MUHAMMAD NAWAZ vs ADDITIONAL DISTRICT JUDGE and others

' The facts giving rise to this writ petition are that respondent No,3 filed a suit for declaration and permanent injunction to the effect that he was the owner in possession of the suit property and that the petitioner be restrained from demolishing or in any other manner from interfering in his use and possession of this suit property. The said suit was filed on 4-4-1996. Alongwith the suit, an application for the grant of temporary injunction was filed. However, vide order dated 14-4-2000, the said application for the grant of temporary injunction was dismissed by the learned trial Court.

Thereafter, respondent No,3 filed a fresh suit on 6-5-2000 while the earlier suit was still pending.

2. As the second suit was in respect of the same property and the same cause of action, the petitioner filed an application under Order VII, rule 11, C.P.C. For rejection of the subsequent plaint.

The said application was resisted. Vide order, dated 22-12-2000, the learned trial Court dismissed the application of the petitioner on the ground that the earlier suit was one for declaration while the subsequent suit was for the grant of perpetual injunction and thus, in view of the learned trial Court, the subsequent suit could proceed.

3. The petitioner filed a civil revision against the said order. However, vide order, dated 28-4-2001, the civil revision was dismissed on the ground that as the earlier suit was withdrawn on 13-6-2000 whereas the subsequent suit was filed on 6-5-2000, the provisions of Order XXIII,. Rule 1(3), C.P.C.

Would not apply.

4. Through this writ petition, both the aforementioned orders passed by the learned trial Court as well as in revision by the learned Appellate Court have been challenged to have been passed in the absence of lawful authority and being in violation of law.

5. Arguments have been heard and record perused.

6. A comparison of the plaint filed by respondent No,1 on 4-4-1996 with the plaint filed on 6-5-2000 would show that the same cause of action was agitated in both the suits in respect of the property in question. The basic cause of grievance common in both the suits is the alleged claim of respondent No,1 to be the owner of the property in question which is situate in Khata No,84/84, Rectangle No,184/3 and Killa No,23. Whereas in the earlier suit the area of the subject land is given as 1 Kanal, 4-1/2 Marlas, in the subsequent suit, it has been mentioned as 1 Kanal, 7 Marlas. The only other point of distinction is that in the earlier suit, respondent No,1 was the sole plaintiff whereas in the subsequent suit, he had also included Mst. Irshad Bibi as a co-plaintiff. The filing of a subsequent suit on the same cause of action and for the same relief is barred under the provision of Order II, rule 2, C.P.C. Wherein it is enjoined that every suit shall include the whole of the claim which a plaintiff is entitled to make in respect of the cause of action. The omission to sue for one or several reliefs available to the plaintiff shall preclude the plaintiff to subsequently sue for any relief so omitted. The learned counsel for the respondents has not been able to demonstrate as to under what provision of law, a plaintiff can file a suit on the same cause of action while a previous suit on the same cause of action is pending. The learned trial Court as well as the learned revisional Court did not approach the objection raised by the petitioner in its correct legal perspective. While the learned trial Court completely erred in holding that the subsequent suit for perpetual injunction was in any way different from the suit for declaration filed earlier, the learned revisional Court unnecessary got itself engaged in discussing the provision and effect of Order XXIII Rule 1(3), C.P.C.

In view of the embargo placed by Order II Rule 2, C.P.C., a plaintiff must sue for all the available reliefs in one suit and splitting up a cause of action is not permissible.

7. It is also observed that the subsequent suit was filed by the respondents in a mala fide manner.

The first suit was filed as for back as 4-4-1996 when an application for the grant of temporary injunction was also filed. The said application remained pending uptil 14-4-2000 when it was dismissed by the learned trial Court. In the second suit .Which was filed on 6-5-2000, the respondent was able to obtain a temporary injunction and it was in this view of the matter that the petitioner had moved the application under Order VII, rule 11, C.P.C. On 30-5-2000 for rejection of the plaint in the second suit. In order to render this application as ineffective, the respondent withdrew the first suit on 13-6-200.0.

8. For all that has been stated above, this writ petition succeeds and the order, dated 22-12-2000 of the learned trial Court and the order dated 28-4-2001 of the Court in revision are set aside. The application of the petitioner filed under Order VII. Rule 11, C.P.C. Is allowed and the plaint dated 6-5- 2000 in me second suit of the respondent is rejected. No order as to costs.