PLJ 1991 SC 113

PLJ 1991 SC 113

[Appellate Jurisdiction]

Present: MUIIAMMAD AFZAL, ZULLAH, CJ AND ABDUL QADEER CHAUDHRY, J QALANDAR DIN and 4 others-Appellants

versus

RASUL KHAN-Respondent Civil Appeal No. 7 of 1988, dismissed on 14.11.1990.

[On appeal from judgment dated'22.11.1987, of Lahore High Court, Rawalpindi Bench, in RSA No. 230 of 1970]

Civil Procedure Code, 1908 (V of 1908)--

—O.H R.2-Pre-emption suit-Second suit for declaration failed and appeal was withdrawn by respondent without permission to file a fresh suit—Whether third suit by respondent was barred under Order II Rule I—Question of— Contention that cause of action for second and third suit was same—In this case, essential features among "bundle of facts" relating to second and third suit are totally diffcrent-In second suit, respondent had seriously challenged motives and intentions of transaction and sale was brought under challenge as collusive and non-existent-In third suit, sale itself was accepted as lawful and complete and then it was brought under challenge through pre-emption suit-Judge non-suited the petitioners on the basis of section 42 of the Specific Relief Act by misreading the plaint and the evidence."As these submissions require examination, we grant leave as prayed".It cannot be denied that Mst. Mureedan respondent No.6 was entitled to inherit from her father and on the contrary the first respondent and his children had no right to inherit either as son-in-law of the last male holder or as husband of Mst. Amiran who was the daughter of last male holder, because, she had died earlier in 1946 before the death of Lai Khan the last male holder who died in 1952. It is, therefore obvious and almost admitted that a wrong mutation had been sanctioned whereby Mr. Mureedan respondent No.6 who was entitled to inherit was excluded; while Mst. Amiran and her husband and some of his children from the second wife were allowed to inherit property of La! Khan without even a semblance of a right. The judgment in favour of Mst. Mureedan above referred respondent No. 6, rendered in first appeal was set aside by the High Court on the appeal of the respondent No. 1 and his children who had absolutely no right to inherit Lai Khan's property and thus had no right to file an appeal. In other words they had no locus standi to file an appeal. In this view of the matter the appeal being incompetent should have been dismissed on this solitary ground.But the matter would not end here. The High Court as is apparent from the leave grant order faced a difficulty that Mst. Mureedan had not filed the suit and she being the only beneficiary was in the array of parties as a respondent, therefore, perhaps it was further thought, she could not be granted any relief by the first appeal Court.

This, with respect, was not a correct approach to the difficulty for solving the same. Order XLI rule 33 C.P.C. permitted the first appeal Court to grant a decree in favour of Mst. Mureedan respondent before it. It reads as follows:—

ORDER XLI.

Rule 33. Power of Court to AppeaI.~T\ie Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection.

(Provided that the Appellate Court shall not make any order under Section 35-A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order).

Looked at from this angle the difficulty visualised by the High Court, vis-avis, the provisions of the Specific Relief Act would not present any insurmountable difficulty. It may be clarified that had there been any such difficulty we would not have hesitated to exercise further inherent power to do complete justice by undoing an un-Islamic mode of devolution of inheritance of Lai Khan deceased, the last male holder in this case whereby a female heir Mst.Held: Bar urged as contained in Order II Rule 2 of C.P.C. was not attracted—Appeal dismissed. [P.116]A,B&C

Maulvi Sirajul Haq, Senior Advocate, Supreme Court and Mr. M^4. Siddiqui,

A.O.R. for Appellants.

Mr. Manzoor Ilahi, Ex-AOR for Respondent.

