1983 PLP 3122 (CLC)

Date of hearing : 23rd January, 1983. The defendants' application under Order 11, rule 2, C.P.C. arises out of the following facts :‑ The plaintiffs entered into an agreement in December, 1974 with defendant No. 1 for purchase of agricultural laud for a consideration of Rs. 1,84,

646. The plaintiffs paid Rs. 18,000 as earnest money and the balance was to be paid at the time of registration of sale‑deed on 31st March, 1975. The possession of the land was delivered to the plaintiffs at the time of execution of the agreement. It is alleged that the sale‑deed could not be executed within the stipulated time and on 14th October, 1975 the defendant No. 1 extended the date of payment of balance amount of sale consideration on the condition that the plaintiffs were to pay 12% interest commencing from 12th May, 1975 till the entire amount was paid. The plaintiffs have alleged that since 1976 they have been re peatedly asking the defendant No. 1 to execute the sale‑deed, but he is putting off and is selling the said land to some other person on better terms. It has been alleged that the defendant No. 1 has illegally trans ferred the said property to the defendant No.

2. The plaintiffs had served a legal notice on 18th May, 1979 calling upon the defendants to execute a proper sale‑deed, but they have failed to do so. In these circumstances, the present suit has been filed for specific performance of agreement praying that the defendant No. 1 be directed to execute sale‑deed and for permanent injunction against the defendants restraining them from inter fering with the possession of the plaintiffs. It seems that prior to filing of this suit the plaintiffs had filed suit for declaration and permanent injunction against the defendants Nos. 1 and 2, the Deputy Commissioner (East), Karachi and the Station House Officer, Qaidabad Police Station as defendants Nos. 3 and

4. In that suit the plaintiffs bad alleged almost the same facts. It had been also stated that the defendant No. I had threatened and asked the plaintiffs to vacate the said land in their possession, otherwise they will face dire consequences. Faced with this threat as alleged in the plaint, the plain tiffs filed Suit No. 2031/79 in the Court of Senior Civil Judge praying for declaration that the plaintiffs are bona fide purchasers in possession of the property, the defendants cannot dispossess them except in due course of law, and permanent injunction restraining defendants from interfering with the possession of the plaintiff and that the sale in favour of the defendant No. 2 is a nullity. This plaint was returned by the learned Senior Civil Judge on 8th September, 1979 for presentation in a Court having jurisdiction to try such matter as the value of the property in dispute was beyond the pecuniary jurisdiction of the Senior Civil Judge, The plaintiff instead of presenting that plaint in this Court filed the present suit. In these circumstances the defendants filed application under Order II, rule 2, C. P. C. and Order VII, rule 11, C. P. C. for rejection of the plaint. Mr. Zia Parvez, the learned counsel has contended that the plaintiffs had filed earlier suit on the same facts and cause of action and having committed to seek relief for specific performance of the contract they are not entitled to seek that relief in the present suit. In this regard reference has been made to Order 11, rule 2, sub‑clause (2) which provides that where a plaintiff omits to sue in respect of or intentionally relinquishes any portion of his claim he shall not be entitled to sue in respect of the portion so omitted or relinquished. If a plaintiff omits to sue for all the reliefs flowing from a cause o action be will be debarred from filing a separate suit for the remaining reliefs arising out of the same cause of action. He cannot subsequently sue for such remedy which has been omitted by him unless the omission is with the leave of the Court. Besides, this in order to attract Order II, rule 2, it is necessary that the suit should be between the same parties. Mr: Zia Parveiz the learned counsel for the defendants has referred to the averments made in both the plaints filed by the plaintiffs and contended that the facts and allegations in both the plaints are identical. The facts relating to the agreement between the parties are the same, but the cause of action and reliefs in both the suits are completely different. In the earlier suit, the plaintiffs had sought relief by way of injunction and declaration as the defendants were threatening to disturb possession of land which was delivered to him in pursuance of the agreement. As the defendants had threatened the plaintiffs to dispossess them they bad rushed to the Court and asked for a declaration that they are bona fide purchasers in possession and cannot be dispossessed and further prayed that the sale in favour of defendant No. 2 is illegal. In this suit on the same facts the plaintiffs are seeking relief of specific per formance of the agreement. In both the suits the reliefs arise out of the same facts but they are based on different causes of action. Where there are several causes of action arising from the same transaction bar under Order 11, rule 2, will not apply. Mr. Zia Parvez contended that as the plaint returned by the Senior Civil Judge not having been presented it is still pending and, therefore, a fresh suit is barred. The learned counsel has relied on Mst. Hawa Bai and others v. Abdul Shakoor and others P L D 1970 Kar.

367. In this case the plaint was returned but instead of presenting it the plaintiffs made certain amend ments and filed a fresh plaint. The cause of action and prayer in both the suits remained the same. However in the present case the cause of action and the main prayers are different. This authority is, therefore, completely distinguishable. This application is, therefore, dismissed. M. Y. H Application dismissed.