1995CLC183 (PLP)

(xi) It is further prayed that till the final decision of this case/suit the defendant may be restrained from transferring and/or alienating and/or allotting and/or in any manner the membership card belonging to the plaintiff and any further proceedings)/action(s) would be without any lawful authority and of no legal effect till disposal of the suit." In the suit an application was moved under Order 7, Rule 11, C.P.C. praying for dismissal of the suit. The grounds advanced in the application were that earlier to the said suit the plaintiff had filed another suit being suit No. 663 of 1992 which was withdrawn unconditionally and also that in view of the provisions of Order 2, Rule 2, C.P.C. the claim of the relief of accounts in the suit under hand was barred and cannot be sought. The learned Single Judge in Chambers after hearing the arguments of parties was pleased to dismiss the suit on the ground that the same was barred under the provisions of Order XXIII, Rule 1(3), C.P.C. Being aggrieved the appellant has preferred the present appeal. The contention of the appellant is that the present suit is filed on different cause of action and, therefore, it would not be hit under the provisions of Order XXIII, rule 1(3), C.P.C. He has placed reliance on a notice given by the appellant to the Deputy Secretary, Karachi Stock Exchange on 12‑8‑1992 wherein he has demanded the settlement of outstanding amounts. On 26‑4‑1993 he has given another notice to the President of the Karachi Stock Exchange wherein also he had demanded the settlement of dues. The two notices are placed on record of this appeal as Annexures B/3 and B/4. The prayer in the earlier Suit No. 663 of 1992 is as under: "(a) Declaration to the effect that the resolution dated 8th and 11th October is ultra vires, void ab initio, against the established rules and regulation of the defendant 9s well as principles of natural justice and is liable to be set aside and be declared as such. (b) Further declaration to the effect that the plaintiff still is a bona fide member of the defendant. (c) Permanent injunction, restraining the defendant, its agent, attorney, servant or any person authorised on its behalf to sell, alienate, transfer or create encumbrances or to deal with the membership of the plaintiff in any manner whatsoever, till the final disposal of the suit. (d) Decree in the sum of Rs.100 million as damages against the defendant for the damages caused to the reputation of the plaintiff. (e) Any other further better relief, as deemed fit and proper by this Honourable Court under the circumstances of the case:' This suit was instituted on 18‑12‑1992. This suit was allowed to be withdrawn by an order passed on an application moved by the plaintiff under Order XXIII, Rule 1, C.P.C. on 6‑12‑1992. Now, the points which require consideration are as to whether the suit is barred under the provisions of Order 2, Rule 2, C.P.C. and under provisions of Order XXIII, Rule 1(3), C.P.C. As regards the first point the provision of Order 2, Rule 2, C.P.C. laid down 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. (2) Relinquishment of part of claim.‑‑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) Omission to sue for one of several reliefs.‑‑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 arid 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." The above provision will clearly show that in a suit the whole of the claim to which the plaintiff is entitled is to be included and in case the plaintiff omits to sue in respect of any portion of his claim or any relief then he shall be debarred to sue for that claim or relief afterwards. In the present case as appears from the documents Annexure B/3 the appellant had given a notice for settlement of outstanding amounts on 12‑8‑1992 i.e. about two months before filing of the earlier suit and no relief is sought in the earlier suit with regard to the settlement of accounts. Thus, the appellant would be barred under the provision of Order 2, Rule 2, C.P.C. to bring any suit with regard to the relief of accounts. As regards the remaining reliefs sought in the present suit, the same having been sought in the earlier suit which had been withdrawn unconditionally the present appellant would be barred from bringing the present suit under the provision of Order 23, Rule 1(3), C.P.C. which read as under:‑‑ "

1. Withdrawal of suit or abandonment of part of claim.‑‑ (1) ............................................. (2) ............................................. (3) 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. (4) ............................................. The leaned counsel for the appellant has submitted that a fresh cause of action had accrued to him because subsequently on 26‑4‑1993, after withdrawal of the earlier suit he had given a notice to the respondents and, therefore, fresh cause of action had accrued to him. It may be observed as discussed above this second notice is merely a continuation of first notice given on 12‑8‑1992, before institution of the earlier suit. Even otherwise, cause o action would not accrue merely because the plaintiff has given a notice. Under these circumstances, we are of the view that there are no reasons to interfere with the orders passed by the learned Single Judge. The appeal is accordingly, dismissed summarily alongwith all miscellaneous applications. AA./M‑2002/K Appeal dismissed.