P L D 1975 Peshawar 17 (PLP)

(4) Whether the suit is within time? (5) Whether the suit is hit by the provisions of Order II, rule 2, C. P. C.?

4. The findings of learned trial Judge on all these issues, with which the learned District Judge has agreed are against the appellant. But before me his learned counsel has confined his arguments only to issues Nos. 4 and

5. He strenuously contended that on these issues the findings against his client are illegal and thus the decree of the learned District Judge is not sustainable.

5. I would, in the first place, like to deal with issue No.

5. But before I proceed to examine the contention of the learned counsel, it would be proper to reproduce Order II, rule 2, C. P. C., which reads as under:-- "2. (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) Where a plaintiff omits to sue in respect of, or intentionally relin quishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. (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. Explanation.

For the purposes of this rule an obligation and 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 language of the rule is altogether clear to admit of any doubt. But all the same it will be helpful to refer to a Privy Council Judgment in the case of Muhammad Khalil Khan and others v. Mahbub Ali Mian and others (P L D 1948 P C 131) in which this rule has been construed thus:

"(1) The correct test in cases falling under Order II, rule 2, is "Whether the claim in the new suit is in fact founded upon a cause of action distinct from that which was the foundation for the former suit. (2) The cause of action means every fact which will be necessary for the plaintiff to prove if traversed in order to support his right to the judgment. (3) If the evidence to support the two claims is different, then the causes of action are also different. (4) The cause of action in the two suits may be considered to be the same if in substance they are identical. (5) The cause of action has no relation whatever to the defence that may be set up by the defendant nor does it depend upon the character of the relief prayed for by the plaintiff. It refers to the media upon which the plaintiff asks the Court to arrive at a conclusion in his favour. This observation was made by Lord Watson in a case under section 43 of the Act of 1882 (corresponding to Order II, rule 2), where plaintiff made various claims in the same suit." Now adverting to the facts of the case, respondent had, in his earlier suit (of which plaint Exh. P. W. 1/3 is on record), impleaded the owner of compensation book (Abdur Rahim), but even so did not claim any relief against him. A look at para. 5 of the plaint in the suit would show that respondent was conscious of his right in that connection. But all the same did not claim any relief against Abdur Rahim saying that he reserves his rights of recovering Rs. 4,320.00 in respect of which he was filing a separate application. It is evident that by making this application, he was trying to protect himself from the operation of sub-rule (3) of rule 2 of Order 11, C. P. C. But his learned counsel has conceded at the bar that this application was not pressed before the trial Judge and no order was passed on it. In this background, the question arises whether the subsequent suit filed by respondent against the appellant, who had stood surety to him in regard to the genuineness of compensation book of Abdur Rahim, would be competent in view of Order II, rule 2, C. P. C.? and to answer this question, let us proceed to examine the allegations made by him in the earlier plaint and the second plaint, in which the appellant was made by him as defendant.

7. A perusal of the first plaint would show that for cause of action for that suit, respondent was relying on the notice of the Deputy Settlement Commissioner dated 27-3-1969. And this is indeed what he has alleged in para. 7 of the plaint Curiously, however, he chose not to claim any relief against Abdur Rahim (who had been impleaded as defendant in the previous suit) although according to agreement Exh. D. A. he had under taken to him that the compensation book was genuine. And in case it was found bogus he would refund him the sum of Rs. 4,320.00. In the second plaint, in which the appellant, was for the first time im pleaded by him as defendant, respondent claimed against him a decree for the recovery of Rs. 3,000 on the ground that he had stood surety to him (vide agreement Exh. P. W. 1/1) that the compensation book of Abdur Rahim was genuine, but in case it was found bogus he would pay him Rs. 3,000 in cash. The plaint is silent in regard to the date on which the cause of action had accrued to respondent. But this can be inferentially gleaned from para. 3 thereof in which he seems to have traced the cause of action to 15-4-1970 on which his earlier suit had been dismissed by the Senior Civil Judge. The two Courts below have, notwithstanding the contrary objection of the appellant, accepted this to be the correct position. But, with respect they seem to have misconstrued the unambiguous provisions of Order II, rule 2, C. P. C. In the Privy Council case (supra) in which the provisions of this Order have been authoritatively construed, it has been laid down that the cause of action would mean every fact which would be necessary for the plaintiff to prove if traversed in older to support his right of judgment. And further that in order to see whether the subsequent suit filed by him would be hit by the said Order, the Court must examine the two sets of plaints with a view to seeing if they cover the same field-keeping, of course, in mind that resort to subterfuge and clever-drafting would not avail the plaintiff. In other words, if by the said examination the Court comes to the conclusion that the two sets of plaints are the same in substance and cover the same field, then the second suit would be incompetent.

