2013 PLP 1888 (YLR)

KHALID MAHMOOD, J.

Fazlur Rehman etc. respondents/plaintiffs filed Suit No.28/1 for declaration against the petitioners/defendants in the Court of Civil Judge Tangi. The petitioners appeared before the Court and submitted an application for dismissal of the suit under Order II Rule 2, C.P.C. on the ground that the instant suit has been filed at the time when another Suit No.114/1 regarding the same subject-matter and on the same cause of action, between the same parties was pending before the same trial Court. After hearing arguments on the said application the trial Court vide its order dated 11-3-2010 dismissed the suit of the respondents. Feeling aggrieved the respondents/plaintiffs filed Appeal No.13/14, which was accepted by the learned ADJ Tangi and remanded the case vide his order dated 11-2-2011, set aside the order dated 11-3-2010 of the trial Court and remanded the case back to it with direction to try the suit on merits according to law. Hence this revision petition by the petitioners/defendants impugning the order dated 11-2-2011 of the lower appellate Court.

2. Arguments heard and record perused.

3. The bone of contention in the present suit is that after withdrawal of the prior Suit No.114/1 the subsequent suit, which was also pending at the time of withdrawal of the prior suit, the subject suit i.e. present suit cannot proceed and liable to be dismissed. There is no denial on the question of fact that both the suits were between the same parties regarding the same subject-matter. However, in both the cases nature of the suits was different. The first suit bearing 114/1 was instituted on 26-11-2008, which was for permanent injunction till official partition takes place, whereas the subsequent Suit No.28/1 was instituted on 2-4-2009, wherein the entries in the Revenue Record were challenged with the prayer for official partition.

4. So far as the question of nature of case is concerned, both the suits were of different natures. In the earlier suit only permanent injunction was sought, whereas the later suit was for declaration as well as for partition. It is also an admitted fact that the earlier suit was withdrawn on 9-4-2009, when the subsequent suit was already pending. Whether the subsequent suit can be entertained when the prior suit during its pendency is withdrawn is the question, which requires resolution at this end. The argument of the learned counsel for the petitioners was that the present suit i.e., subsequent suit is hit by the principle of res judicata as well as under Order II, Rule 2, C.P.C.

5. So far as the question of res judicata is concerned, the subsequent suit does not come within the definition of res judicata, because the present suit was filed during the pendency of the previous suit and that was too for the declaration and the official partition, which is altogether for different relief as compared to the earlier suit.

6. So far as the question of applicability of Order II, Rule 2, C.P.C. is concerned, that too does not attract the provisions of the Order ibid, which is reproduced as under:-- "II. Suit to include the whole claim.

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".

7. The present suit was instituted on the ground of wrong entries, which was pointed out during the course of proceedings of previous suit, while recording the statement of Patwari Halqa. In the present suit cause of action is different, nature of suit is different, therefore, the present suit cannot be hit by the principle of res judicata or by the provision of Order II Rule 2, C.P.C. In this regard the case of "Naseer Ahmad Shaikh through Attorney v. Ltd. Col. Munawar Hussain Shah" (2000 CLC 1342) has been cited, wherein it has been held that the subsequent suit cannot be dismissed on the ground which was filed subsequently and having different cause of action and in which different relief has been sought. This view finds support from another Judgment reported as Saeed Ahmad and three others v. Tanveer Ahmad and another (1990 MLD 788). Both the cases were based on the mother judgment of the apex Court in the case of Ghulam Nabi and others v. Seth Muhammad Yaqub and others (PLD 1983 SC 344), wherein case of similar nature was thrashed out and it was held that the subsequent suit having different relief and cause of action cannot be dismissed. Moreover, equity demands that the lis should be decided on merits rather than on technicalities. In the light of the above discussion the revision petition is dismissed with no order as to costs. KMZ/61/P Revision dismissed.