withdrawn the said suit without any justification.  However, as soon as it came to the notice of respondent No.1 that his attorney had withdrawn the suit filed by him, he immediately filed a fresh suit bearing Suit No.99/2013 and impleaded his attorney.  It is pertinent to mention here that the earlier suit was withdrawn on 11.3.2013 and the fresh suit was filed on 16.4.2013.  It is specifically alleged in the fresh suit that earlier suit has been withdrawn by his attorney without the express permission of the plaintiff.  In these circumstances, when the withdrawal of earlier suit was in dispute in the subsequent suit, to that extent a new cause of action has arisen.  Not only this, the applicant before this Court has not disputed the allegation of the plaintiff in subsequent suit that the earlier suit has been unlawfully withdrawn.  It is a settled law that when an attorney acts to the detriments of his principal, the principal is not bound by such conduct or act of the attorney. 

                   Learned Counsel for the applicant has not been able to satisfy the Court on the point that the conduct of the attorney of withdrawal of the suit was not against the interests of the principal, the plaintiff.  The order of withdrawal of earlier suit though could have been challenged even in appeal cannot be an impediment in filing of the fresh suit by respondent No.1 since admittedly earlier suit was not decided on merit and the issues between the parties remained intact.  In the present case there is a dispute about the legality of withdrawal of the earlier suit as allegation of winning over of the attorney by the applicant is necessary issue between the applicant, defendant No.1 and defendant No.15.  When there is any additional issue which has not arisen in the earlier suit, could be a good ground for maintaining a subsequent suit.  Another aspect of this case is that the dispute which relates to the property should be decided on merits while hearing all the contesting parties instead of playing hide and seek or manipulating the things in the Court.

                   In view of the above, this revision is dismissed and the remand order passed by the first appellate Court is maintained.  The proceedings are already going on in trial Court.  The parties are left to contest the same in accordance with law. 

                   With the above observations this revision application is disposed of alongwith listed application.

                                                                                                JUDGE

Qazi Tahir/*