2002 PLP 1784 (CLC)

Date of hearing: 7th March, 2002. This application under Order VII, rule 11, C.P.C. has been moved by defendant No.1 seeking rejection of the plaint on the ground that the relief claimed in the instant suit could have been sought in the earlier Suit No.274 of 1995 filed by Mst. Shamim Ashfaq, the plaintiff against Muhammad Rafiq and Shaikh Suleman the defendants Nos. l and 2 respectively for declaration and permanent injunction, but she omitted to 'seek such relief, therefore, the suit was barred under Order 11, rule 2, C. P. C.

2. It would not be necessary to lay down the details of the facts averred in the plaint, but suffice it to say that as claimed by the plaintiff a plot, bearing No.8/CL‑8/3 belongs to plaintiff and she alongwith her family members is residing in the house constructed on this plot since 1993. In April, 1995 or about, the bungalow on the adjoining plot was purchased by defendants Nos. l and 2, who obtained permission for demolition of the old construction of the said bungalow and started demolition of the old construction and allegedly their employees/servants in utter violation of law/rules damaged the portion wall/boundaries/ passage meant for the sewerage and gutter pipelines. The plaintiff, therefore filed Suit. No.274 of 1995 wherein she sought the following reliefs. "(a) to declare that the defendants and/or their employees, agents, servants, and labour have no right, title and interest to trespass/encroach upon and dismantle and boundary wall/doors and/or block the passage which is meant for sewerage or drainage purposes for the use of plaintiff and her family members; (b) issue injunction permanently restraining the defendants and/or their employees, servants, agents and labour from damaging/ dismantling the boundary wall and other walls including any portion of the house of the plaintiff on Plot No.8/CL‑8/3, Civil Lines, Karachi, and/or acting in any manner, whatsoever to the detriment of the rights, interest of the plaintiffs' life and property; (c) to order demolition of unauthorized block/bricks put up by the defendants blocking the passage which hitherto was being enjoyed or used by the plaintiff and/or her family members, employees, agents, through the gate owned and constructed by the plaintiff."

3. In the said plaint in para.l3 the plaintiff's apprehension was reflected about constructing a high‑rise building. However, she made efforts and came. to know that plan for high‑rise building had been approved, therefore, she filed the present suit and besides the parties in Suit No.274 of 1995, added K.B.C.A. as a defendant and sought a relief in the form of injunction in the following terms:‑‑ "(a) to declare that the defendants and/or the authorities concerned have no power to allow construction and/or erect the high‑rise building with 60 ft. or more in height on the Plot No.8/CL‑8/2, Civil Lines, Karachi, and that the same is illegal against the rules and regulations and that otherwise also is not justified; (b) to restrain the defendants and/or other persons acting under and through them permanently from erecting the said multi‑storyed flats approved by defendant 3, and/or allowing the proposed construction on the said plot by defendant 3 and/or any authority or authorities concerned; (c) to allow any other relief, which this Honourable Court deem fit and expedient under circumstances of the case; (d) to award costs of the suit against the defendants in favour of the plaintiff."

4. Mr. Faisal Kamal submitted that within the meaning of Order II, rule 2, C.P.C. the plaintiff, having omitted to seek the relief in the terms aforementioned was not entitled to bring a suit and seek relief for same cause of action, as such the suit being barred under Order II, rule 2, C.P.C. the plaint was liable to be rejected within the meaning of Order VII, rule 11(d), C.P.C: He relied on The Rivers Steam Navigation Co. Ltd. v. The District Council of Bakraganj PLD 1970 SC 63, Muhammad Khan v. Arshad Jamil and 1987 MLD 671 and Abdur Rasheed v. Burmah Shell PLD 1966 (W . P.) Kar. 126.

5. Mr. M. Naimur Rahman submitted that the causes of action in both suits are distinctly different and the grounds, on which the suits are founded, are wholly different as the first one is based on actual demolition of the wall and causing damage to the property of the plaintiff, whereas the second one relates to construction of the high‑rise building by defendants I and 2 on their plot against the regulations coupled with causing consequential losses to the plaintiff. He relied on the same authority The Rivers Steam Navigation Co. Ltd. v. The District Council, Bakraganj PLD 1970 SC 63 and also Mst. Saleema Begum v. Aulad Ali Shah PLD 1981 SC (AJ&K) 128 and Syed Luqman Shah v. District Judge, Haripur 1997 CLC 27.

6. The principles laid down in the authorities cited above relate to bar of second suit if the causes of action are exactly the same and for the purpose of formulating a rough test for determining this point the Honourable Supreme Court in Abdul Hakeem's case observed that it is to be seen if the same evidence will sustain both the suits. Same was the vie in Abdul Rashid's case PLD 1966 Kar.

126. Additionally in the Karachi case 1987 MLD 671 it was observed that the same party shall not be vexed twice if the relief has been omitted in the earlier suit. In the instant matter the questions basically depend upon two different set of facts. On perusal of the plaint in the instant suit it appears that the earlier suit was directed against the actual action taken by the defendants Nos. l and 2 by demolishing the wall and dismantling the doors of plaintiff and, blocking the passage, therefore, the suit was confined to the relief claimed to that extent alone. Para. 13 of the plaint further shows that there was apparently no dishonesty on the part of the plaintiff, therefore, in simple words it was averred that seemingly there were plans to raise high‑rise building. The averments in the plaint of the instant suit indicate that further efforts were made by the plaintiff whereby she came to know that a high‑rise building was being raised and a plan was approved, therefore, the case of the plaintiff in the instant suit is that the raising of a high‑rise building is basically against the rules and regulations. Violation of rules is also alleged against K.B.C.A. who was not a party in the earlier suit. No doubt, to some extent the blocking of passage and other amenities may be common, but the cause of action in my view is quite distinct in both these suits, as the set of evidence required to prove the controversial issues would be varying in many respects. The principle laid down in Abdul. Hakeem's case when applied to the instant matter, would show that the set of evidence, being different, it cannot be said that there is a common cause of action. Consequently, it cannot be held that the instant suit is barred under Order 11, rule 2, C.P.C. The application is as such without substance and is dismissed.

7. The authorities cited by Mr. M. Naimur Rahman further dilate upon the scope of Order II, rule 3, C.P.C. and in that perspective while examining the facts of both cases I am convinced that it would be just and proper if both the suits are consolidated. Learned counsel for the parties have also no objection if the suits are consolidated. Accordingly, both the suits are consolidated and Suit No.325 of 1995 shall be treated as the leading suit. S.A.K./S‑209/K Order accordingly.