Date of hearing: 14.11.1990.

judgment

Muhammad Afzal Zullah, CJ.~This appeal through leave of the Court, by the defendants' side in a suit for pre-emption, is directed against the judgment dated 22.11.1987 of the Lahore High Court; whereby the respondent/plaintiff/pre-emptor's Regular Second Appeal was allowed and his suit was decreed. Leave grant order reads as follows:--

"The brief facts are that land measuring I Kanal 10 marlas bearing Khasra No. 539, situate in Mauza Murraria, Tehsil Attock, was purchased by Qalandar Din andhis three brothers, the petitioners, for a sale consideration of Rs. 8,000.00. The sale was pre-empted separately by Karam Khan and Rasul Khan respondent. As both the suits had arisen out of the same sale, these were consolidated after impleading the rival pre-emptors. On 2.12.1974 the parties came to a compromise, as a result first decree for pre-emption was granted to Karam Khan who was directed to deposit the pre-emption money, vis., Rs. 8,000.00, till 4.1.1975, in default, second decree for pre-emption was passed in favour of Rasul Khan, the inferior pre-emptor, who was directed to deposit the decretal amount of Rs. 8,000.00 by or before 4.2.1975. Karam Khan deposited theamount and thereafter took out execution proceedings. It was on 11.4.1975 that the parties submitted an application whereunder Karam Khan surrendered all his rights in favour of the petitioners (vendees judgment -debtors) and prayed for the dismissal of the execution proceedings, which was accordingly done. No sooner Rasul Khan respondent came to know of this development he filed a suit for a declaration that Karm Khan had obtained the decree through collusion and fraud and that he should be permitted to deposit the amount. This suit was, however, dismissed on 22.10.1975 by the learned Civil Judge who was of the view that Rasul Khan's remedy lay under section 47 of the Code of Civil Procedure and that the suit was incompetent. Rasul Khan challenged this order by way of an appeal but the same was withdrawn. Thereafter Rasul Khan respondent filed the present suit for possession by pre-emption of the land in dispute. This suit was Contested and as a result of the pleadings of the parties as many as eight issues were framed, of which issue No. 5 is relevant and is couched in the following language:

"5 Whether suit is barred by provisions of Order II, rule 2 C.P.C. ?"

After recording the necessary evidence, the learned Civil Judge decreed the suit of Rasul Khan respondent vide his judgment dated 29.1.1977. This judgment was, however, reversed by the learned Additional District Judge, Campbellpur vide his judgment dated 9.1.1978, on the appeal filed by Qalandar Din etc petitioners, who relying on the authority of thisCourt reported as Abdul Hakam and 2 others v. Saadullah KJian and 2 others (PLD 1970 S.C. 63) held that "in this case the relief on the ground of sale was available to the respondent (Rasul Khan) at the time of the institution of the previous suit. While withdrawing the appeal from it, he did not withdraw it with the permission of the Court, neither did he take action u/s 47 of the C.P.C. It is correct that the appellants (the petitioners) had adopted a method to deprive him of the land but by his own actions, the respondent had created legal clog against himself." This judgment was impugned by Rasul Khan respondent in the High Court, where he succeeded through the impugned judgment in having reversed the order of the Additional District Judge.

"We have heard the learned counsel for the petitioners and the caveator. The learned counsel for the petitioenrs contened that the learned Judge in his Chambers has failed to appreciate that the grievance arose from the same action which was the cause of action in the previous suit and the present cause of action was available to the respondent at that stage and it was, therefore, incumbent upon him to have taken the present position in that case. Having failed to do so, it amounted to an omission and now he cannot sue for the relief so omitted. As against him, the learned counsel for the caveator contended that the previous cause of action was separate and distinct whereas the present cause of action was that the action of the pre-emptor decree-holder amounting to sale after receiving consideration during the execution proceedings and this was a fresh valid cause of action and the suit was not hit by the provisions of Order II rule 2 C.P.C. Reliance in this case was placed by him on Sardari Mai v. Hirde Nath (A.I.R. 1925 Lahore 459) and Inzar Gnl v. Hajab Gul (A.I.R. 1941 Peshawar 26).

"We have given our careful consideration to the arguments advanced by the learned counsel for the parties and we think that the question that requires determination by this Court, is whether on the given facts and circumstances of the case the suit of the respondent (Rasul Khan) would come within the mischief of Order II rule 2 C.P.C. Leave is thus granted."

The above order shows that the crucial question is: whether the provisions of Order II rule 2 C.P.C. barred the third suit of the respondent/plaintiff in this case—on first suit he had succeeded in obtaining a pre-emption decree with second right to pre-empt. The first right was granted in favour of the other pre-emptor; namely, Karam Khan. This decree in favour of Rasul Khan pre-emptor was frustrated by Karam Khan and the vendee, by Karam Khan having sold the land obtained through pre-emption again to the vendees; namely, Qalandar Din and his three sons-the appellants herein. This transaction was effected at such a stage and point of time that the right to execute decree in favour of Rasul Khan had by that time passed. He then thought and believed that he had been defrauded through a collusion between the first pre-emptor and the vendees, therefore, he launched the second litigation through a suit for declaration seeking the annulment of transaction between the first successful pre-emptor and the vendees on ground of fraud. In this suit he did not succeed and filed an appeal which was withdrawn without the permission to file a fresh suit.

