P L D 1995 Karachi 416 (PLP)

This Miscellaneous Application under section 151, C.P.C. has been filed directly before this Court seeking the quashment of the proceedings in Civil Suit No. 1508 of 1992 pending in the Court of VIth Senior Civil Judge (South) Karachi. The contention of the counsel is that previously the same respondents had instituted a Suit No. 29 of 1992 in the lower Court seeking the relief of permanent, `.only which suit was dismissed and an appeal was filed by the respondent, the pendency of the appeal the respondent also filed the present suit for cancellation of documents, declaration, partition, possession and permanent injunction. according to the plaint in the subsequent suit, cause of action is claimed to have arisen in January, 1992 when the Defendant No.l/applicant tried to sell the suit property and subsequently against all the .Defendants when the sale‑deed was executed and registered etc. As against this the cause of action in the earlier suit was claimed to have accrued in 1989 when the Defendant tried to enter into an agreement of sale. This shows that prima facie the cause of action in the two suits is different as in the subsequent suit the same had arisen on the .registration of the sale documents which fact was non‑existent at the time earlier suit was instituted. The present applicant in the present case had filed an application under Order 7, Rule 11, C.P.C. praying for rejection of the plaint on the ground that the suit is barred under the provisions of Order 2, Rule 2, C.P.C. This application was dismissed on 25‑7‑1992 and the order was not challenged in appeal or before any other form. Thereafter, an application under Order 14, Rule 2, C.P.C. was moved by the present applicant in the suit praying for settlement of two issues, on the point of limitation and maintainability of the suit to be . framed as preliminary issues. This application was also rejected on 8‑8‑1994. This order was also not challenged in Revision Application. Thereafter, the trial Court settled the issues in the month of October, 1994 which issues do include the issues with regard to limitation and maintainability of the suit. However, it is on 22‑2‑1995 that this Civil Miscellaneous Application has been moved in this Court directly by the present applicants who are defendants in‑ the suit. The contention of the counsel for the applicants mainly is that there are two decrees standing against the present respondents, and, therefore, they could not have instituted the said suit as under the provisions of Order 2, Rule 2, C.P.C. the entire claim, if any, has to be included in the plaint and any relief available to the plaintiff which has been given‑up by him in the earlier suit, cannot subsequently be claimed in a fresh suit. There is no cavil about this proposition of law but the question involved in the present suit is as to whether the claim for the relief sought in the subsequent suit was available to the present respondent at the time the previous suit was instituted by him. Copies of two plaints are placed on the record by the learned counsel for the applicant. As discussed above the cause of action in the first suit is shown to have accrued in the year 1989 when the registered document was non‑existant while the cause of action for subsequent suit for declaration and cancellation of documents, on the face of it, accrued to the plaintiff when the said documents E were executed and registered which a comparison of the two plaints would show to be subsequent in time. In these circumstances, it can hardly be said that the second suit would be hit by the provisions of the Order 2 of Rule 2, C.P.C. which read as under:‑‑ "

2. Suit to include the 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 his 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, 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." As regards the provisions of Order 14, Rule 2, C.P.C., it is within the discretion of the trial Court to settle the preliminary issues of law only if it is of the opinion that the entire suit can be disposed off on hearing of such issues. However, if the trial Court is of the opinion that it would be necessary to .~ proceed with the issues of facts also then the trial Court may settle the issues arising out of the pleadings and proceed to record the evidence if necessary and to give final adjudication. The provisions of Order 14, Rule 2, C.P.C. react as under: "

2. Issues of law and of fact.‑‑Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on the issues of law only, it shall try those issues first, and for that purpose may, if it thinks fit, postpone the settlement of the issues of fact until after the issues of law have been determined:' In the instant case the trial Court has observed that it would be necessary to record evidence pertaining to the issues raised by the parties in their pleadings. The learned counsel has placed reliance on the case of Muhammad Bashir v. Muhammad Hussain (1994 CLC 1207) and the case of Yousuf A Mitha and 3 others v. Aboo Bakar and 2 others (PLD 1980 Karachi 492). As already discussed there is no cavil about these propositions. The next question which requires consideration is as to what is the scope of section 151, C.P.C. The provisions of section 151, C.P.C. read as under:‑‑ "151. "

151. Sing of inherent powers of Court.‑‑Nothing in this Code shall be deemed to limit or otherwise . affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court" . No doubt the Civil Court has inherent powers to make orders which may be necessary to secure ends of justice or to prevent the abuse of the process of the Court. However, such powers are to be exercised discreetly. Our such condition precedent for exercise of powers under section 151, C.P.C. it that there should be no other adequate remedy available or there should be no other provisions in Civil Procedure Code provided for the intended object. In the present matter as already discussed the trial Court is of the opinion that' evidence has to be recorded to determine the points at issue. Even otherwise the points urged by the learned counsel for the applicant that the earlier suit will operate as a bar to subsequent suit, requires evidence to determine as to whether the question involved in two suits, is the same, whether the cause of action in the two suits is same and whether the parties are also same. In these circumstances, I am of the view that the orders passed by the trial Court on the two applications as discussed above do not require any interference. The learned counsel has placed reliance on the case of Manzoor Ahmed v. Nazeer Ahmed (1994 CLC 2443), wherein a learned Single Judge of the Lahore High Court had granted the application under section 1.51, C.P.C. and quashed the proceedings in the civil suit. In the said case there were continuously thirty two suits filed by the same person against the applicant. and the cause of actin in all suits was identical in these circumstances, I am of the view that the principles laid, down in the above case would not be applicable to the present case. In light of above discussion I am of the view that the present application merits no consideration which is accordingly dismissed summarily with miscellaneous application. AA./M.2089/Kar. Application dismissed.