Mian MUHAMMAD IQBAL vs Mir MUKHTAR HUSSAIN and others

ORDER

' MUHAMMAD BASHIR KHAN JEHANGIRI, J.---This is a petition for special leave to appeal from the judgment of a learned Single Judge of the Lahore High Court, Lahore, dated 24-5-1995, allowing Civil Revision No,2235 of 1994.

2. The facts which have given rise to this petition are that on 17-5-1990 the petitioner herein sued for permanent injunction so as to restrain the respondent from interfering in his possession over or from alienating the disputed land. It was alleged that the respondents had agreed to sell the disputed land to the petitioner by virtue of an agreement to sell dated 12-12-1988. On 13-10-1990 the petitioner filed another suit for specific performance of agreement to sell dated 12-12-1988. Only one day later, on 14-10-1990 the petitioner sought to withdraw, the earlier suit for permanent injunction on the ground that he had filed a suit for specific performance and that it was not necessary to proceed therewith. The earlier suit for permanent injunction was dismissed as withdrawn on 14-10-1990. The latter suit for specific performance was contested by the respondents by filing written statement. On 11-3-1993, however, it was offered by the petitioner and accepted by the respondents that the suit be decided on the basis of special oath to be taken by Ch. Muhammad Nazir Ahmad, one of the defendants in the suit. It was specifically stated by the petitioner that if Ch. Muhammad Nazir Ahmad deposed by taking oath on the Holy Qur'an that he had neither entered into agreement for sale with the petitioner nor he had received consideration, his suit should be dismissed and that he shall have no other claim against the respondents. On the same day, the desired special oath was taken by Ch. Muhammad Nazir Ahmad denying therein that he had entered into agreement for sale of the disputed land with the petitioner. In consequence, the suit of the petitioner was dismissed on 11-3-1993. On 29-11-1993, however, the third suit, out of which the present petition has arisen, was filed against the respondents for recovery of Rs,5,00,000 on the allegation that the petitioner had incurred a sum of Rs,500,000 on the improvement of the land and, therefore, he was entitled thereto by way of compensation. The suit was resisted by the respondent principally on the ground that it was barred under Order II, rule 2, C.P.C. An application under Order VII, rule 11, C.P.C. Was simultaneously moved by the respondents for the dismissal of the suit on the ground of its non-maintainability. The aforesaid application was, however, dismissed by the learned Trial Court vide its impugned order dated 15-5- 1994 on the ground that the plaint could not be rejected on the basis of the photocopies of the statements of the parties in the previous suit and also that the question as to whether the petitioner was entitled to compensation could only be resolved after recording evidence.

3. The respondents, feeling aggrieved, filed a revision petition in the High Court. The learned counsel appearing on behalf of the respondents had argued before the High Court that "the controversy having been set at rest between the parties by the dismissal of the suit for specific performance on 11-3-1993 on the ' basis of special oath could not be re-opened". It was further maintained "that the petitioner could not claim any other relief with respect to the suit land in view of his categorical statement that he shall not make any other claim against the respondents" and, therefore, the learned Trial Court had fallen into an error to dismiss the application filed by the respondents under Order VII, rule 11, C.P.C. The learned counsel for the petitioner met these arguments by submitting that the subsequent suit for compensation was founded on a different cause of action and, therefore, no question of bar under Order II, rule 2, C.P.C. Arose.

4. The learned Judge in Chamber of the High Court accepted the revision petition holding that "the filing of the third suit by the respondent was an abuse of the process of the Court and, therefore, the Trial Court would have been well advised to reject the plaint so as to bury the misconceived proceedings in their infancy". The learned Judge was further of the view that the petitioners were not precluded from agitating the bar under Order II, rule 2, C.P.C. As the claim of compensation could have been but had not been set up in the earlier suit. It was observed that "all claims flowing from the agreement to sell should have been included in the suit for specific performance; that the relief of specific performance or in the alternative for compensation could not be split up; and that no relief could be left to be pursued in a subsequent suit".

5. Ch. Inayatullah, learned counsel for the petitioner before us, has moved this petition to consider the question whether the bar of Order II, rule 2, C.P.C. Came in the way of the second suit filed by the petitioner. The learned counsel for the petitioner has challenged the findings of the learned Judge in Chamber by reference to various authorities of this Court, namely, (i) Abdur Rahim v.

Karachi Development Authority 1988 CLC 1207, (ii) Ghulam Ali v. Asmatullah and another 1990 SCM R 1630 and (iii) Fatima Moeen v. Additional District . Judge, Sheikhupura 1992 SCM R 1199.

6. Mr. Muhammad Iqbal Sargana, learned counsel for the contesting respondents, supported the impugned order by reference to various authorities. We need not reproduce the authorities cited for and against the proposition on account of distinct factual aspects of the case, as the fact remains that each case is to be decided in the light of its own facts.

7. Rule 2 (2) of Order II, C.P.C. Postulates that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action, but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court. Sub-rule (2) provides that where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim (underlining is ours for emphasis), he shall not afterwards sue, in respect of the portion so omitted or relinquished, Sub-rule (3) lays down that a person entitled to more than one relief in respect of the same cause of action, may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for any of such reliefs, he shall not afterwards sue for any relief so omitted. The rationale behind Rule 2 (1) (2) (3) of Order II, C.P.C. Clearly indicates that the Legislature introduced the provisions to control splitting up of claim and to restrict the multiplicity of suits. In the present case, these provisions are fully attracted, in that, the petitioner had clearly omitted to sue for recovery of compensation in the earlier suit for specific performance. He could not sue for this relief now which he had omitted in the earlier relief.

8. The learned counsel for the petitioner contends that the expression "cause of action" in Order II, rule 2, C.P.C. Means the cause of action for which a suit is brought and that in the instant case the cause of action for specific performance in the earlier suit was distinct from the cause of action qua the compensation for improvement. We do not agree with this submission of the learned counsel for the petitioner. The cause of action in both the suits, namely, one for the specific performance of agreement to sell and the other for compensation of improvement could be joined in one suit and having omitted the latter cause of action, the bar of Order II, rule 2, C.P.C. Was fully attracted to the case.

9. The learned counsel for the petitioner was unable to convince us that the revision petition was not dismissed on judicious consideration.

10. As a result of the above discussion, we find that the order passed by the High Court is unexceptionable and it is not a fit case for our interference. We would, therefore, dismiss the petition.