2001 PLP 865 (MLD)

MUHAMMAD ALAM KHAN (MEMBER).‑‑‑On 7‑11‑1997 Elahi Bakhsh complainant filed a complaint in the N.‑W.F.P., Bar Council Peshawar, alleging therein, that the respondent Sheikh Muhammad Shakeel, Advocate D.I. Khan was, engaged by him as a counsel in a civil suit titled Mst. Sabro daughter of Ghulam Hyder and others v. Abdul Sattar and others which was pending in the Court of Civil Judge, D.I. Khan in which the complainant was an attorney for the plaintiffs. It was further alleged that alongwith the above mentioned civil suit some other cases were also entrusted to the respondent. The fee of the respondent was mutually settled between the parties and the same was paid to the respondent, thus the relationship of counsel and client came into existence between the complainant and the respondent. It was further alleged, in the complaint, that the respondent Advocate got in, league with the opposite party and in collusion with them withdrew the civil suit, without obtaining any instructions from the complainant and without any intimation either to the plaintiffs or to the complainant. Thus, the respondent has committed professional misconduct within the ambit of the provisions of Legal Practitioners and Bar Councils Act, 1973 and Rules framed thereunder and prayed for taking disciplinary action against the respondent, under the above said law.

2. The Disciplinary Committee of the N.‑W.F.P., Bar Council Peshawar initiated proceedings against the respondent and the respondent submitted written statement, wherein the allegations of the complainant as reflected in the complaint were denied. It was however, averred that in fact the respondent was engaged as counsel by the complainant for the plaintiffs in the capacity as special attorney in a civil suit titled Mst. Sabro and others v. Abdul Sattar and others which was then pending in the Court of Civil Judge, D.I. Khan but on 12‑5‑1997 an application was submitted by the complainant for the withdrawal of the suit unconditionally, as according to the complainant, parties had arrived at a private settlement and the matter had been compromised and the learned Civil Judge on 12‑5‑1997 recorded the statement of Elahi Bakhsh complainant and dismissed the suit being satisfied that the parties have arrived at a private settlement.

3. The Disciplinary Committee of the N.‑W.F.P., Bar Council Peshawar after recording of evidence of the parties pro and contra as they wished to adduce and after hearing the parties, dismissed the complaint by a detailed order dated 28‑3‑1998.

4. The complainant being aggrieved of the order of the Disciplinary Committee of the N.‑W.F.P., Bar Council, Peshawar submitted an application/appeal directly to this Tribunal upon which a notice was issued to the respondent and during the course of. proceedings respondent wished to submit a reply, consequently the respondent filed the reply and learned member of this Tribunal Syed Rahman Khan was empowered to record evidence which was recorded.

5. Before us the complainant/appellant reiterated the same contention as put forward by him before the Disciplinary Committee of the N.‑W.F.P., Bar Council Peshawar and submitted that the respondent without seeking any instructions from the appellant and in league with the opposite side i.e. Abdul Sattar etc., defendants, withdrew a pending suit titled Mst. Sabro etc., v. Abdul Sattar etc. and thus deprived the appellant of his valuable rights in the suit‑land. On the other hand the respondent vehemently contended that the suit was withdrawn under the instructions of the complainant. So much so, that when the withdrawal application was drafted, it was taken by the complainant to the plaintiffs to Chak No.87/TDA Tehsil Karor District Layya, Punjab and got their thumb impressions on the withdrawal application and thereafter, the same was submitted to the Court of learned. Civil Judge, D.I. Khan.

6. Perusal of the record would reveal that the application for withdrawal was submitted by the complainant to the Court of Civil Judge, D. I. Khan, the learned Civil Judge recorded the statement of the complainant in the capacity of special attorney for the plaintiffs duly identified by the respondent Advocate before the Court on 12‑5‑1997 and the Court after satisfying itself regarding the genuineness of the compromise dismissed the suit of the plaintiff as withdrawn. It was an independent act of the special attorney for the plaintiffs and no embargo can be placed on the right of a party to withdraw an action or abandon his claim against all or some of the defendants in the suit under the provisions of Order 23, Rule 1, C.P.C.

7. The appellant/complainant also challenged the withdrawal order in the suit through an application under the provisions of section 12 subsection 2, C.P.C. on the basis of fraud, collusion, misrepresentation and want of jurisdiction, which after judicial scrutiny was dismissed by the learned Civil Judge, D.I. Khan on 12‑1‑1998 and the appeal/revision of the appellant also failed before the learned District Judge. D.I. Khan in Appeal No.RCA 11 of 1998 decided on 9‑6‑1999 and thus, the order of withdrawal was judicially scanned and maintained by a Court of competent jurisdiction and this Tribunal cannot sit as a Court of appeal on those orders which have legally attained finality.

8. Keeping in view the facts and circumstances of the case narrated above there is no force in the present appeal which is hereby dismissed with no order as to costs. H.B.T./237/P Appeal dismissed.