1992 PLP 1401 (CLC)

(5) What should the decree be? Learned Joint Civil Judge, Shikarpur decided all the issues in favour of the petitioner. The respondents aggrieved by the judgment and decree passed, by learned Joint Civil Judge, Shikarpur preferred an Civil Appeal bearing No.10/1986 in which the impugned judgment was passed by him. consequently, the judgment and decree passed by learned Joint Civil Judge, Shikarpur was set aside. The only ground on which the learned IIIrd Additional District Judge Shikarpur had set aside the judgment and decree of learned Joint Civil Judge Shikarpur and accepted the appeal was that the second suit was barred under the provisions of Order 2, Rule 2, C.P.C. In order to fully appreciate the implication of the impugned judgment it would be worthwhile two reproduce Order 2, Rule 2, C.P.C. as follows:‑ "Suit to include the whole claim:‑‑(q1) 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 12art 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; 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." It was contended by learned counsel for the ‑applicant Mr. Lal Muhammad that Order

2. Rule 2, C.P.C. will extend to these cases only where the claim of the plaintiff relates to the same cause of action which is not so in the present case. The plaintiff's first suit was based upon contract whereas the other suit emenates from his right suit‑ was Muslim Law. These were two different and distinct causes, of action. In support of his contention learned counsel placed reliance on Abdul Kakim and two others v. Saddaullab Khan and two others (PLD 1970 SC 63), Qalendar Din and 4 others v. Rasul Khan (1991 SCMR 525), Pir Muhammad and others v. Ahmed Sultan and others (PLD 1.968 Kar. 526) and Saadullah Khan and others v. Pir Piayo Khan and 14 others (PLD 1970 Peshawar 150). In Abdul Hakim and 2 others v. Saddulah Khan and two others (PLD 1970 SC 63) it was held by the learned Judge of the Supreme Court as follows:‑ "The expression "cause of action" in Order 11, Rule 2, C.P.C. means the cause of action for which a suit is brought. In order that the cause of action for the two suits may be the same, it is necessary not only that the facts which would entitle the plaintiff to the right claimed must be the same but also that the infringement of his right at the hands of the defendants complained against in the two suits, must have arisen in substance out of the same transaction. In considering the application of this bar, regard is to be had to the allegations in the two suits without reference to the defence that may be set up by the defendants. A rough test, although not a conclusive one, is to tee whether the same evidence will sustain both suits which would be tile case if both the suits are founded on continuous and inseparable incidents in the same transaction. The question, however, is to be examined in substance and not merely on form as the cause of action in the two suits may be found to be the same, in spite of the facts alleged not being exactly identical in the two cases. It is not open to the plaintiff to split up the parts really constituting the same cause of action and file different suits in respect of them. In other words, a plaintiff must ask for all his reliefs which flow from the grievances caused to him by the infringement of his rights by the defendant in the course of the same transaction, but he cannot and is under no obligation to add to‑ his grievances which did not occur in that transaction.' In Oalandar Din and 4 others v. Rasul Khan (1991 SCMR 525) it was held: "In this case the essential features amongst the "bundle of facts" in the facts and circumstances, relating to the second litigation/snit and the third litigation/suit are totally different. In the second suit the respondent had seriously challenged the motives and intentions of the transaction. Not only this he had made positive assertion of fraud and collusion and above that he had not accepted the genuineness of the transaction as a sale. If these elements particularly last one would have remained the same as before, in the third suit, the very basis for suit for pre‑emption in the third suit would have obliterated. Without a sale there cannot be a pre‑emption. 1n the second suit the sale was brought under challenge as collusive and non‑existent. In the third suit the sale itself was accepted as lawful and complete and then it was brought under challenge through a suit for pre‑emption. Similarly. There are other factors constituting the causes of action in the two suits which are totally different. Accordingly the bar urged by the learned counsel as contained in Order II, Rule 2, C.P.C. was not attracted." ' In Pir Muhammad and others v. Ahmed Sultan and others (PLD 1968 Karachi 526) a Division Bench of the erstwhile High Court of West Pakistan Karachi held that where service agreement stipulate payment of certain amount forthwith and thereafter salary month by month, although both terms formed one transaction two distinct causes of action would arise in favour of the employee and wherein a suit for recovery of stipulated amount the employee omits to claim his salary subsequent suit for salary would not be barred under the provisions of Order II, Rule 2, C.P.C. In Saadullah Khan and two others v. Pir Piayo Khan and 1‑t others (PLD 1970 Peshawar 150) a Division Bench of erstwhile High Court of West Pakistan Peshawar Bench it was held that joining of two independent causes of action at one time and in one suit is not the requirement of Order 11, Rule 2, C.P.C. It was next contended by learned counsel for the petitioner that where a legal objection is not specifically taken in the pleadings, the same cannot be allowed. to be agitated at the appellate stage. 1t was pointed out by the learned counsel that nowhere the objection under Order 2, C.P.C. was raised by the respondent with the result that no issue was framed by the learned Joint Civil Judge. However at the stage of first appeal this point was raised on the basis of which learned IInd Additional District Judge, Shikarpur accepted the appeal and set aside the order of the learned Joint Civil Judge, Shikarpur. To substantiate his contention learned counsel placed reliance on a Division Bench decision of this Court in Municipal Committee, Shahdadpur v. Jumo Khan and others (PLD' 1972 Karachi 507) in which it was held that it is incumbent on a defendant to raise in his pleadings all matters which go to show that the suit is not maintainable. In another case, namely, Muhammad Yameen v. Hajran Bibi (1987 C L C 653) it was held that where no. objection as to the maintainability of the suit under Order 2, Rule 2 was taken in the trial Court the same could not be entertained in revision. On the other hand learned counsel for the r~spondcnt placed reliance on Ghani Bux v. Chhajoo Khan (1985 MLD 1563, Abdul Hakeem and 2 others v. Saadullah Khan and two others (PLD 1970 SC 63), Allah Dad v. Mehmood Shah and others (1991 SCMR 418), Rehmat Khan and 3 others v. Rehmat Khan and another (PLD 1991 SC 275), Habib Bank Ltd. v. Green Garments Manufacturcres and two other (PLD 1978 Karachi 1027), Pakistan State Oil Co. Ltd. v. The Karachi Electric Supply Corporation Ltd:' and 24 others (PLD 1991 Karachi 365) and Barkat v. Muhammad Sadiq and others (1990 C L C 1532). In Dhani Bux v. Chhajoo Khan 1985 MLD 1563 the suit was based upon an agreement of sale and the plaintiff claimed possession of the land and further prayed permanent injunction. Subsequently an application under Order 6, Rule 17 was moved by him seeking amendment of the plaint so as to enable the plaintiff to seek the relief for spec performance. The learned Single Judge of this Court while dealing with the case in revision held that the provisions of Order 2, Rule 2, C.P.C. would defeat the suit in so far as any relief on the basis of the agreement is concerned which disables the plaintiff, from obtaining any relief on the basis of the agreement in his favour. In Allahdad v. Mehmood Shah (1991 SCMR 418) it was held by the Court that there was possibility of two pleas being conflicting in some respect whereby the plaintiff intentionally did not pursue the matter with a view to get the same decided otherwise. The new plea raised by the plaintiff was thus held to be frivolous and it was observed that fresh litigation had started only to counter balance frustration suffered by plaintiff in the loss of previous litigation and therefore, principles of res judicata and the provisions of Order 2, Rule 2 were applicable. In Habib Bank Ltd. v. Green Garments Manufactureres and two others (PLD 1978 Karachi 1027) it was held that. where the plaintiff had prayed for a preliminary decree for sale of the mortgaged property and also. for decree for balance of the plaintiffs claim on the basis of the promissory note, the suit was not bad for misjoinder of cause of action. It was further held that the subsequent suit claiming relief on promissory note would be barred under the provisions of Order 2, Rules 2, 3 and

