LIAQAT ALI Versus PUNJAB PROVINCE

ORDER

This civil revision has arisen out of a suit brought by the petitioner, Liaqat Ali, against the respondents, Province of the Punjab and others. The suit was resisted by the respondent No.5, who was defendant No.5 therein, whereupon following issues were framed:‑

(1) Whether the suit is barred by time? OPD.

(2) Whether the suit is hit by section 11, C.P.C.? OPD.

(3) Whether the plaintiff is estopped by his words and conduct to bring this suit? OPD.

Whether the orders of Assistant Commissioner, D.C.0, Kalabagh Division and S.C. Mianwali and mutation No.31 are illegal and void for the reasons given in the plaint? OPP.

(5) Whether the defendant No.5 is entitled to compensatory costs? If so, to what amount? OPD.

(6) Relief .

2. The Civil Judge, who heard the suit, decided issues Nos. 1 to 4 against the petitioner. Issue No.5 was not pressed. Resultantly, the suit was dismissed. Appeal preferred by the petitioner also met with the same fate. Hence this civil revision.

3. The learned Additional District Judge, who dismissed the appeal, upheld the findings of the learned trial Court on issues Nos.l and 2, for the following reasons:‑

"The impugned orders were passed by D.C.O. on 27‑3‑1978 and by S.C. Mianwali on 15‑11‑1979 whereas the suit was filed on 9‑9‑1982 which is hit by Article 14 of the Limitation Act. The suit being badly time‑barred issue has been rightly decided in favour of the defendant.

The plaintiff previously instituted a suit on the same cause of action in the year 1980 against the orders of D. C .0. and S. C .O. , Mianwali dated 27‑3‑1978 and 15‑11‑1979 respectively. The plaintiff withdrew the suit on 13‑5‑1980 but he did not withdraw the suit with permission to file a fresh suit on the same cause of action. Although the plaintiff urged that he threw the suit consequent to a compromise effected between him and defendant No.5 but no written‑compromise or any statement in this behalf is on the record. Even the order of the learned Judge does not mention the fact of compromise as asserted by the plaintiff. The plaintiff has not been able to prove that his second suit after the withdrawal of first suit was not hit by section 11 of the C.P.C., therefore, the findings_ recorded by the learned trial Court on issue No. 2 are upheld."

4. Assailing these findings of the learned appellate Court, it was submitted by learned counsel for the petitioner that cause of action for subsequent suit of the petitioner was different from cause of action for his earlier suit but he could not convince me in this regard. Copy of plaint of the earlier suit was neither placed on the record nor shown to me at the time of motion hearing. It was urged by learned counsel for the petitioner that in the subsequent suit the petitioner did not assail the orders challenged in his earlier suit but simply contended that the stipulations contained in the said orders had not been observed. This, however, is not borne out by the contents of the plaint of the subsequent suit which reveals that by filing that suit the petitioner made a frontal attack on the above orders. There is no issue with regard to the alleged non‑observance of the so‑called stipulation. It was also not the plea of the learned counsel that such an issue was claimed before the learned trial Court by making application before it. In this connection, he drew my attention to clause (x) of paragraph 5 of the above plaint in which it was inter alia stated that amount of the award had not been received by the petitioner. This is a vague statement. If said amount has been deposited but not withdrawn by the petitioner, the person making the deposit is not to blame for it. It has not been urged that the said deposit was not made. It was not denied by learned counsel for the petitioner that the petitioner had withdrawn his first suit without permission to file another one. I am, therefore, unable to disturb concurrent finding of the learned lower Courts on the first two issues.

5. Learned counsel did not say anything against their findings on the other issues.

6. Resultantly, the civil revision fails. It is dismissed in limine.

H.B.T./L‑24/L Revision dismissed