2011 PLP 121 (YLR)

SYED SAJJAD HASSAN SHAH, J.

Nazeer Ahmed and 9 others have challenged the judgment and decree passed by learned District Judge, Peshawar dated 27-5-2010, whereby, appeal filed by the respondents against the judgment and decree dated 7-12-2009 passed by learned Civil Judge-II, Peshawar was accepted and the case remitted to the learned trial court for disposal on its merit in accordance with law. (1) Brief facts of the case are that:- The plaintiff/respondent has filed a suit seeking decree for recovery of Rs.6,84,000 as rent for the period commencing from 4-4-1979 till September, 2007 at the rate of Rs.2,000 per month. Plaintiff/respondent filed the present suit on the ground, that earlier suit bearing No.467/1, whereby the possession through specific performance of agreement was prayed for, was decreed on 1-11-2000, and the possession of the suit property was delivered by the execution of decree. The present defendants/petitioners filed an application for rejection of plaint on the ground that cause of action in both the suits is the same, therefore, present suit is not maintainable, as hit by the provisions contained in Order II, Rule 2 of the C.P.C. The application was contested by the plaintiff/respondent by filing their written reply. Learned trial court accepted the application and rejected the plaint, the plaintiff/respondent feeling aggrieved of the judgment and decree assailed the same by way of appeal before the District Judge, Peshawar, the same was accepted and the case was remanded back to the learned trial court for decision on merits.

2. Learned counsel for the petitioners vehemently argued that learned appellate court erred in law while setting aside the judgment and decree passed by the learned trial court, as the suit of the plaintiff/ respondent was apparently hit by the provisions of Order II, Rule 2 of the C.P.C. The plaintiff/respondent was legally bound to ask for all the available relief at the time of institution of earlier suit, but failed to claim the relief sought in the present suit, therefore, suit of the plaintiff/respondent was not maintainable, thus, the judgment and decree of the learned appellate court may be set aside and that of learned trial court may be restored.

3. The submissions made by the learned counsel for the petitioners are misconceived and not supported by the documents brought on record, the plaint of Suit No.467/1 available on record instituted on 10-4-2000 and was decided on 1-11-2000, filed by Nasesr Ahmed plaintiff against Malik Wazir Muhammad the predecessor of the petitioners and one Malik Bashir Ahmed seeking the decree for possession through specific performance of an agreement dated 4-4-1979 on the ground that the sale transaction was effected with the present petitioners and one Malik Bashir Ahmed at the rate of Rs.8000 per marla, Rs.2500 was paid as advance money, in. pursuance thereof, the possession was delivered to the plaintiff respondent the right of ownership accrued to the plaintiff/ respondent when the decree was passed in his favour. In earlier suit, the present plaintiff/respondent was debarred to seek the recovery of rent on the basis of unregistered sale-deed, same not being a title deed, therefore, the relief under discussion could not be claimed, however, after the decision of the case, unregistered deed merged into decree of the court, therefore, the vendee can claim all the vested rights in the property being a lawful owner. In such circumstances, the plaintiff/ respondent was not entitled to seek for any relief, entitlement or benefit in the suit property muchless to seek the recovery of rent, therefore, in my view the entitlement of the plaintiff/respondent would take effect from the date of passage of decree in his favour, ratio laid down in a case titled Mst. Nazima Begum and another v. Mst. Hasina Begum and others reported in 1991 SCMR 177.

4. In such circumstances, the suit of plaintiff/respondent is maintainable not barred by the provisions contained in Order II, Rule 2 of the C.P.C. The provisions of Order II, Rule 2 of the C.P.C. are re-produced as under:-- "Suit to include 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. Relinquishment of part of claim

(2) Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of the claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. Omission to sue for one of several reliefs

(3) 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 if 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".

5. Perusal of above referred provisions of law clearly specifies that the plaintiff shall include those claim in his plaint to which he is entitled regarding the same cause of action. Now visualizing the provisions ibid in the light of pleadings of the earlier suit of the plaintiff/respondent, the only available cause of action was regarding the Specific Performance of the Sale Agreement, by then he was not entitled to seek the relief for the recovery of rent. There is no embargo contained in all the three sub-rules listed under Rule 2 of the Order II of the C.P.C. that the plaintiff who if legally was not entitled to seek a relief in the earlier proceedings he cannot ask for those reliefs in subsequently filed suit.

6. Since the claim of rent in the instant suit is based upon a quite distinct and different cause of action and same was not available at the time of filing of earlier suit. The cause of action connotes that "the bundle of facts pleaded by the plaintiff and if traversed by the defendant, the plaintiff is bound to prove those facts in order to obtain the decree in his favour, if he fails the defendant has the right to ask for the decree from the court". It is not a single fact which constitutes the cause of action, there are more than one facts, pleaded and on furnishing proof, the cause of action matures, and the decree can be passed. In this aspect of the case reference can be made to the case reported in PLD 1985 Karachi 481 titled Muhammad Azam v. P.E.C.H.S. Limited. (p) Civil Procedure Code (V of 1908)

O. II, R. 2

Bar under Order II Rule 2 being in nature of exception to right of a party has to be strictly construed and has not to be lightly inferred. (q) Civil Procedure Code (V of 1908)

O. II, R. 2

Suit for possession

Claim for future mesne profits not included in suit far possession

Separate subsequent suit for mesne profits, held, not barred under Order II, Rule 2, C.P. C.

7. It is observed that the defendants/ petitioners are at liberty to agitate the objection under Order II, Rule 2 of the C.P.C. in the written statement and learned trial court will decide the same after recording of the evidence in accordance with law, the learned trial court, while deciding the case shall consider whether the plaintiff/respondent can claim the rent of the disputed property from the date of agreement or the decree in his favour passed by court on 1-11-2000 or within the limitation prescribed under the law.

8. In view of the above discussion, the judgment and decree passed by the learned appellate court is in accordance with law and not suffering from any legal infirmity, whereas, the judgment and decree passed by the learned trial court is against the provisions contained in Order II Rule 2 of the C.P.C., therefore, rightly set aside by the learned appellate court.

9. This petition is, hereby, dismissed as without being any substance in limine, with no order as to costs. S.A.K./285/P Revision dismissed.