PLJ 2009 SC
1081
[Appellate
Jurisdiction]
Present: M.
Javed Buttar & Sabihuddin Ahmed, JJ.
MUHAMMAD ALI
and others--Petitioners
versus
Civil
Petition No. 1838 of 2008, decided on 11.3.2009.
(On appeal
against the judgment dated 22.10.2008 passed by Lahore High Court, Bahawalpur
Bench, Bahawalpur in C.R. No. 341-D of 2008).
Civil
Procedure Code, 1908 (V of 1908)--
----S. 2(2)
& O. VII, Rr. 11 & 13--An order rejecting a plaint is most certainly a
decree in terms of the definition of the expression "decree"
contained in Section 2(2), CPC which explicitly provides that the expression
shall be deemed to include the rejection of a plaint--It would, therefore,
follow that it would carry the same degree of finality and enforceability
unless provided otherwise by law.
[P. 1084] A
Civil
Procedure Code, 1908 (V of 1908)--
----O.VII,
Rr. 11 & 13--Rejection of plaint--Multiplicity of litigation--No doubt
Order VII Rule 13 does contemplate that rejection of a plaint shall not of its
own force preclude the plaintiff from presenting a fresh plaint--Nevertheless
the underline words are important and clearly indicate that other provisions
relating to avoiding multiplicity of litigation and attributing finality to
adjudications could not be ignored--For instance if a plaint under Order VII is
rejected on the ground of the relief being undervalued or failure to affix
proper Court fee stamps a fresh plaint could always be presented upon
rectifying the defects within the prescribed period of limitation--Nevertheless
if the plaint is rejected after proper adjudication as to the non existence of
cause of action or upon the suit being barred by law and findings could operate
as resjudicate and would not enable the plaintiff to re-agitate the same
question through filing a subsequent suit upon the same cause of action and
seeking the same relief--Therefore, the question whether a fresh plaint could
be presented under Order VII Rule 13 or otherwise would depend upon the nature
of the order passed by the Court in rejecting a plaint under Order VII Rule
11--Leave refused. [P. 1484] B
PLD 2005 SC
511, ref.
Mr. Muhammad
Ibrahim Khan, ASC and Mr. G.N. Gohar, AOR for Petitioners.
Nemo for
Respondents.
Date of
hearing: 11.3.2009.
Order
Sabihuddin
Ahmed, J.--This petition is directed against a judgment of a learned single
judge of the Lahore High Court (Bahawalpur Bench) dated 22.10.2008 dismissing
Civil Revision No. 341-D of 2008 in limine.
2. The undisputed facts appear to be that the
petitioners filed Suit No. 975 of 2001 claiming certain rights and interests in
immovable property against the respondents in the Court of Senior Civil Judge,
Bahawalnagar on 27.04.2001. Subsequently upon their application the suit was
allowed to be withdrawn on grounds of some formal defects with permission to
file a fresh suit subject to payment of costs of Rs.1000/- by order dated
06.03.2002. The petitioners filed another suit No. 290 of 2003 on the same
cause of action on 02.09.2003 but without depositing costs imposed by the
Court. This suit however was unconditionally withdrawn by the petitioners. A third
suit Bearing
No. 813 of
2003 was also filed during the pendency of the second suit on the same cause of
action on 08.09.2003 without disclosing such pendency and without depositing
costs of Rs.1000/- which came to be disposed of by rejection of plaint by the
trial Court on 02.12.2004. It may be pertinent to mention here that the date of
filing of the suit has not been divulged in the memo of petition before this
Court and the title of several documents purported to be certified copies
obtained from the office of the District Judge, Bahawalnagar including the
written statements of the respondents, the applications under Order VII, Rule
11 and the challan regarding deposit of costs repeatedly show 08.09.2004 as the
date of filing of the suit. The order rejecting the plaint passed by the trial
Court does not contain the number of the suit or the year of its filing. Indeed
it was important to consider whether the third suit was filed during the
pendency of the second one or after the unconditional withdrawal of the latter.
We are sadly disappointed in the casual manner in which certified copies of
documents were prepared in the Court of District Judge, Bahawalnagar. Learned
AOR for the petitioners not merely fail in referring to the date of filing of
the third suit in the memo of petition itself but in fact went on to admit in
the aforesaid memo that the said suit was filed "by concealing facts from
the Court". We regret to say that such lapses in pleadings cause
unnecessary wastage of time in dispensation of justice and need to be avoided.
4. Nevertheless instead of questioning the
appellate order before a higher forum the petitioners attempted to try their
luck with a fourth suit on the same cause of action Bearing No. 1063 of 2006 on
01.09.2006. Once again applications for rejection of the plaint were filed
which were accepted by the trial Court in terms of the order dated 25.10.2007,
the operative part whereof is reproduced as follows:--
"It is
evident from the record that the petitioners had already filed a suit which was
dismissed and appeal was also filed and the appeal also met with the same fate.
