1990 PLP 1652 (MLD)

The case of the plaintiff is that Defendant No.l S.M. Hanif was owner of suit property situated on Plot No.Q‑1/1 (New No. 106), Modern Colony, Manghopir Road, Karachi. The plaintiff entered into an agreement with Defendant No.l for purchase of the suit property on 8‑3‑1982 for a sum of Rs.1,50,000 and paid Rs.97,

800. Defendant No.l executed receipt of the said amount and handed over possession of the suit property to the plaintiff. The plaintiff also paid the balance amount of Rs.52,000 to Defendant No.l and obtained receipt. On the request of Defendant No.l, the plaintiff rented out the suit property to his wife and obtained such a rent note from him. The plaintiff asked Defendant No.l to redeem the title deeds of the suit property from National Bank of Pakistan, Nazimabad Branch and to execute registered Sale -Deed in his favour, but the Defendant avoided to comply. The plaintiff paid Rs.50,000 loan to Defendant. No.l to get the property redeemed. Consequently the title documents of the suit property were returned by the Bank. On 30‑9‑1987 Defendant No.l and his wife vacated the suit property and handed over the possession to the plaintiff. On 30‑9‑1987, the plaintiff insisted upon Defendant No.l to execute the registered Sale‑Deed, but the Defendant No.l did not give proper reply or response. On 1‑10‑1987 the plaintiff appointed a Chowkidar on the suit property. Thereafter, some persons threatened the Chowkidar from time to time and finally on 25‑10‑1987 dispossessed the Chowkidar after giving him beating and forcibly occupied the house. The plaintiff reported the matter to Police, but without any success. On the contrary it was brought to the notice of the plaintiff that the Defendant No.l had sold the property to Defendant No.2 and had executed the registered Power of Attorney in favour of Defendant No.3. Hence the Plaintiff filed Suit No. 1289 of 1987 on 12‑1‑1987 before the IIIrd Senior Civil Judge (West), Karachi. The learned Civil Judge granted status quo. The said suit was pending when the plaintiff filed this suit for specific performance. It is stated by Mr. Ejaz Ali Mangi, Advocate for the plaintiff that he has withdrawn that suit after filing of the present suit i.e. on 20‑4‑1989. The copy of the withdrawal application and the order thereon has been produced, which shows that the plaintiff has withdrawn that suit unconditionally and, therefore, the suit has been dismissed by the Court as, withdrawn. The question that arises in the circumstances is whether the present suit is barred under the law in view of Suit No. 1289 of 1987 filed by the plaintiff. On the previous hearing plaintiffs counsel was called upon by my learned brother Mr. Justice Haziqiu Khairi, to satisfy him on this point. He was also given an adjournment to study the legal position. I have heard Mr. Arshad Iqbal learned counsel for the plaintiff. From the facts narrated in the plaint itself it is quite clear that the Defendant No.l had refused performance of the contract to the knowledge of the plaintiff and had sold the property to Defendant No.2 and had executed Power of Attorney in favour of Defendant No.3 on 21‑1‑1987 and Defendant No.2 filed Suit No.1245 of 1987. It was after coming to know of this fact that admittedly the Plaintiff filed Suit No. 1289 of 1987 wherein he repeated all these facts and made the following prayers in that suit. "(a) to declare that the subsequent sale agreement dated 21‑1‑1987 executed by the defendant No.2 in favour of defendant No.l is illegal, void and un-effected. (b) Permanent Injunction be granted restraining the defendants Nos.l, 2 and 3 from enforcing the sale agreement dated 21‑1‑1987 and from transferring, alienating the title of the property No.Q‑1/1 (New No.106), Modern Colony Manghopir Road, Karachi to anybody else. (c) Any other relief may deem fit and proper." Since this prayer does not contain a prayer for specific performance of the contract entered into between the Plaintiff and Defendant No.1, therefore, the Plaintiff filed the present suit which contains, the following prayer clause:‑‑ "(a) to declare that the plaintiff is lawful owner and bona fide purchaser of the suit property No.Q‑1/1 (New No.106) Modern Colony, Karachi under the valid Sale Agreement dated 8‑7‑1982. (b) to cancel the subsequent Sale Agreement dated 21‑1‑1987 executed by the Defendant No.l in favour of Defendant No.2 in respect of the suit property. (c) to direct the Defendant No.l for specific performance of the contract dated 8‑7‑1982 and to execute the final Sale‑Deed before the Sub -Registrar, Karachi in respect of Property No.Q‑1/1 (New No.106) Modern Colony, Karachi in favour of the plaintiff. in alternative the Defendant No.l do not execute the Final Sale‑Deed, the Nazir appointed on behalf of the Defendant No.l to execute the Final Sale‑Deed before the Sub‑Registrar, Karachi in respect of the said property in favour of the plaintiff. (d) the Defendant No.2 be directed to hand over the vacant and peaceful possession of the suit property No.Q‑1/1 (new No.106) Modern Colony, Karachi to the plaintiff. (e) any other relief as the Court deems fit and proper. (f) cost of the suit." It will not be out of place to mention that Suit No.1289 of 1987 was not withdrawn without obtaining any permission for filing a fresh suit, as required by Order XXIII, Rule 1 (2), C.P.C. but was also withdrawn after the filing of the present Suit No. 345 of 1988. Hence the present suit is barred under sub‑rule(3) of Rule 1 of Order XXIII, C.P.C. Apart from that as I have already pointed out that the Plaintiff had gained notice of the fact that Defendant No.l had refused the performance of the contract by executing Sale‑Deed in favour of Defendant No.2 and General Power of Attorney in favour of Defendant No.3 and that the plaintiff had also lost possession of the house, therefore, the cause of action to file suit for specific performance had accused to the plaintiff before filing of Suit No. 1289 of 1987. Hence C.P.C. under Order II Rule 1, C.P.C. makes it obligatory upon the plaintiff to frame his suit as far as practicable so as to afford ground for final decision upon the subjects in dispute and to prevent further litigation concerning them. The object of the rule is that all the matters in dispute between the same parties arising and relating to the same transaction should be disposed of in the same suit. The infraction of this rule is penalised by the provisions of section 11, C.P.C. and Explanation 4 thereof and Order II, Rule: 2 (b), C.P.C. Section 11, C.P.C. which relates to res judicata, bars the Court from trying any suit or issue, in which matter directly and substantially in issue has been so in a former suit or issue between the same parties, in a subsequent suit in which such issue has been subsequently raised. Explanation 4 thereto makes it quite clear that any matter which might and ought to have been made a ground of defence or attack in such former suit, shall be deemed to have been a matter directly and substantially in issue in such suit. Order II, Rule 2 makes it obligatory upon the plaintiff to include in his suit the whole of the claim which the plaintiff is entitled to make in respect of the cause of action and 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. Similarly a person entitled to more than one relief in respect of the same cause of action, if he omits to sue fort; such a relief, shall not afterward sue in respect of the relief so omitted. Hence the plaintiff not having sued for the relief of specific performance in the previous suit, cannot now do in view of the provisions of C.P.C. mentioned by me above. The result is that the plaintiff's suit appears to be barred by law and plaint is, therefore, rejected under Order VII, Rule 11, C.P.C. with no order as to costs. M.B.A./A‑839/K Plaint rejected.