PLJ 2004 Peshawar 194 (DB)

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

—O.XXIII, R. 1-Earlier suit on the same subject matter between the same parties was withdrawn, without seeking permission to file fresh suit, on same subject-matter-Subsequent suit on the same subject-matter between the same parties would be neither competent nor maintainable.

[P. 197]A

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

—O.II, R. 2-Omission of part of claim in earlier suit-Effect-Plaintiff has to
include whole of his claim to which he was entitled in every suit filed by
him-Once any claim was omitted/relinquished, he could not sue in
respect of relinquished claim in terms of O.II, R. 2 G.P.C. [P. 197] B

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

—O.VII, R. 11, O.XXIII, R. 1, O.II, R. 2 & S. 11-Constitution of Pakistan
(1973), Art. 199-Rejection of plaint in terms of O.VII, R. 11 C.P.C.-Trial
Court rejected defendants' such application while Appellate Court,
accepted application for rejection of plaint and rejected the same-
Legality-Rejection of plaint was sought on the ground that earlier suit
was withdrawn by plaintiff without seeking permission to file fresh suit
and that the same was also hit by the principles involved in O.II, R. 2 &
O.XXIII, R. 1 C.P.C.-Such application could be decided after framing
issues and leading of evidence-Order of trial Court rejecting application
of defendant, was restored while that of Appellate Court accepting such
application and rejecting plaint was reversed. [P. 197] C

2003 SCMR 1284; 1996 MLD 1409; 1999 YLR 991; 2000 CLC 1524;

2001 MLD 440; 2001 YLR 736; 2002 SCMR 338; PLD 2001 SC 325 and

PLD 1983 Pesh. 100 ref.

Mr. Jan Muhammad Khan, Advocate for Petitioners. Miss Nusrat Yasmin, Advocate for Respondents. Date of hearing: 26.1.2004.

judgment

Talaat Qayyum Qureshi, J.-Haji Mir Alam Shah plaintiff, the predecessor of present petitioners, filed Suit No. 284/1 on 29.9.1996 against Adam Khan and 14 others, respondents/defendants, in the Court of learned Civil Judge Takht Bhai seeking declaration to the effect that he was owner in possession of land measuring 129 Kanals 1 Marias situated at Mauza Pir Sado Tehsil and District Mardan, more particularly described in the heading of the plaint and that Mutation No. 1063 attested on 13.9.1941 as well as Mutation No. 3813 attested on 25.1.1979 in favour of the respondents were wrong and illegal, hence ineffective upon their rights. Before filing the

196 Pesh. Hqji mir alam shah v. adam khan PLJ

(Talaat Qayyum Qureshi, J.)

written statement the respondents/defendants filed an application on 15.1.1998 under Order 7 Rule 11 CPC for rejection of the plaint which application was resisted by the plaintiff by filing written reply. The learned trial Court after hearing the learned counsel for the parties dismissed the said application vide order dated 8.6.1998. Feeling aggrieved with the said order, the respondents/defendants filed Appeal No. 13/98 in the Court of leaVned Additional District Judge Mardan which was accepted, the order passed by the learned trial Court was set aside and the plaint was rejected vide judgment/order dated 22.5.1999. Being not contended with the judgment/order of the learned Appellate Court, the petitioners filed C.R. No. 144/2000 which was converted by this Court into writ petition in hand (No. 1264/2002).

2. Mr. Jan Muhammad Khan, the learned counsel representing the
petitioners, argued that the learned trial Court had rightly dismissed the
application for rejection of the plaint because it had neither framed any issue
as to whether the suit filed by the plaintiff was hit by the principle of res
judicata nor the parties were invited to lead evidence in support of their
claims. Reliance in this regard was placed on Punjab Board of Revenue
Employees Cooperative Housing Society Limited versus Additional District
Judge Lahore and others (2003 SCMR 1284).

3. It was also argued that the previous suit was withdrawn as per
compromise effected between the parties but the respondents later on did
not act upon the compromise, hence the petitioners had to file fresh suit
which was not barred under any law.

4. On the other hand, Miss. Nusrat Yasmin, the learned counsel
representing the respondents, argued that the predecessor of petitioners,
namely, Mir Alam Shah had earlier filed Suit No. 119/1 on 5.7.1976 against
Mukarram Khan, the predecessor of respondents but the same was
dismissed as withdrawn on 16.4.1978. Then he filed second Suit No. 712/1
on 23.1.1980 against Adam Khan and others, the presents respondents
which too was dismissed as withdrawn vide order dated 7.12.1982.
Thereafter, he filed third Suit No. 344/1 on 31.7.1990 which too was
withdrawn due to compromise on 7.3.1991. All the suits including the suit in
hand were between the same parties and over the same property, therefore,
the present Suit (No. 284/1) brought on 29.9.1996 was not only hit by
Order 2, Rule 11 CPC but was also hit by Order 23, Rule 1 CPC and the
principle of res judicata. The learned Appellate Court has rightly appreciated
the above position and the impugned judgment and decree needs no
interference. Reliance in this regard was placed on 1996 MLD 1409, 1999
YLR 991, 2000 CLC 1524, 2001 MLD 440, 2001 YLR 736, 2002 SCMR 338,
PLD 2001 SC 325 and PLD 1983 Peshawar 100.

5. We have heard the learned counsel for the parties at length and
perused the record.

7. There is also no dispute that the plaintiff has to include whole of j
his claim to which he was entitled in every suit filed by him but once any
claim was omitted/relinquished under Order 2, Rule 2 CPC, he could not
sue in respect of relinquished claim.

8. Perusal of the available record shows that the parties and their
predecessors earlier too had litigations between them. Neither all the
pleadings of the parties showing that the old litigations were over the same
subject-matter and between the same parties nor all the judgments/decrees
passed therein were placed on record. Had the learned trial Court on receipt
of application under Order 7, Rule 11 CPC framed issue as to whether the
suit filed by the petitioners was hit by the provisions of Order 23, Rule 1(3)
CPC, Order 2, Rule 2 CPC and the principle of constructive res judicata and
invited the parties to lead evidence, they wotrikl have placed on record all the
judgments/decrees passed in the previous litigation and the said material
would have provided foundation for the learned Courts below to resolve
these issues but the Appellate Court had failed to appreciate the said
position. In a recent judgment reported as Punjab Board of Revenue.
Employees Cooperative Housing Society Limited versus Additional District
Judge Lahore and others (2003 SCMR 1284' wherein it was held:

"Apart from this, the judgments passed by the Courts below in this case are perfectly in accordance with law for rejection of the plaint was sought on the ground that the matter was barred by res judicata and it has been rightly held that the same could be decided after framing regular issue and leading of evidence.'

9. Keeping in view the dictum laid down by the August Supreme j
Court of Pakistan in the above quoted judgment, we allow the writ petition
in hand, set aside the judgment and decree dated 22.5.1999 passed by the
learned Additional District Judge Mardan and restore that of the learned
trial Court Takht Bhai dated 8.6.1998. There shall be no order as to costs.
Since the parties have been locked up in litigation for the last so many years.
the" learned trial Court is directed to decide the above mentioned issue
within a period of three months positively. None of the parties be given any
unnecessaiy adjournment. The office is directed to remit the record back to
the said Court within a week positively.