1991 SCMR 1957

ORDER

ABDUL QADEER CHAUDHRY, J .---Leave to appeal is sought against the judgment of the High Court of Balochistan, dated 26-9-1990.

2. The facts, briefly stated, are that a suit for declaration and injunction for correction of entries was filed by the petitioners under the provisions of Civil Law (Special Provisions) Ordinance 1 of 1968. The suit was withdrawn with the permission of the Court. The petitioners again filed a civil suit in the same forum which was dismissed by it. On the direction of the High Court, the plaint was returned for presentation to the proper forum. The suit was filed in the Court of Senior Civil Judge which was dismissed on 5-4-1984 on the ground that the plaintiffs had requested for withdrawal without seeking the permission for filing a fresh suit, so they were precluded from filing a fresh suit. In appeal, the Additional District Judge, reversed the order and remanded the case to the trial Court with the direction to decide it on merits vide order, dated 28-10-1986. This order was challenged before the High Court. The High Court accepted the Revision Petition, set aside the order of the Additional District Judge and restored that of the Senior Civil Judge. (Incidentally one of us Abdul Qadeer Chaudhry, J. was the author of this judgment). A Petition for Leave to Appeal No.35-Q of 1987 was filed in this Court which was dismissed on the ground of limitation. The petitioners, thereafter filed an application under section 14 of the Arbitration Act, with a prayer that a notice be issued to the parties and the arbitrator with the direction to file the arbitration award in the Court. This application was dismissed by the Senior Civil Judge on the ground that there was no written arbitration agreement between the parties and the application was also filed beyond the period of limitation. This order was affirmed by the District Judge on 29-3-1990. These orders were challenged in the revision petition before the High Court. The High Court also dismissed the Revision Petition.

3. It may be pointed out that in the first round of litigation, the petitioners had withdrawn the suit on account of private settlement. The agreement and the order made thereon are reproduced hereunder:-----

4. In the civil suit filed on 2-7-1983, the petitioners had averred that the parties had appointed Malik Haji Abdur Rahim as arbitrator and the arbitrator had given an assurance to the plaintiffs that he would settle the matter and the plaintiffs withdrew the suit, but thereafter the defendants resiled from their earlier agreement and the arbitrator in view of their conduct, showed his inability to proceed with the matter. The defendants in their statement had admitted about the settlement of the dispute between the parties. It is, therefore, clear that the earlier suit was withdrawn by the petitioners as the dispute was to be resolved through the mediator/arbitrator but on account of the conduct of the respondents as alleged by the petitioners, the arbitrator could not proceed with the matter. As such, our first impression is that a fresh cause of action has accrued to the petitioners and in the earlier judgment, this point escaped the notice of the Courts. In the earlier round of litigation, the matter was disposed of on technical ground. We grant leave to appeal to consider whether the fresh suit, in the above circumstances, was barred by law.

Security Rs.5,000.

AA./K-170/S Leave granted.