8. The examination of two sets of claims in this case have revealed to me that they are substantially the same and cover almost indentical fields. 1n point of fact, both suits are grounded in the same cause of action, namely, the notice of Deputy Settlement Commissioner dated 27-3-1969. And consequently, respondent was, under the warrant of Order II, rule 2, C. P. C., obliged to claim against Abdur Rahim a decree in his first suit for the recovery of Rs. 4,

320. Having impleaded Abdur Rahim in that suit, however, as defendant, he not only did not claim any such relief against him, but also allowed his application, in which he had prayed to be allowed to reserve his said right, to go by default and hence brought his second suit within the mischief of rule 3 of Order II of the Code of Civil Procedure. In this view, it would follow that his second suit against the appellant would be incompetent, for according to his own admission he could have claimed against him decree for the refund of Rs. 3,000 in his previous suit and yet he did not even implead him as defendant. The learned Senior Civil Judge has (although the learned District Judge has omitted to consider this aspect of the case) considered the effect of Order II, rule 2, C. P. C. and I would like to quote him on that point :- "The plaintiff had brought that suit against the Government of Pakistan and five others (not the present defendants) for declaration to effect that the notice dated 27-3-1969 issued by the Deputy Settlement and Rehabilitation Commissioner, Bannu to defendant No. 3 is illegal and void. The plaintiff also prayed for permanent injunction restraining the defendants not to interfere with the possession of the plaintiff on house No. 34-B. While the present suit with regard to the recovery of Rs. 3,000 from Fazal Muhammad is brought on the basis of Iqrar Nama Exh. P. W. 1/1 Fazal Muhammad was neither a party in- that suit nor the Iqrar Nama Exh. P. W. 1/1 was in-issue in the previous litigation and the provisions of Order II are therefore not applicable." It will be seen that while the learned Senior Civil Judge did refer to the provisions of that Order, yet according to his reasoning he was essentially referring to the doctrine of res judicata, as contained in section 11, C. P. C. which, in view of the facts of this case had no application. There is, therefore, no option but to hold that his finding on issue No. 5 is not sus tainable and the subsequent suit filed by respondent was barred under Order II, rule 2, C. P. C.

9. Even his finding on issue No. 4 cannot be sustained. Exh. P. W. 1/1, by which the appellant had bound himself as surety to respondent was executed on 11-2-1968, whereas the present suit was filed by respondent against him on 15-4-1972 i.e., after more than three years. If agreement Exh P. W. 1/1 is deemed to be a bond within the meaning of Article 68 of the Limitation Act, the prescribed period in which respondent should have filed suit against appellant would be three years. But he filed the suit after the expiry of this period. The learned counsel for respondent was unable to point out any other Article of the Limitation Act which would benefit his client. And on my part too, I have not been able to locate any other Article which would help him. The Courts below have, however, reckoned the period of limitation of the present suit from 15-4-1970 when the first suit of respondent was dismissed. But this was clearly incorrect. The cause of action had arisen to respondent in consequence of notice of Deputy Settlement Commissioner dated 27-3-1969 informing him that the compensation book submitted by him to the Depart ment was found bogus. And it was from this date that the period of limitation for his suit shall have to be reckoned. Reversing the findings of the two Courts below on issue No. 4, I, therefore, hold that the suit of respondent was barred by time. This appeal is, therefore, allowed, the decree of learned District Judge is set aside and the suit of plaintiff-respondent is dismissed. But under the circumstances, the parties would bear their own costs. K. B. A. Appeal accepted.