2019 PLP 1466 (CLC)

GHULAM MUSTAFA MUGHAL, J.

The titled appeal by leave of the Court has been filed against the judgment dated 26.10.2017, passed by the Azad Jammu and Kashmir High Court in Writ Petition No.345 of 2014.

2. The precise facts forming the background of the captioned appeal are that the appellants, herein, filed a writ petition before the Azad Jammu and Kashmir High Court alleging therein that they are permanent employees of the Education Department. They are serving as Teachers/Lecturers in the Kashmir Model College and are paying the income tax regularly. It was further alleged that the appellants, herein, are receiving their salaries as per Government pay scales along with perks and privileges and their income tax is subject to the deduction at source under section 149 of the Income Tax Ordinance, 2001, as adopted in the Azad Jammu and Kashmir. It was averred that they are enjoying 75% tax rebate which is allowed to full time teachers as mentioned in part III, Division II, 2nd Schedule of the Income Tax Ordinance, 2001, since start of their service in Kashmir Model College, Mirpur. It was claimed that respondent No.5, herein, illegally issued notices to them to deposit 100% tax on salaries drawn by them. The writ petition was contested by the respondents by filing comments/written statement, whereby, they refuted the claim of the petitioners/appellants, herein. It was stated that earlier a writ petition was filed by the petitioners/appellants, herein, on the same cause of action which was dismissed by the High Court and the matter has been finalized up-to the Apex Court, hence; their writ petition is hit by the principle of estoppel. The learned High Court after hearing the preliminary arguments of the parties, through the impugned judgment dated 26.10.2017, has dismissed the writ petition in limine.

3. Mr. Babar Ali Khan, the learned Advocate appearing for the appellants argued that the impugned judgment of the learned High Court is illegal, erroneous and against law for the reason that the subsequent writ petition was filed on a different cause of action in which the vires of the legislation were challenged, hence, it cannot be said that at the time of earlier writ petition this cause of action was available to the appellants, herein. The, learned Advocate further argued that the principle embodied in Order II, Rule 2, C.P.C., can be judged in light of the provision contained in section 11 of the C.P.C. and when considered in juxtaposition, the question of res judicata or estoppel does not arise because earlier writ petition was not decided on merit. In support of his submissions, the learned Advocate placed reliance on the cases reported as Mahdi v. Muhammad Ramzan and 3 others [1994 MLD 686], Custodian of Evacuee Property and 7 others v. Tariq Mahmood Butt [2001 YLR 3139] and Abdul Ghafoor v. Chief Settlement Commissioner and another [1985 SCMR 464].

4. Conversely, Mr. Muhammad Rafique Dar, the learned Advocate appearing for the respondents argued that the appellants, herein, could challenge the vires of the legislation in the earlier writ petition but they did not include the relief to that extent, therefore, the subsequent writ petition was hit by the principle of estoppel as enshrined in Order II, Rule 2, C.P.C., and the learned High Court has rightly dismissed the writ petition. The learned Advocate further argued that splitting of the cause of action is not allowed by law because under law it is enjoined upon the party to include the whole relief at the time of filing of writ petition or suit, as the case may be. He further argued that as provisions of C.P.C. are applicable to the writ petitions, therefore, it cannot be said that the view taken by the learned High Court is erroneous or illegal. The learned Advocate submitted that the subsequent writ petition has been filed after a period of 4 months, therefore, the principle of laches is also attracted. In support of his submissions, the learned Advocate placed reliance on the case reported as Board of Trustees and another v. Muhammad Azam Durrani [2004 SCR 401].