4. In Pakistan State Oil Ltd. v. Karachi Electric Supply Corporation Ltd. and 24 others (PLD 1991 Karachi 365) it was held by a Single Judge of this Court that every suit would include whole of the claim to which the plaintiff was entitled in respect of the same cause of action and in case he had relinquished or omitted any one of several reliefs, then he would not be entitled to claim the same through a subsequent suit. In Barkat v. Muhammad Sadiq and others (1990 C L C 1532) a Single Judge of the Lahore High Court, held that where the plaintiff had earlier filed a suit for permanent injunction and no relief either for declaration or any specific performance of agreement to sell was claimed by him, his suit for declaration relating to the same property was barred by provisions of Order 2, Rule 2, C.P.C. Now reverting to the impugned judgment, the learned IIlrd Additional District Judge, Shikarpur did not disturb the findings of learned Joint Civil Judge, Shikarpur on issues other than issue No.1 which relates to the maintainability of the suit. According to him since the petitioner failed to claim his right of pre‑emption against the respondent in the first suit, his demands whatsoever were of no avail and the second suit was barred under Order 2, Rule 2, C.P.C. At the same time he has held that the relief of pre‑emption is a distinct relief from the relief sought for by the petitioner in his earlier suit. It would be advantageous to reproduce an extract from the impugned judgment as follows:‑ "In the present case Mr. Lai Muhammad, the learned counsel for the respondent has not satisfactorily explained as to why the respondent No.6 did not avail the relief of pre‑emption in the first suit, what he has submitted is that the subsequent suit was filed on the basis of fresh cause of action and therefore it is not hit by the provisions of Order 2, Rule 2, C.P.C. It is true that the relief of pre‑emption is a distinct relief from the relief of declaration, permanent injunction and specific performance of contract, but the question is whether the relief of pre‑. emption was available or not to the respondent No.6 at the time of filing the first Suit No.33 of 1980.1 have already held that the relief of pre‑emption was available to the respondent No.1 at that time. In view of this observation the arguments of Mr. Lai Muhammad learned counsel for the respondent has no force:' I have perused the record before me and heard the arguments of the learned counsel for the parties duly supported by the above case‑law and I am of the view that the impugned judgment on the face of it is perverse and patently suffers from material irregularity. In the first place the learned Judge has failed to justify how an objection under Order 2, Rule 2, C.P.C. was maintainable in First Appeal when no such objection was raised by the respondent in his written statement and no issue in respect thereof was framed by the learned trial Court. While holding that the relief for pre‑emption was distinct relief he lost sight of the fact that the earlier suit was based upon an agreement of sale whereas the present suit arises out of right of pre‑emption and the cause of action in the latter suit is quite distinct and different from the former. The grievance of the petitioner in the instant suit flows not from the same transaction but arises out of a right under Muslim Law. Hence the suit is not barred under Order 2, Rule 2, C.P.C. In the result I set aside the judgment and decree dated 21st June 1986 passed by the learned rd Additional District .fudge. Shikarpur and maintain the judgment. and decree dated 17‑3‑1.984 of the learned Joint Civil Judge; Shikarpur The parties are, however, left to bear their own costs. AA./R‑206/K Order accordingly.