P L D 2021 Balochistan 67 (PLP)

ABDUL HAMEED BALOCH, J.

This Revision Petition is directed against the order dated 09.10.2015 and 25.02.2017, passed by the learned Senior Civil Judge Pishin ("trial court") and the learned Additional District Judge, Pishin ("the appellate court") respectively, whereby the Suit for Possession, Mesne Profit and Permanent Injunction, filed by the petitioner was dismissed, against which the appeal filed thereon was dismissed by the appellate court.

2. Brief facts leading to file the instant petition is that the petitioner filed a Suit for Possession, Mesne Profit and Permanent Injunction before the trial court with the following prayers: "It is, therefore, accordingly respectfully prayed that keeping into consideration the above facts and circumstances, a decree may kindly be passed in favour of plaintiff against the defendants in the following terms. (a) To direct the defendants Nos.1 to 2 to hand over the vacant possession of property Khasra Nos. 186, 188, 190 measuring 5 rod 28 pole situated at Mahal and Mauza Mian Khanzai, Tapa Manzaki, Tehsil and District Pishin to the plaintiff. (b) To direct the defendants Nos.3 to 9 to hand over the vacant possession of property bearing Khasra Nos.347, 378 measuring 1 rod 28 pole situated at Mahal and Mauza Mian Khanzai, Tapa Manzaki, Tehsil and District Pishin to the plaintiff. (c) To direct the defendants Nos. 1, 2 and 10 to 16 to hand over the vacant possession of one share i.e. 142 rode 16 pole of property bearing Khewat Khatooni Nos. 36/36 and 59/59 out of total property i.e. 48 shares i.e. 6836 rod 8 pole to plaintiff, disruption whereof has been given in Para-5 of plaint. (d) To declare that private defendant being in illegal possession of suit and is liable to pay mesne profit to plaintiff at the rate of one hundred thousand per year by each defendant from 2006 upto realization of suit. (e) Any other relief may be granted in favour of plaintiff deems fit and proper in the circumstances of the case. (f) Cost of the suit may also be awarded.

3. The defendants Nos. 1 and 2 contested the suit by way of filing written statement and submitted that the suit of the plaintiff/petitioner is not maintainable under Order II, Rule 2, C.P.C. as the plaintiff has previously filed a Suit No.09 of 2008 in respect of the same subject matter.

4. The defendant No.10 filed a separate written statement and refuted the claim of the plaintiff.

5. The trial court out of the pleading of the parties framed issues and additional issue and directed the parties to argue on the additional issue, which is based on legal objection "D" of the written statement of dependents Nos.1 and 2, which reads as under: "That the suit is not maintainable in view of Order II, Rule 2, C.P.C. which say that the suit should include the whole claim and once a person waives of any portion then he cannot subsequently file suit over the waived off portion, on this ground too, the suit under reply is liable to be dismissed."

6. The trial court after hearing the parties, vide order and decree dated 09.10.2015 dismissed the suit, which reads as under: "Suit of the plaintiff is dismissed under Order II, Rule 2, C.P.C."

7. The petitioner being aggrieved of the order passed by the trial court, filed an appeal before the appellate court, which was dismissed vide judgment dated 25.02.2017. Hence this petition.

8. Notices were issued to the respondents but despite service of summon respondents Nos.13 to 15 did not appear, as such they were proceeded against ex-parte. On 04.09.2020 the petitioner filed an amended title by impleading the legal heirs of respondents Nos. 9, 11 and

12. Since this matter pertains to the year 2017 and short point is involved in the same, therefore the same cannot be kept pending for indefinite period, as such, I am left with no other option but to hear the learned counsel for the petitioner and learned A.A.G. and to decide the same on the basis of available record.

9. Heard. Perused the record. The record transpires that the petitioner field a Suit for Possession, Mesne Profit and Permanent Injunction, stating therein that the petitioner is recorded owner of the property bearing KhataiKhatooni No.35/35, 9 Qitat, Khata/Khatooni No.36/36 and Khata/Khatooni No.59/59, shamilat share of the plaintiff is one share out of 48 shares, whereas his father was deprived by the predecessor of defendants Nos.1 and 2 in the revenue record in Khatas mentioned above. The record further reveals that previously the plaintiff filed a Civil Suit No.09/2006, which was decreed and the appeal was met with the same fate, whereas the decree passed in Civil Suit No.09/2006 was acted upon. Thereafter the petitioner filed the instant suit. It would be appropriate to reproduce Order II, Rule 2, C.P.C: (2) 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. Under the aforementioned rule, the splitting of claim is not permissible, all the claim based on same cause of action should be include in one suit. The object of Rule 2 of Order II, C.P.C. is to prevent further litigation between the same parties over the same cause of action, where the plaintiff relinquishes the claim which was available during previous suit, cannot be suit in part left of the property subsequently. The petitioner/plaintiff previously filed Suit No.09/2006 in respect of the legacy of his father which attained finality. Order II, Rule 2(2), P.P.C. provides that every suit must include all claim to which plaintiff is entitled in respect of same cause of action. It is quite evident from above referred sub-rule (2) of rule 2 as the same was devised to prevent a party from splitting up of its claim arising out from the same cause of action against the same party. Under Order II, Rule 2(2), C.P.C., if the plaintiff omit or relinquishes any part of his/their right, entitlement, he/they precluded from agitating the relinquish part of claim in subsequent suit. Reliance is placed on the case of Safdar Ali v. Muhammad Nawaz 2006 YLR 1137, whereby it has been held as under:

10. Second argument of petitioners' counsel is irrelevant because there is no material on record on the basis of which it may be inferred that Courts in the previous round of litigation had no jurisdiction and lawful authority to decide the matter which was before them. It was not denied that in the previous suit, the petitioners had challenged validity of Mutation No.155 to the extent of land measuring 12 Marius only. Petitioners did not assail the mutation to the extent of remaining land, which was allegedly purchased by them through oral sale and had also omitted to assert that shares of the respondents were not correctly reflected in the said mutation. They were therefore clearly debarred from again challenging that mutation on the grounds which were relinquished by them. Their subsequent suit C was therefore squarely hit not only by Order II, Rule 2, C.P.C. but also by constructive res judicata under Explanation IV of section 11, C.P.C. In another reported case titled Syed Basharat Hussain Shah Gillani and 3 others v. The Azad Government of the State of Jammu and Kashmir 2018 YLR 31, it has been held as under: "

9. Now, the petitioners, by filing the instant writ petition, have sought the same remedy in respect of the rent amount which is not permissible under law. Under Order II of C.P.C., a plaintiff must include the whole of the claim for which he is entitled, with regard to the same cause of action. Under rule 2 of the said order, when a plaintiff intentionally relinquishes any portion of his claim he cannot sue in respect of that portion, afterwards. So, the reference of the petitioners, when was filed, the cause of action was the same as shown in the instant writ petition and on the same cause of action, the petitioners claim enhancement of the rent amount and substantially, in this writ petition, they have also claimed the same relief (i.e. increase in the rent amount) with the ratio of 25% after every three years." In view of above, I am of the considered opinion that both the Courts below have come to the right conclusion that the suit of the petitioner/plaintiff hit under Order II, Rule 2, C.P.C. The petitioner has failed to point out any illegality and irregularity in the concurrent findings of courts below, warranting interference by this Court. Hence, the petition is dismissed accordingly. MQ/67/Bal. Revision dismisse