2004 PLP 59 (YLR)

The appellant filed appeal against the order dated 24‑3‑2000, whereby the learned Single Judge rejected the plaint under Order VII Rule 11, C.P.C. Brief facts of the case are that the appellant‑Company entered into an agreement with the respondents on 1‑7‑1984 for furnishing and installing of Otis equipment in Pakistan. Under the said agreement the appellant was restricted not to enter into or be directly or indirectly concerned in any business in the territory relating to manufacturing, furnishing, installation, repair, maintenance or servicing of elevators or escalators or relating to any other business activity covered in the agreement for a period of three years after expiration or termination of the agreement. It is alleged that without any reasons respondent had arbitrarily and illegally and due to mala fide terminated the agency/agreement on 3‑7‑1992. The appellant tried to demonstrate the tremendous losses and damages suffered and would be suffered by the appellant due to illegal and mala fide termination of the agreement conducted meetings, negotiations and personal exchanges but without any result. It is also alleged that in spite of appellant's best efforts the respondents maintained their adamant and wrongful stance only to deprive the appellant from the fiduciary benefits and have given the sole agency to another party only to enjoy the fruits of the appellant's efforts. The appellant, therefore, filed Suit No.697 of 1992 against the respondents. The said suit was withdrawn by the appellant unconditionally by filing an application under Order XXIII, Rule 1, C.P.C. on 13‑3‑1996. The appellant after about two years of withdrawing the suit unconditionally filed Suit No.1099 of 1998 against the respondents for recovery or Rs.4,101,555,

000. The respondents filed application under Order VII, Rule 11 C.P.C. with the prayer to reject the plaint as the same is barred under section 11, Order II, Rule 2 and under Order XXIII, Rule 1, C.P.C. by limitation and further as the plaint does not disclose any cause of action against the defendants. The learned Single Judge vide his order dated 14‑3‑2000, allowed the application and rejected the plaint. Heard Mr. Muhammad Jamil, learned counsel for the appellant, and Mr. Khalid Rehman, learned counsel for the respondents. The learned counsel for the appellant mainly argued that Suit No.697 of 1992 was filed by the appellant for declaration and injunction only, whereas in Suit No. 1099 of 1998 the appellants are claiming the damages against the respondents and as such the same is based upon different cause of action and the learned Judge committed error of law in rejecting the plaint. He further argued that although the suit was withdrawn unconditionally, but Suit No. 1099 of 1998 has been filed on different causes of action and further that the plaintiff/appellant has continuous cause of action on the basis of which suit has been filed. He further argued that in the earlier suit being Suit No.697 of 1992 the plaintiff sought only declaration that the termination of the plaintiff's agency is arbitrary and unlawful, whereas in the subsequent suit the plaintiff sought damages suffered by the plaintiff on account of wrongful termination and further in respect of certain outstanding dues pertaining to spare parts, etc. supplied by the plaintiff/appellant. On the other hand, Mr. Khalid Rehman, learned counsel for the respondents, argued that in the earlier suit, while seeking declaration, the plaintiff has claimed damages to the tune of Rs.50,000,

000. He further argued that the present suit as well earlier suit, which was withdrawn by the appellant unconditionally, have been filed questioning the termination of the agreement between the parties and resulting alleged losses suffered by the appellant. He next argued that even if for any reason the alleged claim, for which suit has been filed now, has not been incorporated in the claim filed in earlier suit, even then the suit is barred under Order II, Rule 2, C.P.C. and the plaintiff/appellant cannot file the suit for recovery of their alleged outstanding dues/claim for which they have relinquished their rights in earlier suit. We have gone through the memo. of appeal, plaint filed in Suit No. 1099 of 1998 as well as plaint in earlier Suit No.697 of 1992. In Suit No. 1099 of 1998 the appellant claimed damages in respect of spare parts, replacement of 16 numbers guide shoes, wrong layout drawing, replacement of faulty parts, operation and maintenance manual, repair of motor, repair of logic board, holding up plaintiff's payment, labour charges being incurred due to delay in handing over of the lifts, delay in payment of. Rs.3,000,000 due to faulty EPROM Non‑provision of arrival Gong Facility, expenses incurred on purchase of damaged Encoder, holding of retention money to the tune of Rs.101,555,000. whereas in the earlier Suit No.697 of 1992, filed by the plaintiff/appellant challenging the termination of the agency between the parties, the plaintiff claimed a sum or Rs.50,000,000 on account of compensation general damages due to the loss or reputation and goodwill. The amount claimed in Suit No. 1099 of 1998 was due and payable on the date when the earlier Suit No.697 of 1992 was filed. The entire claim in Suit No.1099 of 1998 pertains to agency agreement, which was terminated admittedly on 16‑10‑1992. The appellant though not provided details of the damages/compensation claimed in earlier suit, but while withdrawing the suit unconditionally, the appellant specifically mentioned in his application under Order XXIII, Rule 1, C.P.C. as under:‑‑ "It is respectfully prayed on behalf of the plaintiff above named that this Honourable Court may kindly be pleased to permit the parties to withdraw the suit as the claim of the plaintiff has been settled out of Court. It is further prayed that the above mentioned suit may kindly be dismissed as withdrawn." From the perusal of the said application it appears that the appellant has withdrawn his suit unconditionally without reserving right to file the fresh suit in respect of any claim pertaining to agency agreement between the parties and even in the plaint in Suit No. 1099 of 1998 the plaintiff has not stated that the cause of action accrued to the plaintiff after withdrawal of the earlier suit. The only reason stated for filing the subsequent suit is that in a meeting held between the parties at Singapore it was clearly stated that to resolve the agency issue all the pending legal proceedings have to be withdrawn and the plaintiff in view of the fact that the plaintiff was ready to go to any extent for saving the relationship and, therefore, they withdrew the pending legal proceedings in the Court on 13‑3‑1996 as well as made payments of the rental of MECS tools, the matter which was pending for a considerable time. However, the defendants still failed to understand the point of view of the plaintiff and did not withdraw their decision of termination of agency, thereby caused tremendous loss and damage to the plaintiff. We are afraid that on the basis of these allegations the appellant can file fresh suit on the cause of action earlier available to the appellant and which the appellant intentionally either relinquished or has been incorporated though not specifically by claiming damages to the tune on Rs.50,000,

000. The learned Single Judge in his well‑reasoned order rightly came to the conclusion that the present suit is not maintainable and the plaint was liable to be rejected under Order VII, ‑Rule 11, C.P.C. The appeal is, therefore, dismissed with no order as to costs. H.B.T./S‑328/K Appeal dismissed