The subject matter has already been decided by the Court of competent
jurisdiction, therefore, the application U/O 7, Rule 11 CPC is hereby accepted
and the plaint is hereby rejected U/O 7, Rule 11 CPC. Parties are left to bear
their own costs."
5. Petitioners preferred an appeal against the
said order which came to be dismissed by the Additional District Judge on
25.09.2008. Thereafter they preferred a civil revision application against the
aforesaid order which was dismissed in limine vide the impugned judgment by the
Honourable High Court. Learned counsel for the petitioners urged that an order
rejecting a plaint could not be treated as a decree and, therefore, after
rejection of one plaint another could always be presented. Moreover, he urged
that the petitioners claim was never adjudicated upon on merits and, therefore,
filing of successive suits either after withdrawal of one or after rejection of
plaint could not be held to be barred upon the principles of resjudicata.
6. We have heard learned counsel and are not
impressed by either of the contentions. In the first place an order rejecting a
plaint is most certainly a decree in terms of the definition of the expression
"decree" contained in Section 2(2) CPC which explicitly provides that
the aforesaid expression shall be deemed to include the rejection of a plaint.
It would, therefore, follow that it would carry the same degree of finality and
enforceability unless provided otherwise by law. As such after the expiry of
the period of limitation for a second appeal against the order dated 21.02.2005
passed by the learned Additional District Judge, the order rejecting the plaint
acquired complete finality.
7. No doubt Order VII Rule 13 does contemplate
that rejection of a plaint shall not of its own force preclude the plaintiff
from presenting a fresh plaint. Nevertheless the underlined words are important
and clearly indicate that other provisions relating to avoiding multiplicity of
litigation and attributing finality to adjudications could not be ignored. For
instance if a plaint under Order VII, Rule 11 is rejected on the ground of the
relief being undervalued or failure to affix proper Court fee stamps a fresh
plaint could always be presented upon rectifying the defects within the
prescribed period of limitation. Nevertheless if the plaint is rejected after
proper adjudication as to the non-existence of cause of action or upon the suit
being barred by law the findings could operate as resjudicata and would not
enable the plaintiff to re-agitate the same question through filing a
subsequent suit upon the same cause of action and seeking the same relief. In
our humble view therefore the question whether a fresh plaint could be
presented under Order VII, Rule 13 or otherwise would depend upon the nature of
the order passed by the Court in rejecting a plaint Under Order VII, Rule 11. A
somewhat similar view appears to have been taken by this Court in Muhammad
Salemullah and others Vs. Additional District Judge,
8. In our opinion, therefore, in the instant
case a fresh plaint even if permissible after rejection of the plaint by the
trial Court could not be presented after the decree had been appealed against,
disposed of and limitation for preferring a second appeal allowed to expire.
Moreover, it is evident from the record that the third suit was filed by the
petitioners during the pendency of the second one and was as such liable to be
stayed in view of the mandatory provisions of Section-10 and could proceed only
after the disposal of the second one. The moment petitioners abandoned their
claim and unconditionally withdrew the second suit they could be held barred from
pursuing the third suit on the same cause of action in terms of the spirit of
Order XXIII, Rule 1. With profound respects in our humble opinion the
provisions of Section-10 ought to be read along with Order XXIII, Rule 1
because otherwise the object of the latter could possibly be defeated.
Nevertheless since a somewhat contrary view appears to have been taken by a two
Member Bench of this
Court in the
case of Jeewan Shah Vs. Muhammad Shah and others reported in (PLD 2006
SC 202) we would avoid entering this controversy and leave it to a larger Bench
to resolve the same in an appropriate case.
9. Be that as it may, even if it be assumed that
the third suit was maintainable on grounds of it having been filed prior to
withdrawal of the second one the fact remains that the fourth one was filed on
the same cause of action after the unconditional withdrawal of the second one
and dismissal of the petitioners appeal against the order rejecting the plaint
in the third suit. Evidently both these factors were sufficient to render the
suit not maintainable. Obviously when the petitioners had unconditionally
withdrawn the second suit on 12.09.2003 the matter could not be reagitated
through a fourth suit in 2006 because of the bar contained in Order II, Rule 2 and
Order XXIII, Rule 1 as held by this Court, inter-alia, in Hashim Khan Vs.
National Bank of Pakistan, Head Office At I.I. Chundrigar Road, Karachi and
Branch Office at M.A. Jinnah Road, Quetta (PLD 2001 SC 325) and Haji Muhammad
Boota and others Vs. Member (Revenue), Board of Revenue, Punjab and others (PLD
2003 SC 979). At the same time the decree of the Court of Additional District
Judge upholding the rejection of the plaint in the third suit could not enable
the petitioners to wipe out its effect through bringing a fourth suit before
the trial Court. We, therefore, find no substance in this petition and decline
leave to appeal.
(M.S.A.) Leave refused.