5. We have heard the learned Advocates representing the parties and have perused the record with utmost care. A perusal of the record reveals that the appellants, herein, in the earlier round of litigation, have challenged the legality and correctness of the different assessment orders passed by the official-respondents, herein, through Writ Petition No.101 of 2013 instituted on 21.04.2013, on the ground that they have wrongly been assessed through the orders impugned therein. The learned High Court heard the parties and through the judgment dated 23.01.2014, dismissed the writ petition in limine on the ground that the petitioners/appellants, herein, have an adequate alternate remedy in shape of filing the appeal. The learned High Court for reaching the conclusion, placed reliance on the case reported as Abdul Rehman and another v. Income Tax Officer, Mirpur Circle and another [1993 CLC 1101]. The judgment dated 23.01.2014 was challenged through appeal before this Court which was dismissed vide judgment dated 24.04.2014. The appellants, herein, again challenged the legality and correctness of the same orders by filing a subsequent writ petition, however, they additionally challenged the vires of legislation i.e. provision contained in Part III, Division II, 2nd Schedule of the Income Tax Ordinance, 2001, as has been adopted in the Azad Jammu and Kashmir. The learned High Court after hearing the parties again dismissed the writ petition through the impugned judgment dated 26.10.2017, on the ground that the petitioners/appellants, herein, have earlier relinquished the relief to the extent of challenging the vires of the legislation, hence, they are not entitled to file subsequent writ petition on the same cause of action and their writ petition is hit by the principle of estoppel as embodied in Order II, Rule 2, C.P.C. The learned High Court placed reliance on Nawabzada Muhammad Zaman Khan's case [2014 MLD 1417], wherein, at page 1422 of the report, it has been observed as under:- "it is well settled law that party once approaching the Court for seeking relief shall seek all the relief to which it thinks is entitle to and if such relief, even if available but not asked for, cannot be claimed by filing a subsequent legal proceeding." The learned High Court also placed reliance on Haji Mir Alam Shah's case [2004 CLC 1100], wherein, the case was also dismissed on the same principle.

5. In order to appreciate the controversy in its true perspective, it appears necessary to consider the relief claimed in both the writ petitions in juxtaposition. In Writ Petition No.101 of 2013, decided on 23.01.2014, the following relief was claimed. "PRAYER It is, therefore, respectfully prayed that the writ petition may kindly be accepted and impugned Notices, Orders (P-4 to P-62) issued by respondent No.5 may kindly be quashed and rebate available in Part III, Division II of 2nd Schedule of Income Tax Ordinance, 2001 as adopted in the Azad Jammu and Kashmir be extended to the petitioners for being full time teachers working in an educational institution. Any other appropriate relief which this Court deems fit may also very kindly be granted with cost." In the subsequent writ petition, following relief was claimed by the petitioners/appellants, herein. "PRAYER: It is, therefore, respectfully prayed that the writ petition may kindly be accepted and impugned Notices Orders issued by respondent No.5 may kindly be quashed and the provisions of Part III Division II of second schedule of Income Tax Ordinance 2001, as adapted in Azad Jammu and Kashmir may kindly be declared to be against the fundamental rights of equality and non discrimination as envisaged in the Azad Jammu and Kashmir Interim Constitution Act, 1974. Furthermore, it may also kindly be directed to the respondent to treat the profession of teaching on equality without discriminating between Private or Government teachers and may also kindly be directed to give the tax rebate to the profession of teaching as a whole. Any other appropriate relief which this Court deems fit may also very kindly be granted with cost." A comparison of both the claimed reliefs makes it crystal clear that the main relief of the petitioners/appellants, herein, was regarding the assessment orders which were subject matter of both the writ petitions, however, in the subsequent writ petition, they have also challenged the vires of the impugned legislation on the basis of which the assessment orders were passed by the official-respondents, herein. It may be stated that this relief was available to the petitioners/appellants, herein, hence, could have been included in the earlier writ petition. Order II, Rule 2, C.P.C., postulates that every suit shall include the whole claim which the plaintiff is entitled to make in respect of the cause of action; but the plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of the Court. Sub-rule (2) of Order II of the Code of Civil Procedure provides that where the 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. Similarly, Order II, Rule 2, C.P.C., prohibits to split the cause of action and if a person is in possession of several cause of actions against the same defendant or same defendants jointly, he has to unite the cause of actions and cannot be allowed to file suit after splitting the same. In the present case, mere by adding the prayer for challenging the vires of the legislation which could have been challenged at the time of filing of the earlier writ petition, cannot provide the appellants, herein, separate cause of action. The contention of the learned counsel for the appellant that the matter is to be judged with reference to section 11, C.P.C., has no substance because section 11 of the Code of Civil Procedure deals with an independent situation and lays down the principle of res judicata. Even in that provision of law, where the relief was available but not claimed that would be deemed to have been waived and subsequently no separate suit can be filed after dismissal of the previous one on the ground of constructive res judicata. In this regard, reference may be made to the cases reported as Akbar Ali Malik v. Chairman, A.K. M.I.D.C. and others (1999 MLD 236) and National Bank of Pakistan v. Hashim Khan [1995 CLC 88], wherein, identical position was resolved in the same manner. The upshot of the above discussion is that finding no force in this appeal, the same stands dismissed. Nor order as to costs. ZC/35/SC(AJK) Appeal dismissed.