' ANWAR ZAHEER JAMALI, J.---This civil petition for leave to appeal is directed against the order dated 5-3-2014 in Suit No,194 of 1991, passed by the learned single Judge in chamber of the High Court of Sindh at Karachi.
2. The background of this litigation is that on account of death of Rashid Anwar Akhtar in a road accident on 10-2-1990, a suit for damages and compensation amounting to Rs,50,00,000 (Rupees Fifty lacs only) was instituted by his legal heirs,' as detailed in the title of the plaint wherein the present petitioner being father of the deceased was arrayed as plaintiff No,4. During its pendency, an application under Order XXIII, Rule 1 read with section 151, C.P.C., being C.M.A. No,8404 of 2010 was filed in the suit, which was signed by plaintiffs Nos.1 to 3 Mst. Shirin Akhtar, widow of the deceased and Hammad Akhtar and Madiha Akhtar, respectively son and daughter of the deceased and learned Advocate for the defendants, which was disposed of in terms of the order dated 24-8-2010, which reads as under:- " This is an application under Order XXIII, Rule 1 read with section 151, C.P.C. Filed by the plaintiff No,1 for self and as attorney of plaintiffs Nos.2 and 3. The application is also signed by learned counsel for the plaintiffs Nos. 1 to 3 and the learned counsel for the defendants. In this application it has been stated that without admitting any liability on the part of the defendants and without prejudice to their rights and contentions, the defendant No,1 has agreed to deposit in this Court a sum of Rs,5 million through pay order in favour of Nazir of this Court. It is also prayed that the Nazir may be directed to release the payment to the under mentioned plaintiffs in accordance with their respective share under the Sharjah.
' By consent this application is allowed, however, it is clarified that this application is allowed without prejudice to the rights of plaintiffs Nos.4 and 5.
' Office is directed to strike out the names of plaintiffs Nos.1 to 3 from the array of plaintiffs.
' Nazir is directed to release the amount in accordance with terms and condition mentioned in the application (C.M.A. No,8404 of 2010), however, it is further clarified that the share of plaintiffs Nos.4 and 5 shall be retained by the Nazir till further orders and it will be invested in sum profit bearing scheme. Learned counsel for the defendants is directed to deposit the original pay order with the Nazir of this court."
3. Seemingly, during pendency of the suit, in the year 2007 an application C.M.A. No,5133 of 2007, for amendment in the plaint thereby seeking enhancement in the claim of damages and compensation from Rupees five millions to ten millions was also moved by the petitioner and other plaintiffs in the suit. On 5-3-2014, impugned order was passed, whereby while dealing with another application under Order VII, Rule 11, C.P.C., taking into account the earlier proceedings in the suit, the suit was dismissed as withdrawn, having left with no cause of action after the above compromise, while the C.M.A. No,5133 of 2007 was also dismissed, having become infructuous, as the present petitioner and his wife Mst. Majida Akhtar have also withdrawn from the Court their respective shares along with profit accrued thereon, from the total sum deposited by the defendants in the suit proceedings.
4. We have heard the petitioner. His submissions is that compromise even if presumed to be lawful and validly entered into between plaintiffs Nos.1 to 3 and the defendants was in no way binding on him and his wife represented by him as her general attorney, as they are neither the signatories of such compromise nor have ever consented for it. He, however, did not dispute that out of the total sum of Rs,50,00,000 deposited by the respondents with the Nazir of High Court of Sindh on 26-8- 2010, a sum of Rs,23,00,006 (Rupees twenty three lacs and six only) has been withdrawn by them along with profit. In this regard, his further submission is that the withdrawal of said amount was made by him without prejudice to his legal right, therefore, his right to seek disposal of the suit on merits still survives and for this purpose he and his wife are willing to redeposit the whole sum received by them from the Nazir of the High Court.
5. In reply to the above submissions, Mr. Abdul Qadir Khan, learned Advocate Supreme Court for the respondents contended that the compromise entered into between some of the plaintiffs to the suit and the defendants was their voluntary act and it was in this background that a substantial sum of Rs,50,00,000 was deposited by the defendants in the suit as full and final settlement of their claim, and the suit against plaintiffs Nos.1 to 3 was finally disposed of in terms of the order dated 29-8-2010, and thereafter, being fully satisfied with the disposal of suit in terms of the compromise, none of them has come forward to agitate any further grievance. In so far as the grievance of the present petitioner and his wife is concerned, indeed they have not signed that compromise application (C.M.A. No,8404 of 2010) and have also earlier moved an application for amendment in the plaint, thereby seeking enhancement of damages and compensation from Rs,50,00,000 (Rupees Fifty lacs only) to Rs,100,00,000 (Rupees One crore only), but in view of their conduct that they have withdrawn their share of Rs,16,66,500 (Rupees Sixteen lacs sixty six thousand and five hundred only) along with profit accrued thereon, total amounting to Rs,23,00,006 they are now estoppel from contesting the suit on merits. Mr. Abdul Qadir Khan, learned Advocate Supreme Court for the respondents Nos.4 and 5 further disputed the claim of the petitioner that withdrawal of such amount was without prejudice to their legal rights.
6. Be that as it may, we feel that when a party has not entered into any compromise with the respondents Nos.4 and 5, as evident from non-signing of the application of compromise C.M.A.
No,8404 of 2010 and the fact that suit is being still contested by them, mere subsequent withdrawal of the amount of their share will not operate as estoppel. The A petitioner has made a statement before the Court that the total sums which he had withdrawn as his share and the share of his wife Mst. Majida Akhtar, being her attorney, he is willing to deposit in Court so as to contest the suit on merits and in accordance with law to the extent of his share and the share of his wife.
7. This being the position, we feel that on the basis of application under Order VII, Rule 11, C.P.C.
Moved by respondents, disposal of the suit through the impugned order was uncalled for as dismissal of the Suit on mere presumption about certain facts is not warranted by law, B more particularly, when a party is contesting the suit and wants its disposal on merits, and has also filed an application for amendment in the pleadings.
8. This being the position, we have firstly asked the petitioner as to whether as a condition precedent for upsetting the impugned judgment, he and his wife Mst. Majida Akhtar are willing to deposit the whole amount, which they have received from the High Court during the pendency of the suit as their share from the sum deposited by the respondents along with profit accrued thereon, to which he has shown his willingness to deposit. We have also asked the learned Advocate Supreme Court for the respondents as to whether he is consenting for the disposal of this petition in the terms that so far as the claim of the widow and son and daughter of the deceased is concerned, which has been paid to them in terms of the order dated 24-8-2010, the suit shall be deemed to have been finally disposed of, while subject to deposit of whole of the amount, which the petitioner has withdrawn during the pendency of the suit from the High Court of Sindh against his share and the share of his wife, within a period of two months to the extent of their share, the suit shall stand revived and it be proceeded further in accordance with law, his answer is in the affirmative.
9. In view of the foregoing discussion, this petition is converted into an appeal and allowed in the above terms. It is further made clear that in case of failure of the petitioner and his wife Mst. Majida Akhtar to deposit the whole sum already received by them from the High Court on account of their share, this petition shall be deemed to have been dismissed with costs and no further proceedings will be required in the suit.