P L D 1959 (W (PLP)

This is an application in revision against an order of the learned Chief Judge, Karachi Small Causes Court dismissing a suit on the ground that a previous suit instituted on the same cause of action had been withdrawn without permission to file a new suit. The plaintiff‑applicant is an electrician. He had been according to his allegation, carrying on the work of pumping water in a building owned by Akbar Ali, respondent No.15 and occupied by the other 14 respondents as tenants of respon dent No.

15. The previous suit had been filed by the application for recovery of the amount Lu which he was entitled on accept of this work. In that suit respondent No. 15 alone was the defendant. At a very late stage of that suit counsel for the applicant stated that he wanted to withdraw the suit at which the Court passed the following order :‑ " At this stage the plaintiff and his advocate state they wish to withdraw this suit, granted. Suit dismissed with no order as to costs." In the present suit which was filed against the tenants as well as the landlord the allegations are that all the defendants had agreed to pay the plaintiff for maintaining the water supply. An objection was taken on behalf of the defendants to the maintainability of the suit on the ground that a previous suit on the same cause of action had been dismissed. Two pleas were raised before the learned Judge on behalf of the plaintiff in reply to this objection. The first was that the Court which had decided the suit had in the order reproduced above permitted the plaintiff to file a fresh suit on the same cause of action. The second was that the defendant No. 15 was in this case only a proforma defendant and the suit could in any case proceed against the other 14 defendants. The same two contentions are repeated before me. As regards the first I have no hesitation in agreeing with the trial Court. The order of the Court in the previous suit does not say either that permission to file a fresh suit has been asked for or that it has been granted. The word `granted' used in that order refers only to the plaintiff being allowed to withdraw the suit. It is not necessary to decide whether this is a proper expression to use because the plaintiff has a right at any time to withdraw the suit. Had it been the intention of the Court to grant permission for filing a new suit it would have said so. There was no application in writing in which permission to file a new suit may have been prayed for. There was only an oral statement by the plaintiff and his counsel that they wanted to withdraw the suit. It is at the same time to be noted that there is no order as to costs. It is admitted before me that evidence of the parties had been closed in that case. If the Court intended to grant permission for the filing of a new suit there was no reason why it should not have burdened the plain tiff with costs or should not have made the filing of a new suit conditional on the payment of some costs. On the second contention, however, I agree with learned counsel for the applicant that a suit filed against one person cannot by itself be a bar to a suit against another. The words used in Order XXIII, rule 1 (3) are no doubt to the effect that a suit shall not be instituted in respect of such subject‑matter, but subject‑matter should have reference to the party against whom the suit is filed. Rule 1 (3) does no more than give effect to the ordinary principle that no person shall be vexed twice for the same cause. Section 11, Order IX, rule 8 and Order XXIII, rule 1 (3) are results of the application of this principle. But this princi ple, like res judicata, affects only parties or privies. A stranger to the suit does not in any way gain by the dismissal of the suit. If the previous suit had been dismissed on merits a second suit could not have been barred against defendants 1 to

14. There is no reason why the Legislature should attach to the withdrawal of a suit effects wider than those which attach to a dismissal on merits. If the applicant had just conceded in the first suit that the decision of the Court on all issues of fact was to be against him the suit would have been dismissed without the dismissal creating any bar to an action against defendants 1 to 14 in the present suit and there is no reason why a different result should follow if the suit was withdrawn. While in some wide sense the subject‑matter of the second suit may be said to be the same as in the first suit, we have, when we are determining whether a second suit lies, at least to confine this expression to the accrual of a cause of action. The present suit is based on agreements between the plaintiff and the defen dants. The previous plaint has not been produced in this case and it is not even known what the cause of action, :is stated in the previous suit, was. Assuming that it was an agreement alleged to have been entered into between the plaintiff and defendant No. 15 it would be based on cause of action different from agreements between the plaintiff and defendants Nos. 1 to

14. The plaintiff in this case alleges even separate agreements with some of the defendants. I am not saying that the dismissal of a suit against one person may not in some cases have the result of barring a suit even as against other persons but that will happen only where for the second suit the defendant of the first suit was a necessary party. By necessary party I mean a party without whose presence on the record the suit cannot be properly constituted. But in A such a case the suit against the other defendants will be dis missed not on the ground that a previous suit filed in respect of the same subject‑matter has been withdrawn but on the ground that the defendant in the first suit could not on account of the dismissal of the previous suit be made a party and without his presence on the record the suit could not proceed. As far as possible disputes should be determined on their merits. Technical objections should be discouraged and should be given effect to only where the results would be such as should on grounds of public policy be avoided. Learned counsel for the opponent has relied upon two judgments. The first is Ram Bharose v. Baramdin and others (A I R 1939 All.) But it is not even alleged that in that case the, second suit was filed against persons other than the defendant;. The second case is Kanshi Ram v. Rao Baldeo Singh arid another (A I R 1919 Lah. 206). In this case out of two defendants in the previous suit only one was made defendant in the second suit and a third person had been added as a defendant. There is no discussion at all in the judgment as to whether a suit withdrawn as against cane person bars a suit as against another person. This revision petition is accepted and the order of the Court below is set aside except with respect to respondent No.

15. The suit shall stand dismissed as against respondent No. 15 but will proceed against respondents Nos. 1 to

14. The opponents are not, however, debarred from taking a plea that respondent No. 15 is a necessary party to the suit. There is no order as to‑costs. K. B. A. Petition accepted.