Obviously under Order II rule 2 C.P.C. he could not have filed the third suit on the basis of the same cause of action as was the basis of the second suit. Therefore, he filed third suit this time without throwing any serious challenge to the validity of the transaction between the first successful pre-emptor and the vendees which he had done in the second round of litigation through the second suit. This time he did not challenge the validity of the transaction between them. On the other hand he accepted it as a valid sale and filed a suit for pre-emption which was decreed on the assumption that this third suit was based on a different cause of action from what was'the basis of the second suit filed by him (Rasul Khan). However, the appellant's first appeal succeeded and the suit was dismissed but the respondent/plaintiffs second appeal was allowed by the High Court which led to the grant of leave to appeal.

We have heard the larened counsel at length. While his plea throughout remained that the cause of action for the second litigation/suit and the third litigation/suit remained the same, we strongly feel that it had completely changed. His contention that, as he put at, "what prompted the respondent/plaintiff to file the second suit"; namely, the urge for annulment of transaction between the first pre-emptor and the vendees remained the same which prompted him to file third suit. This criterion of "what urges plaintiff to file a suit" has long been discarded as a proper definition/connotation of what is known as "cause of action". It is accepted rule now that it consist's of bundle of facts and circumstances and other things and not just one element amongst them which ultimately urges a plaintiff or prompts him to file the suit as an immediate cause. In this case the essential features amongst "the bundle of facts" in the facts and circumstances, relating to the second litigation/suit and the third litigation/suit are totally different.

In the second suit the respondent had seriously challenged the motives and intentions of the transaction. Not only this he had made positive assertion of fraud and collusion and above that he had not accepted the genuineness of the transaction as a sale. If these elements particularly last one would have remained the same as before, in the third suit, the very basis for suit for pre-emption in the third suit would have been obliterated. Without a sale there cannot be a preemption. In the second suit the sale was brought under challenge as collusive and non-existent.

In the third suit the sale itself was accepted as lawful and complete and then it was brought under challenge through a suit for pre-emption. Similarly there are other factors constituting the causes of action in the two suits which are totally different. Accordingly, the bar urged by the learned counsel as contained in Order II rule 2 C.P.C. was not attracted.Learned counsel also tried to show that the third suit would be barred by bar or res judicata. This plea was not earlier urged nor in the present circumstances we are inclined to examine this additional plea because leave to appeal was not granted on this question. And as an exercise of discretion we would not grant leave on this additional point during the hearing of this appeal because of the equities which go in favour of the respondent's side.In the light of what has been stated above this appeal has no force and isdismissed with no order as to costs.directed against the dismissal by the High Court of appellants' Constitutional (Writ) Petilioi. which had arisen out of a lamj settlement case. The order for grant of leave to appeal reads as follows:-"The dispute related to land measuring 16 kanals and 13 marlas situated in Multan Khurd District Chakwal. It was allotted on temporary basis to Sardar AH respondent No. 2 a refugee from Jammu and Kashmir with no claim. He is alleged to have made an application on 31st December, 1968(?) for its cancellation and the Deputy Settlement Commissioner (Land) by his order dated 31st December, 1964 cancelled the same. Thereafter it was allotted to Muhammad Alam respondent No. 3 on 27th February, 1965. He sold the whole of the said land in the. following manner; on 3rd June 1965 he sold 8 kanals and 13 marlas out of it vide registered sale deed to petitioners No.l and 2 and the remaining land was sold on 28th June, 1965 to one Abdur Rashid. In May 1968 this Abdur Rashid on his part sold the portion purchased by him to Muhammad Khan predecessor of petitioners Nos. 3 to 11. Thus all the petitioners became purchasers of the entire disputed land. Then after 8 years i.e. in 1971, Sardar Ali respondent No.2 filed an appeal before the Additional Settlement Commissioner (Land) Campbellpur challenging the order of cancellation of his temporary allotment without impleading the petitioners as party. This appeal was allowed on 15th May, 1972. Thereupon the petitioners filed writ petition No. 328-R of 1975 which was accepted by a learned Judge of the Lahore High Court Rawalpindi Bench vide Judgment dated 14th February, 1983 and the case was remanded. Thereafter the Additional Commissioner (Revenue/Settlement Commissioner) Rawalpindi on remand passed an order dated 22nd May, 1986 upholding the order passed by the Additional Settlement Commissioner (Land) dated 15lh May, 1972. It is this order which was challenged by the petitioners by way of a writ petition which had been dismissed by a learned Judge of the Lahore High Court Rawalpindi Bench on 5th July, 1986.

