2017 PLP 226 (CLCN)

AMIN-UD-DIN KHAN, J.

Through this single order I intend to decide the instant Civil Revision as well as Civil Revisions Nos.2569, 2570, 2571 and 2572 of 2012, as common question of law and fact is involved in all the petitions.

2. According to the brief facts of the case, the predecessor of petitioners on 01.05.1999 filed five suits for recovery of mesne profit of the suit property, which are subject matter of the instant Civil Revision bearing No.2650 of 2012 as well as Civil Revisions Nos.2569, 2570, 2571 and 2572 of 2012. The suit property is mentioned in Paragraphs Nos.1 and 2 of the plaint. The written statement was filed and the suits were contested. The issues were framed and the parties were directed to produce their respective evidence. Learned trial court recorded the evidence in each suit. Vide judgment and decree dated 27.06.2009 passed in each suit, the suits were decreed. The defendant-respondent being dissatisfied by the judgment and decree passed by the learned trial court, preferred separate appeals against the judgment and decree passed in each suit and the learned first appellate court vide judgments and decrees dated 27.04.2011 accepted all the appeals and dismissed all the suits. The petitioners/plaintiffs filed review petitions against the judgments and decrees passed by the learned first appellate court and the review petitions were dismissed vide order dated 21.04.2012. Hence, these civil revisions.

3. Learned counsel for the petitioners states that the view taken by the learned trial court was in accordance with the evidence available on the file but the learned first appellate court has wrongly allowed the appeals, therefore, the judgments and decrees passed by the learned first appellate Attourt are not sustainable under the law. States that on the point of law review petition was filed in each case, which was dismissed. While relying upon the judgment reported as 1993 CLC 2478 (Ejaz Hussain v. Abbas Ali)" with regard to limitation states that no specific period is provided under the Limitation Act, 1908, therefore, Article 120 of the Limitation Act applies and six years limitation is provided for filing a suit for mesne profit. Prays for acceptance of all the civil revisions and restoration of the judgments and decrees passed by the learned trial court.

4. According to the facts of the case as per the petitioners, the predecessor of petitioners was shareholder of 1/3 share, whereas the defendant had 2/3 share in the property measuring 2-marlas 240-square feet and major portion of the property was partitioned between the parties and to that extent each party is in separate possession, whereas some portion of the property mentioned in the plaint is still joint between the parties and the respondent is using the same, therefore, the suit for mesne profit. The subject matter of instant Civil Revision is a suit for mesne profit for the period from 01.05.1993 to 31.12.1994, subject matter of Civil Revision No.2569 of 2012 is a suit for mesne profit for the period from 01.01.1995 to 30.04.1996, subject matter of Civil Revision No.2570 of 2012 is a suit for mesne profit for the period from 01.05.1996 to 31.07.1997, subject matter of Civil Revision No.2571 of 2012 is a suit for mesne profit for the period from 01.08.1997 to 30.09.1998 and subject matter of Civil Revision No.2572 of 2012 is a suit for mesne profit for the period from 01.10.1998 to 30.04.1999. Learned trial court decreed all the suits, whereas the learned first appellate court dismissed the suit subject matter of the instant Civil Revision bearing No.2650 of 2012 on the ground that the suit was filed on 01.05.1999 which is barred by time, as Article 109 of the Limitation Act, 1908 applies whereby the period is provided three years for filing a suit for mesne profit. Whereas the suits subject matter of Civil Revisions Nos.2569, 2570, 2571 and 2572 of 2012 were dismissed on the basis of Order II, Rule 2 of the C.P.C. that when the plaintiff has opted to file the suit for mesne profit subject matter of the instant Civil Revision for the period from 01.05.1993 to 31.12.1994 on 01.05.1999, therefore, this suit is barred by limitation and the other four suits are barred under Order II, Rule 2 of the C.P.C. Learned counsel has mainly relied upon the judgment reported as "1993 CLC 2478" to argue that when all the five suits were filed on 01.05.1999, therefore, in the light of cited case law all the suits were competent and do not hit by the provision of Order II, Rule 2 of the C.P.C.

5. I have heard the learned counsel for the petitioners at length and also gone through the record available on the file as well as the case law referred to by the learned counsel.

