2012 PLP 640 (CLC)

CH. SHAHID SAEED, J.

This Regular Second Appeal has been filed against judgment and decree dated 17-9-2010 passed by learned Additional District Judge, Jhang who dismissed the appeal of the appellants and upheld the judgment and decree dated 12-12-2008 passed by the learned trial court whereby the suit for rendition of accounts filed by respondent No.1-plaintiff was decreed.

2. The precise facts scanned from the record are that respondent No.1 Ghulam Sarfraz filed a suit for rendition of accounts on 27-7-1993 against the predecessor-in-interest of the present appellants and one other regarding House No.418-MC Taxation No.332, Block X, Mohallah Sahianwalia, near Mosque Qutab-ud-Din Wali, Jhang Saddar measuring 7-1/4 marlas. It was alleged in the plaint that the suit property was originally owned by predecessor-in-interest of the parties Muhammad lnayat who expired on 2-9-1979. After death of Muhammad Inayat, the property devolved upon his legal heirs: the plaintiff-respondent No.1 Ghulam Sarfraz, present appellant-defendant No.1 Ghulam Shabbir being sons, Mst. Iqbal Begum and Mst. Kalsoom Akhtar being daughters and Mst. Jind Waddi, mother of the parties and widow of the deceased. Afterwards, Mst. Jind Wadi gifted away her 1/8 share vide registered gift-deed dated 1-4-1992 and Mst. Kalsoom Akhtar sold out her 7/48 share vide registered sale deed dated 1-4-1992. The plaintiff, therefore, averred that he is owner to the extent of 27/48 while the present appellant-defendant No.1 and defendant No.2 Mst. Iqbal were owners to the extent of 21/48 shares out of the total disputed property. The plaintiff further stated that he proceeded to Saudi Arabia in the year 1979 till September 1991. The disputed property inter alia consisted of 7 shops which were in possession of defendant No.1 who received rent in respect of Shops Nos.1, 3 and 4 from July, 1979 to December, 1991 and in respect of Shops Nos.2, 5, 6 and 7 from July, 1979 to December, 1992. When the plaintiff after return from abroad in 1991 demanded his share of rent, the appellant refused, so the present suit for rendition of accounts was filed.

3. The suit was strongly opposed by the defendant No.1 (predecessor-in-interest of the present appellants), however, defendant No.2 did not put appearance before the court and was proceeded against ex parte. Out of divergent pleading of the parties, the issues were framed. After recording oral as well as documentary evidence adduced by the parties, the learned trial court decreed the suit of the plaintiff-respondent No.1 vide judgment and decree dated 12-12-2008. Feeling dissatisfied, the appeal was preferred which was dismissed by the learned first appellate court. Hence this R.S.A.

4. Learned counsel for the appellants inter alia contends that the suit of the plaintiff was not maintainable. Firstly, the plaintiff and predecessor-in-interest of the appellant are brothers and the suit property devolved upon them along with others on 2-2-1979 when their predecessor Muhammad Inayat expired, so the plaintiff being joint owner was aware about the rent, if any received by the appellants, since 1979 but he remained mum till 1993 when he brought two suits first for partition of the property on 21-1-1993 and the second (instant) for rendition of accounts on 27-7-1993 , so, the suit was badly barred by time which aspect has totally been ignored by the learned lower courts below. Secondly, the plaintiff was bound to claim all the reliefs in one suit as required under Order II, Rule 2, C.P.C. while he has instituted separate suits for partition and rendition of accounts, so the suit was also not maintainable under Order II, Rule 2, C.P.C. He avers that the impugned judgments and decrees are illegal and unlawful, therefore, the same be set aside.

5. On the other hand, learned counsel for respondent No.1-plaintiff have opposed the contentions of learned counsel for the appellants and fully supported the impugned judgments and decrees.

6. Despite notice, none appeared on behalf of respondents Nos.2 and 3, as such, they are proceeded against ex parte.

7. The arguments advanced from both sides have been heard and record also perused.

8. Learned counsel for the appellants have only raised the questions of maintainability of the suit in hand on two grounds: first, it was barred by limitation and second, under Order II, Rule 2, C.P.C., the plaintiff was obliged to file one suit for partition and rendition of accounts. No other point has been raised by the appellants' side.

9. In para 12 of the plaint, the plaintiff-respondent No.1 has stated that in the year 1979, he proceeded to Saudi Arabia and remained there till September, 1991. After reaching Pakistan, he demanded his share in the rent of the shops being received by the appellants/their predecessor and on refusal, he was compelled to file the suit for rendition of accounts. As regards raising question of limitation in the first instance, the learned trial court under section 3 of the Limitation Act, 1908 was bound to consider the limitation at his own even though not raised by any side. If it is not considered earlier, the appellate court is entitled to look into the same. This aspect of the matter has minutely been considered. There is no denial that respondent No.1 was residing outside Pakistan and came back in 1991 where after, he demanded his share and when the appellants denied his right and refused to give him his share of rent, he filed the instant suit. So, I am of the considered view that the cause of action accrued when the share of the plaintiff was refused and the limitation started as such and not from the year 1979, therefore, the suit was fully within time and not barred by limitation in any manner.

10. The next and final contention of learned counsel for the appellants was that the suit was also not maintainable under Order II, Rule 2, C.P.C. as it arised out of the same property for the partition of which the plaintiff had already instituted a suit on 21-1-1993, so the plaintiff was bound to claim the relief of rendition of accounts through the same suit and could not file a new suit. I have considered this aspect carefully. Order II, Rule 2, C.P.C. restricts filing different suits for various reliefs coming out of one cause of action. However, situation is different here. The partition of the property, in my view, is one cause of action when someone feels aggrieved about the same while rendition of accounts regarding mesne profits/rendition of accounts of the same provides another cause of action to an aggrieved party. It is evident from the record and also not denied by any side that the appellants are enjoying the possession of the suit shops/property and are in receipt of the mesne profits since 1979. When the plaintiff came back from abroad, he started raising his claim for his shares in the rent, which was denied. The appellants are receiving the rent till date without giving his due share to respondent No.1-plaintiff. So, I am of the considered view that whenever the right is refused, the cause of action is created and in the case in hand particularly, there is a recurring cause of action as the appellants are still denying the share of respondent No.1 in the rent of the suit shops. So, there is no cavil that partition of the property and mense profits/rendition of accounts are different causes of action and can be filed separately and Order II, Rule 2, C.P.C., does not bar the same in any manner. Furthermore, there are concurrent findings of law and facts against the present appellants who have miserably failed to repel the assertions of the plaintiff. In the circumstances, I find no illegality, misreading or non-reading of evidence in the impugned judgments and decrees, as such, they are maintained.

11. For what has been discussed above, this R.S.A. has no merit, hence dismissed. H.B.T./G-59/L Appeal dismissed.