"We grant leave in this case, inter alia, to examine the contention of-the learned counsel for the petitioners as to whether delay in the filing of the appeal by Sardar Ali respondent No. 2 could have been condoned by the Settlement Commissioner (Land) by invoking the provisions of Section 18 of the Limitation Act 1908, without there being any application for condonation of the same and without holding any inquiry in respect of it, particularly when after the lapse of 8 years vested rights had been created of the petitioners who were bonaflde purchasers without notice".

Learned counsel has reiterated the pointes urged at the time of grant of leave to appeal.

Similar was the position before the Additional Commissioner/Settlement Commissioner whose order was impugned before the High Court by the appellants as well as before the High Court itself at the time of the hearing of the Writ Petition which was dismissed. The following observations by the Settlement Commissioner and by the High Court are relevant in the present context:--

I. Settlement Commissioner's Order dated 22.5.1.986."Learned counsel for the appellant (respondent herein) has argued that the cancellation of his temporary allotment and its subsequent allotment to Muhammad Alam was made in his absence and therefore as held in PLD-1973-Notes-Page 66, Lahore, the order under appeal is ab initio void and no limitation runs against it. It was based on fraud, for which delay can be liberally condoneld under section 18 of Limitation Act 1908. I find it a clear case of fraudulent cancellation and fraudulent allotment of evacuee land and as such, provision of Section 18 of Limitation Act is invoked. This section 18 is applicable to special laws under the provision of section 29(2) of the same Limitation Act, 1908,1, therefore, proceed to condone the delay in filing appeal by Sardar Ali to Additional Settlement Commissioner (Land), Attock u/s 18 of Limitation Act, 1908."Under the above views, I accept this appeal and set aside the order dated 31.12.1964 of DSC (Land), Talagang whereby he ad cancelled the temporary allotment of Sardar All. At the same time, the allotment of the disputed land in the name of Muhammald Alam respondent at Khata RL-II No. 27, ultan Khurd made by the DSC (Land), Talagang is also cancelled ".

II, High Court Order dated 5.7.1986.

"The case of the petitioners (appellants) is lhat the appeal of Sardar Ali was barred by Limitation and there was no justification for the Settlement Commissioner for condoning it. I find no merit in this contention. A fraud had taken place and the land in the name of Sardar Ali was cancelled in a fraudulent manner. Sardar Ali discovered this fraud only in 1971. The appeal brought by him on 17.1.1972 was, therefore, within limitation and no condonation of delay was called for. On merits the leanred counsel has argued I hat temporary allottees have no. right to compete with genuine claimants, but this stage could arrive only if there was a competition between the temporary allottees and the so called genuine claimant. In the present case Sardar Ali's land was cancelled on 31.12.1964 fraudulently on the basis of an alleged application made by Sardar Ali himself seeking cancellation of the land. Sardar Ali will, therefore, have to be restored to the position which he enjoyed on 31.12.1964. The question whether he can compete with anybody elsle did not arise on that date. The argument of the learned counsel, that the temporary allottees could not compete with a genuine claimant is, therefore, without any force.In view of the above considerations the order of the Additional Commissioner restoring Sardar Ali to the position which he enjoyed on 31.12.1964 is entirely justified".Learned counsel vehemently rather with extraordinary zeal pleaded the case of the appellants mainly on the ground that in the circumstances of this case the respondent Sardar Ali should have been penalized for fraud committed with him and the Writ Petition should have been allowed by the High Court, because, according to him, the appcllantls who were the innocent beneficiaries but through