6. I have thoroughly gone through the judgment passed by the learned Division Bench of this court reported as "1993 CLC 2478 (Ejaz Hussain v. Abbas Ali)". Paragraph 7 is relevant which is reproduced as under:- "Equally efficacious is the second contention of the learned counsel for the appellant that Order II, Rule 2 of the Code applies to subsequent suit and not contemporaneous suit. This view was laid down in Haji Ashfaq Ahmad Khan and others v. Custodian of Evacuee Property and others (PLD 1966 Karachi 597)." Learned Division Bench of this Court has recorded the passing remarks on the basis of argument of learned counsel for the appellant that Order II, Rule 2 of the C.P.C. applies to the subsequent suits and not contemporaneous suits in the light of judgment reported as "PLD 1966 Karachi 597". I have gone through the judgment of the learned Karachi High Court. The judgment relates to Order XXIII, Rule 1 of the C.P.C. and has absolutely no nexus with Order II, Rule 2 as well as section 11 of the C.P.C. I have also gone through the judgment of Sindh High Court Karachi reported as "PLD 1978 Karachi 1027 (Habib Bank Ltd. v. Green Garments Manufacturers and 2 others)". In this judgment while dilating upon the issue of Order II, Rule 2 of the C.P.C. the court has recorded the findings on the basis of the fact that two suits were filed and in each of the suits the defendant firm was having different entity as in one suit the defendant firm was having three partners whereas in the other case the defendant firm was having four partners. In that eventuality the court came to the conclusion that if two suits were filed on the same date, the bar of Order II, Rule 2 of the C.P.C. is not attracted.

7. I with great respect to the learned Division Bench of this Court observe that it is not the ratio decidendi of the judgment noted supra of the Karachi High Court that Order II, Rule 2 of the C.P.C. applies to the subsequent suits and not contemporaneous suits, therefore, these remarks with regard to Order II, Rule 2 of the C.P.C. made by the learned Division Bench of this Court in the cited judgment are passing remarks. Therefore, passing remarks by the learned Division Bench of this Court do not operate as obiter dicta, with regard to Order II, Rule 2 of the C.P.C. being the passing remarks. Even in my view in the light of the judgment mentioned supra, there are two parts of the Order II, Rule 2 of the C.P.C., one is to file a suit may relinquish any portion of his claim in order to bring the suit within the jurisdiction of the court. The other part of Order II, Rule 2 of the C.P.C. is, "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".

8. In the instant lis the petitioners-plaintiffs intentionally relinquished their part of claim in order to avoid payment of court-fee, therefore, when their first suit was dismissed as barred by limitation and the other suits which were filed even on the same day on the basis of cause of action available to them and they opted not to include the whole of their claim in the suit which is subject matter of Civil Revision No.2650 of 2012, therefore, all the other suits were rightly dismissed by the learned first appellate court on the basis of Order II, rule 2 of the C.P.C. and review petitions have rightly been dismissed.

9. The other discussion in the judgment of this court reported as "1993 CLC 2478" relates to the filing of incompetent suit, as in case of an agreement to sell of immovable property between the parties usually the party files a suit for permanent injunction, that suit being incompetent therefore is not a hurdle in the way of filing of a competent suit for specific performance of agreement to sell. In these circumstances, the cited judgment by the learned counsel for the petitioners is absolutely not applicable to the facts of this case, therefore not helpful for the petitioners. The basic provision of Order II, Rule 2 of the C.P.C. allows a party to relinquish the part of claim to bring the suit within the jurisdiction of any court. In the instant suit, the plaintiff had relinquished his part of claim to bring the suit within the jurisdiction of the court in order to file his suit without payment of court fee as the jurisdictional value was fixed for the purpose of court fee and jurisdiction as Rs.24,000/-, therefore, his leftover part of claim cannot be pressed through another suit even filed on the same day. The second suit which is subject matter of Civil Revision No.2569 of 2012 is valued as Rs.22,400/-, 3rd suit which is subject matter of Civil Revision No.2570 of 2012 is valued as Rs.24,000/-, 4th suit which his subject matter of Civil Revision No.2571 of 2012 is valued as Rs.23,800/- and the 5th suit which is subject matter of Civil Revision No.2572 of 2012 is valued as Rs.13,300/-. Learned first appellate court has dismissed first suit on the ground that same was filed after the prescribed period of limitation. As a suit for mesne profit can be filed within three years in accordance with Article 109 of the Schedule 2 of the Limitation Act, 1908 and all the subsequent suits were dismissed being hit by the provision of Order II, Rule 2 of the C.P.C. Reliance can be placed upon "2006 CLC 482, (Messrs Kashmirian Private Ltd. through Shomaila Loan Marker and 6 others v. Ghulam Nabi Gujjar and another), 1984 CLC 2314 (Mst. Barkat Bibi v. West Pakistan Province and others) and 1987 CLC 195 (Habibur Rahman alias Habibur Razaq v. Pakistan Employees Cooperative Housing Society Limited etc.)". I endorse the view taken by the learned first appellate court. Therefore, the judgments and decrees passed by the learned first appellate court are strictly in accordance with law.

10. The resume of above discussion is that no case for interference by this court while exercising jurisdiction under section 115 of the C.P.C. is made out. The judgments and decrees passed separately by the learned first appellate court whereby the appeals were accepted and suits have been dismissed have no exceptions. Therefore, the instant Civil Revision bearing No.2650 of 2012 as well as Civil Revisions Nos.2569, 2570, 2571 and 2572 of 2012 having no force stand dismissed. ZC/A-44/L Revision dismissed.