This Writ Petition has arisen from an order dated 17.6.2005 whereby petitioner's revision against the order dated 17.1.2005 was dismissed by the learned Addl. District Judge Lahore.
2. Precisely, relevant facts giving rise to the filing of the present petition are that Mst. Soofia Munir, hereinafter to be referred as Respondent No, 1, filed a suit for declaration with consequential relief, inter alia, against the petitioner, namely, Minhaj-ul-Islam Sabri and other defendants with the averments that plaintiff-respondent No, 1 is the owner in possession of Plot No, 2 measuring 5 Marlas purported to have been purchased by her from Respondent No, 3, namely, Ghulam Qadir, being the original allottee. She further asserted that transfer of said plot was approved by respondent society, and the registered documents stood transferred in her name. And that at one point of time, it came to the knowledge of the plaintiff that the previous management of Respondent No, 4 viz. Canal View Cooperative Housing Society had collusively manoeuvred to construct an other file of the plot in question showing its allotment to Respondent No, 2 namely Syed Shehzad Ali on 30.6.1990, who further disposed it of to petitioner-defendant on 30.6.1991 with mala fide intention fraudulently with a view to deprive the plaintiff of her legal rights. On such disclosure, plaintiff is stated to have served notice under Section 70 of the Cooperative Societies Act upon Respondent No, 4 for taking appropriate action in the matter, and on account of inaction on its part, plaintiff file the suit.
3. Petitioner did not turn up despite his alleged service, and was thus proceeded ex parte in the wake of absence from the Court, and the suit was accordingly decreed in terms of judgment and decree dated 12.10.1995. Subsequently, it appears that execution proceedings commenced.
Whereafter, the petitioner filed an application under Order 9, Rule 13 C.P.C. for setting aside of ex- parte judgment and decree dated 12.10.1995. It appears that said application is still pending.
Thereafter, Respondent No, 1 instituted an other suit against the petitioner and others praying that allotment in favour of the petitioner in respect of the property in dispute be declared as null and void and another relief was also added that transfer deed dated 30.6.1991 executed and registered in favour of the petitioner be declared as void ab initio and inoperative against the rights of Respondent No, 1, and the Sub-Registrar of documents City District Government, Lahore be directed to deliver up the registered document. Permanent injunction for protecting the alleged possession was also prayed for on her behalf. It was contended in the plaint that after obtaining the judgment and decree dated 12.10.1995, Respondent No, 1 approached Respondent No, 4 Society seeking its implementation, who expressed its inability to do so unless and until the transfer deed executed and registered by Respondent No, 4 in favour of the petitioner was also cancelled, hence, the suit was filed. In the above circumstances, the petitioner on entering appearance filed an application under Order 7, Rule 11 C.P.C. seeking rejection of the plaint on the ground that instant suit had been filed on the same cause of action, and the relief of declaration qua registered transfer deed, was available to Respondent No, 1 at the time of the institution of the earlier suit, hence, the subsequent suit was barred in view of the provision of Order 2, Rule 2 CPC. Said application was rejected by the trial Court vide order dated 17.1.2005. Being aggrieved, petitioner filed a revision petition which also failed to find favour and was dismissed by the learned Addl. District Judge vide Order impugned dated 17.6.2005.
4. Counsels for the parties have been heard and the record appended herewith perused. Learned counsel contends on behalf of the petitioner that earlier suit had been filed by Respondent No, 1 inter alia against the petitioner contending therein that allotment in his favour was void and inoperative against the rights of the said respondent. Allegations of fraud were made. Said suit was decreed ex-parte. It is further contended that present suit not only pertained to the same property but an indentical legal right therein has been claimed and the rights of the petitioner in the said property has been challenged. Hence, two suits are based on the same cause of action. Further contends that registered transfer deed dated 30.6.1991 in favour of the petitioner was admittedly in existence prior to filing of the first suit, hence the same could and should have been challenged by plaintiff in the earlier suit. And failure to do so constitutes relinquishment of claim and thus no relief could be asked for by her under the law. Adds that subsequent suit is clearly and squarely hit by the provision of Order 2, Rule 2 C.P.C, hence the plaint was liable to be rejected. It was further contended that where a suit is barred under Order 2, Rule 2 CPC, plaint must necessarily be rejected and the defendant therein should not be subjected to trial.
