1. ' These are three applications, C.M.A. No,6079/86 presented in Court on 27-10-1986 is an application under Order 23, rule 1, C.P.C. Filed by Mr. Shafaat Hussain, learned counsel for the plaintiff. C.MA.
2. No,4802/86 is an application under Order 1, rule 10, C.P.C. Presented on 27-10-1986 in Office by the learned counsel for the defendant No,24 to transpose the defendant as plaintiff. C.MA. No,5041/86 is an application under Order 8, rule 10 read with Order 12, rule 6 and section 151, C.P.C. Filed by Mr. Arif Hussain learned counsel for defendant No,24 for pronouncement of judgment on the basis of the admission made in the pleadings/record.
3. ' The above suit for dissolution of partnership and rendition of accounts was instituted on 7-12-1977 by the plaintiffs Nos.1 and 2 against defendants Nos.1 to 23 as partners in the firm known as Eros Theatre and defendants Nos.24 to 34 as assignees of some of the partners. No written statement was filed by any one of the defendants and thus the suit was fixed for final disposal. On 27-10-1986, however, the plaintiffs' counsel filed an application (C.M.A. No,6079/86) for withdrawal of the suit.
4. This was signed by both the plaintiffs and their counsel and also signed by the counsel for the defendants Nos.2 to 5 and defendants Nos. 6 to 23. The counsel for defendants Nos.25 to 34 raised no objection to the grant of the same. However, the application was opposed by the counsel for defendant No,24 only. It may also the mentioned that after filing the above application by the plaintiffs, the said defendant No,24 also filed two other applications referred to above for transposing the defendants and for decree on admission.
5. ' It may be stated, that the defendant No,24 did not make an application for setting aside the order of final disposal of the suit, though it was pointed by me during the course of arguments and pointedly at the close of his submission. In fact, he kept quiet and did not give any answer as to how he can appear in the suit without seeking leave of the Court.
6. ' The right of the plaintiff to withdraw the suit unconditionally is absolute. The Court has no power to insist upon the plaintiff to continue with the suit. Reliance is placed on the following observations of Mr. Justice Anwarul Hag (as he then was) in the case of Mumtaz Ali v. Pakistan (PLD 1971 Lahore 395).: "If any plaintiff is not seeking permission of the Court to institute a fresh suit in respect of the same subject-matter or the cause of action, then he is at liberty to withdraw the suit at any time in terms of sub-rule (1) of rule 1 of Order XXIII. The Court does not appear, in such circumstances, to have any power to compel the plaintiff to continue the suit."
7. There is, however, an exception to it. The withdrawal of the suit may be refused if preliminary decree has already been passed, which is not the case here. I am informed by the learned counsel that only a receiver was appointed in this case to dispose of the partnership assets which cannot be sold as no offer was received for the reasons stated in the report of the receiver, during last 10 years. In any case the right of withdrawing a suit is also not affected on account of passing an interim order in suit in the nature of appointment of receiver, as in the instant case. Reference may be made to the case of Ahmed Rashid Khan v. Mst. Zubeda (1984 CLC 2851). I, therefore, order that the suit is allowed to be withdrawn with no orders is to costs. It may, however, be added that the learned counsel for the plaintiffs specifically requested at the time of hearing for an order of simple withdrawal of suit and nothing else. The suit, is therefore, dismissed as withdrawn.
8. ' In view of the fact, that defendant No,24 has not filed any application as contemplated by Rule 159 of Sindh Chief Court Rules (O.S.), the two applications (C.M.A. Nos.4802 and 5041 of 1986) are dismissed as not entertainable. Even otherwise, the case does not fall under Order 1, rule 10, C.P.C.
9. As it is not a case of any party improperly joined or a wrong person, whether as plaintiff or defendant, or of any person who ought to have been joined, whose presence, whether as plaintiff for defendant, is necessry to adjudicate upon the question involved in the suit. The power under Order 1, rule 10, C.P.C. For transposition cannot be exercised at the instance of a party as a matter of right, and even under section 151, C.P.C. I do not feel that it is a proper case in which the Court should exercise its power for transposition of defendant No,24 as plaintiff. Transposition would raise a question of limitation as a right under section 29(2) of the Partnership Act, 1932, if any, accrued to defendant No,24 on 19-9-1978 when the partnership stood dissolved, on expiry of 30 years period fixed in the partnership deed. A question may also arise as to the payment of court-fees. Besides, it seems that the nature of the suit would also undergo a change if, the said defendant is transposed as a plaintiff, as it cannot be continued as a suit for dissolution of partnership. Even if it is going to be a suit for rendition of accounts, admittedly an earlier suit No,159/64 for rendition of accounts between the same parties is already pending, wherein a Commissioner has already been appointed for taking accounts from the parties including the said defendant and an interim report has already been submitted by the Commissioner, wherein defendant No,24 is reported to be liable to certain amount of money to the plaintiff and some of the defendants. Reliance is placed on the case of Sirajuddin v. Umtul Rauf (PLD 1977 Karachi 933). The said defendant may however, file a separate suit for rendition of accounts if so advised and is permissible in law.