ORDER   SHEET

IN  THE  HIGH  COURT  OF  SINDH, CIRCUIT  COURT,  LARKANA

Constt: Petition.No.D-33 of 2014.

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DATE                                       ORDER WITH SIGNATURE OF HON’BLE JUDGE

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Before:

Mr. Justice Irshad Ali Shah,

 Mr. Justice Shamsuddin Abbasi,

01. For orders on office objection “A”.

02. For hearing of M.A.No.170/2014 (S/A)

03. For orders on maintability of main case.

30.11.2021

                        Mr. Vinod Kumar G. Jessrani, Advocate for the petitioner.

                        Mr. Liaquat Ali Shar, A.A.G.

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                        Facts in brief necessary for disposal of instant constitutional petition are that the suit filed by the petitioner was dismissed as withdrawn; its restoration was denied by learned trial Court; a revision application preferred against such order was dismissed by the learned revisional Court; such dismissal is impugned by the petitioner before this Court by filing the instant constitutional petition.

                        It is contended by learned counsel for the petitioner that the suit of the petitioner was withdrawn before learned trial Court without consent of the petitioner by his learned counsel; therefore, such withdrawal being illegal is liable to be set aside. In support of his contentions, he relied upon case of Nadeem Zuberi Vs. Civil Aviation Authority through Director General                (PLD 2021 Sindh-103).

                        Learned A.A.G by supporting the impugned order has sought for dismissal of instant constitutional petition.

                        We have considered the above arguments and perused record.

                        If for the sake of arguments, it is believed that the suit of the petitioner was withdrawn before learned trial Court without his consent by his learned counsel, then obviously it constitutes an act of fraud which could only be adjudicated by way of filing an application under section 12(2) CPC or alternatively the petitioner was having a remedy to sue his counsel for damages which he sustained on account of withdrawal of his suit. In these circumstances, learned trial and revisional Courts were right in their refusal to restore the suit of the petitioner by way of impugned orders; such orders are not found to be illegal or cursory to be interfered with by this Court in exercise of its constitutional jurisdiction.

                        The case law which is relied upon by learned counsel for the petitioner is on distinguishable facts and circumstances. In that case, the pensionary benefits were involved, the petition was withdrawn mistakenly and its restoration was not rebutted by other side. In the instant matter, no pensionary benefit is involved and other side has rebutted the claim of the petitioner before learned trial and revisional Courts.

                        In view of above, the instant constitutional petition being misconceived is dismissed together with listed application.

J U D G E

    J U D G E