1996 PLP 1672 (CLC)

2. The facts briefly are that a suit was instituted by the respondent in the Court of Sub‑Judge, Kotli on 11‑8‑1992 for the recovery of possession of land measuring 17 Marlas, comprising in Survey No.565 and a further prayer for permanent injunction for restraining the defendant from interfering with the plaintiff's possession was also made.

3. It was stated in the plaint that land measuring 12 Kanals, and 12 Marlas in Survey No.565 is the property of plaintiff. The defendant had. raised plinth for construction of a shop over the plaintiff's property. When the plaintiff got the knowledge, he‑ got his land demarcated and thereupon it was found that plinth was over 1 Marla of land moreover the 16 Marlas of the other land was also in the, possession of the defendant which he had occupied but the plaintiff had no knowledge that it was his property. Since the defendant wanted to construct a shop a temporary injunction was also prayed for alongwith prayer for recovery of the possession. The defendant‑appellant before this Court took an objection that a suit instituted by Muhammad Iqbal against Muhammad Sharif and others on 18‑9‑1989, in respect of land measuring 12 Kanals and 12 Marlas comprising in Survey No.565 has been withdrawn by the plaintiff, therefore, present suit is not maintainable.

4. The Court after striking an issue held that the second suit was not maintainable. It was held by the Trial Court that the suit earlier instituted and withdrawn without permission for filing the fresh suit, bars second suit in respect of the same subject‑matter. The principle of constructive res judicata provided in section 10 of the C.P.C. applies.

5. I have heard the learned counsel for the parties and perused the record of the case.

6. The counsel for the appellant argued, that in the first suit, the appellant prayed for a permanent injunction in respect of land measuring 12 Kanals and 12 Marlas, comprising in Survey No.565 for restraining the defendants Muhammad Sharif, Muhammad Latif, Mahandi and Fazal Ellahi from interfering with the possession of the plaintiff and he also prayed for restraining them, from raising any construction in the suit land. Some proceedings were taken in this case, when the plaintiff felt that some portion of land which was in the possession of defendant should be recovered through the Court but there was no prayer in the suit for recovery of possession. He instead of seeking an amendment in that suit, with mala fide intention brought another suit on 11‑8‑1992. Later on, without any prayer for permission to file a fresh suit or for a continuation of second suit, withdrew the first suit on 19‑8‑1992. According to the learned counsel the second suit was not maintainable. The counsel for the appellant further argued that plaint was liable to be rejected under Order 7, Rule 11, C.P.C. The counsel for the appellant cited 1990 MLD 1652, 1991 MLD 2369 and also referred to the provision of sub‑rule (3) of rule 1 of Order 23 of the C.P.C. 7. , The counsel for. the respondent controverted the arguments of the 1V.' learned counsel for. the appellant, stating that the principle of res judicata was not applicable to the instant case, as no decision on merit had been taken on the earlier suit. The present suit was instituted during the pendency of the earlier suit, therefore, the plaintiff was not precluded from continuing the later suit. The learned counsel cited AIR 1930 Lah. 599 and PLD 198f Lah

33. He also tried to distinguish the application of provision of Order 7, Rule 11 and Order 23, Rule 1 of the C.P.C.

8. I have considered the arguments of the learned counsel for the parties. To appreciate the position of this case I think that provisions of Order 2, rule 2, of the C.P.C. should also be kept in view which' is reproduced below:‑‑ "Suit to include the whole ,claim.‑‑(1) Every "suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court. (2) Relinquishment of part of claim.‑‑ Where a plaintiff omits to sue in respect of or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. Omission to sue for one of several reliefs.‑‑A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but it he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted. " The provision of Order 2, rule 2 of the C.P.C. requires a .plaintiff to include the whole 'claim and all such reliefs against the defendant in respect of a f1 cause of action and if a portion of the claim is omitted he shall not be entitled to a relief to the extent in any later proceedings. Plaintiff Muhammad Iqbal who brought a suit on 18‑9‑1989, in respect of land measuring 12 Kanals and 12 Marlas comprising Survey *No.565 had to,claim relief of all type to which he was entitled. If the possession of ' a portion of land was with any one of the defendant, the recovery of the same could be claimed in the same suit and not through a subsequent suit. The earlier suit remained pending up to 19‑8‑1992. If at any time up to 19‑8‑1992, the plaintiff came to know that land measuring 17 Marlas was in possession of Muhammad Latif, he could have sought relief for that through amendment in the same suit or alternatively he could withdraw that suit with permission to bring fresh 'suit alongwith the prayer for recovery of possession. The plaintiff failed to take any one of the aforestated steps. The law referred by the counsel for the plaintiff‑respondent does not support his case. Those cases are distinguishable from the present situation. On the other hand, the cases cited by counsel for the appellant namely: 1990 MLD 1652 and 1991 MLD 2369 are relevant to the issue and fully support the contention of the appellant. The plaintiff has omitted in earlier suit the claim for the recovery of possession which he could make even up to 19‑8‑1992 when the suit was withdrawn. His claim shall be treated to have been relinquished within the meaning of Order 2, rule 2 of the C.P.C. The suit brought on 18‑9‑1989 was withdrawn without the prayer for bringing any fresh suit, therefore, any suit requiring trial after that date whether instituted before the date or later shall not be maintainable, as provided under Order 23, rule 1, sub=clause (3) of the C. P. C. . . As upshot of the above, accepting the appeal the judgment and decree of the District Judge, Koth dated 27‑4‑1995 is set aside 'and the judgment and decree of the Sub‑Judge dated 31‑7‑1994 is restored. A.A./88/AJ&K Appeal accepted.