5. In support of his contentions, learned counsel relies on PLJ 1996 Lahore 1098 (Noor Begum vs. Muhammad Boota and 3 others), PLJ 2002 Lahore 508 (Muhammad Nawaz vs. Addl. District Judge etc), (PLD 2001 SC 325) (Hashim Khan vs. National Bank of Pakistan), 1995 CLC 88 (National Bank of Pakistan vs. Hashim Khan), 1995 CLC 183 Muhammad Yousaf Memon vs. Karachi Stock Exchange (Guarantee) Ltd.
6. Whereas, the learned counsel for the respondents controverts the assertions raised by the learned counsel on behalf of the petitioner by saying that Respondent No, 1 had no knowledge at the time of the filing of the earlier suit that Respondent No, 4 had executed a transfer deed in favour of the petitioner which had been registered too. Said document came to her knowledge after ex- parte decree had been passed on 12.10.1995 vide letter dated 27.4.1998, and therefore, in absence of knowledge of the transfer deed, Respondent No, 1 could not be said to have relinquished her claim or precluded to ask for relief in respect of the said document, hence, the subsequent suit was not barred under Order 2 Rule 2 CPC, therefore, the plaint could not be rejected.
7. It is a settled law that if suit filed in barred by law, the plaint could and ought to be rejected in terms of Order 7, Rule 11 CPC. If a suit is barred in terms of Order 2, Rule 2 CPC, the provision of Order 7, Rule 11 CPC are attracted that plaint is liable to be rejected as has been held in various judgments of the Superior Courts referred to herein above. However, in the instant case, it needs to be examined whether provision of Order 2, Rule 2 CPC would be attracted where the plaintiff in a suit denies the knowledge of the facts, which entitled her to a right to claim a relief as is in the present case. Order 2, Rule 2 CPC reads as under: "2. Suit to include the whole claim. (1) 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.
Relinquishment of part of claim (2) Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, shall not afterwards sue in respect of the portion so omitted or relinquished."
8. Examining the aforesaid provision of law in the context of the lis at hand, the word intentionally employed in sub-rule (2) appears to have great significance. The question would arise whether a person can intentionally relinquish a claim without having knowledge thereof. Confronted with a similar legal issue pertaining to the applicability or Order 2, Rule 2 CPC, this Court in the judgment reported as AIR 1917 Lahore 19 (Mst. Aishan vs. Muhammad Din) held as follows: Moreover, it has been found as a fact by the District Judge that Muhammad Din had no knowledge of his right to succeed on a life-estate to the property left by his wife until the decision in the former suit made it clear to him that his wife was no less a khanadamad of her father than her sister, Muhammad Aishan, and that he was therefore, the person entitled by law and custom to hold the property for life. In these circumstances he cannot be said to have "intentionally relinquished" any part of his claim, within the meaning of 0. 2, R. 2, Civil Procedure Code."
9. In another judgment reported as 1918 Nagpur 158 (Binya Bia and another us. Ganpat and another) his lordship observed that in the context of Order 2, Rule 2 CPC that knowledge of the plaintiff of his/her right may be actual or constructive.
10. In view of above, this Court has no hesitation in holding that claim or right can only be relinquished, if plaintiff is aware and cognizance of such right or claim and in absence of such knowledge Order 2, Rule 2 CPC would neither be applied nor subsequent suit could be barred as intention presupposes knowledge. Such knowledge could either be actual or constructive which in the instant case is predominantly significant as the document in question has admittedly been registered under the Registration Act with all its implications including presumption as to notice.
Premium should not be given to sheer ignorance and indolence. Every effort must be made to avoid perpetuating of multiplicity of proceedings. In the facts and circumstances of the case, the objection raised by the petitioner has attained the status of mixed question of law and facts which can only be determined, as held by the Courts below and in my view rightly so, after recording of evidence, and thus, I hold that two Courts below rightly declined to reject the plaint under Order 7, Rule 11 CPC as being barred in terms of Order 2, Rule 2 CPC leaving the issue to be decided on the touchstone of evidence.
11.The upshot of the foregoing discussion is that no case for interference was the orders impugned is made out. Consequently, this petition being destitute of any merit is dismissed with no order as to costs: