1989 PLP 2393 (CLC)

2. The facts leading to this petition briefly are that on 21‑9‑1983 Jewan petitioner filed a suit for declaration to the effect that Mutation No.128 dated 25‑7‑1981 being collusive, without jurisdiction and having been got attested through fraud, was illegal, void and inoperative against his rights. The suit was resisted, the plea of the suit being barred under the provisions of Order XXIII, rule 1(3), C.P.C. was also raised in the written statement. The trial Court framed issues and adjourned the case for the evidence of the plaintiff/petitioner. During the pendency of the trial, Hassan Muhammad respondent No.l filed application for the trial of issue No.8 as preliminary issue. Issue No.8 is as under:‑ "Whethcr the suit cannot proceed in view of the provisions of Order XXIII, rule 1 (3), C.P.C. as is averred in preliminary objection No.8 of the written statement filed by defendant No.2?" After hearing the parties, the trial Court dismissed it on the ground that since the previous suits were not decided on merits, therefore, the suit was not hit by the principle of res judicata. Feeling aggrieved thereby, the respondents filed revision, which was allowed by the learned Additional District Judge, Bahawalnagar, on 14‑5‑1989, rejecting the plaint as barred under Order 23, rule 1(3), C.P.C., hence this petition.

3. Learned counsel for the petitioner submitted that since the suit filed by the petitioner on 21‑9‑1983, was not in respect of the subject‑matter of the previous suits and it was for the first time that legality of Mutation No.128 attested on 25‑7‑1981 was challenged, therefore, the plaint has illegally been rejected.

4. I have considered the submissions made by the learned counsel with care. I have not been able to persuade myself to agree with him. Before filing the present suit, the petitioner had filed three suits with regard to the same property on different dates. On 29‑1‑1980, he filed a suit for declaration to the effect that he was owner in possession of the suit land which was dismissed as withdrawn without permission to file fresh suit, on 20‑6‑1982. The petitioner then filed suit for permanent injunction regarding the same land before Civil Judge Haroonabad, which was withdrawn on 15‑2‑1983 without permission to file fresh suit. On 29‑1‑1983, the petitioner filed suit for declaration to the effect that he was owner in possession of the same land. This time, he added Province of Punjab as a party. The plaint of this suit was rejected on 12‑4‑1984 on the ground that it was hit by the provisions of Order XXIII, rule 1(3) C.P.C. Thereafter, the petitioner filed present suit with a changed form seeking declaration to the effect that Mutation No.128 of the same land attested on 25‑7‑1981 was illegal and void. There can be no two opinions that the present suit is on the same subject‑matter of the two aforesaid suits for declaration filed by the petitioner against the respondents. The withdrawal of a suit without permission of the Court to institute a fresh suit operates as dismissal thereof. So under Order XXIII, rule 1(3), the petitioner was precluded from instituting the present suit. The arguments of the learned counsel that since legality of the Mutation No.128 was challenged and declaration was sought to the effect that the same was void and inoperative upon the rights of the plaintiffs, therefore, the suit was not hit by the provisions of order XXIII, rule 1(3), CP.C. are without substance and force, inasmuch as, Mutation No.128 having been attested before filing of the previous suits on 23‑2 1982 and 29‑1‑1983, the petitioner could challenge the same in the previous suits but he omitted to sue in respect of Mutation No.128, so under Order II, rule 2, C.P.C., he could not sue in respect of the Mutation through present suit. The relevant provisions of law may be reproduced advantageously:‑ Rule 2 Order II: (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) 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. (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. Explanation:‑‑For the purposes of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action." Sub rule (3) of rule 1 of Order XXI1I "Where the plaintiff withdraws from a suit, or abandons part of a claim, without the permission referred to in sub‑rule(2), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject‑matter or such part of the claim." It is thus very much obvious that no exception can be taken to the impugned judgment. The learned Additional District Judge has not flouted the provisions of relevant law. The learned counsel has not been able to point out any F legal infirmity in his judgment. For what has been said above, there being no merit, the petition is dismissed in limine. A.A./J‑54/L Petition dismissed.