MUHAMMAD NAWAZ ABBASI, J.--- This appeal by leave of the Court, has been directed against the judgment, dated 31-5-2000 passed by High Court of Sindh, Larkana Bench, whereby the civil revision arising out of a suit for cancellation of the sale-deed, was allowed and judgment and decree passed by the Appellate Court was set aside while that of trial Court was restored.
2. Leave was granted in this appeal, vide order, dated 25-10-2000, as under:-- "This petition for leave to appeal is directed against the judgment, dated 31-5-2000 of High Court of Sindh in which arguments were heard on 13-12-1999 and 20-12-1999. By the impugned judgment a learned Judge in Chambers, in the exercise of civil revisional jurisdiction under section 115, C.P.C., set aside the Appellate Court's judgment holding that the second suit in relation to the same property was not maintainable and restored the judgment passed by Senior Civil Judge expressing the view that the second suit filed after dismissal of the earlier suit under Order IX, rule 9, C.P.C. Was maintainable.
(2) One Khuda Bux Samtio owned 12-29 Acres of land and died in 1954 leaving behind his widow Mst. Shahul, three sons, namely, Gul Muhammad, Ali Muhammad, and Atta Muhammad, and a daughter Mst. Ghulam Fatima as his legal heirs. After his death, his daughter Ghulam Fatima and his widow Mst. Shahul, statedly illiterate and Pardanasheen ladies, lived with Gul Muhammad, the full brother of Mst. Ghulam Fatima. However, two brothers, i,e, Atta Muhammad and Ali Muhammad lived separately. Mst. Shahul and Mst. Ghulam Fatima enjoyed and shared the produce of the suit- land with Gul Muhammad until 1964 when he died. After Mst. Shahul's death in 1981, Mst. Ghulam Fatima continued to enjoy the possession and proceeds of the land. In 1983 petitioner Muhammad Chuttal made an application to the Mukhtiarkar Larkana claiming ownership rights on the basis of a registered sale-deed purportedly executed by Mst. Shahul and Mst. Ghulam Fatima in 1962. He complained that Hans of land were not sharing the produce with him, which fact was enquired into by the Mukhtiarkar. He summoned the Haris who denied Muhammad Chuttal's claim and informed Mst. Ghulam Fatima about it. Consequently, Mst. Ghulam Fatima filed Suit No,113 of 1982 in the Civil Court Larkana against Muhammad Chuttal seeking cancellation of the sale-deed and permanent injunction on the averments that Muhammad Chuttal had influenced her and her mother and taking advantage of their illiteracy made them to sign a document what he called the power of attorney, which later turned out to be a sale-deed. She prayed for following reliefs:--
(1) That the impugned sale-deed dated 25-7-1962 be cancelled as being fraudulent and void document;
(2) that the defendant be restrained from interfering with her possession and enjoyment of the suit-land.
(3) During the pendency of the proceedings Mst. Ghulam Fatima died and Atta Muhammad, her consanguine brother, was substituted in her place. The suit was. However, dismissed for default on 22-10-1984. An application for restoration of terms of Order IX, Rule 9, C.P.C. Was dismissed, as also an appeal against the order of dismissal. Later, when Muhammad Chuttal challenged his ownership, said Atta Muhammad tiled Suit No,57 of 1985 in Civil Court, Larkana against the petitioner for cancellation of the sale-deed and perpetual injunction claiming that after the death of Mst. Ghulam Fatima, he had been in possession and enjoyment of suit-land and that the alleged sale-deed by which Mst. Shahul and Mst. Ghulam Fatima allegedly sold the land was false, forged and fraudulent. In the relief clause he made same prayers as .In the earlier suit brought by Mst.
Ghulam Fatima.
(4) In his written statement the petitioner asserted that the sale-deed was executed by Mst. Shahul and Mst. Ghulam Fatima with full knowledge and understanding of the nature of transaction. He raised a question of law that the subsequent suit was not maintainable as the previous suit had been dismissed in default under Order IX, rule, 9, as also the appeal filed against the dismissal order which attained finality. After settlement of issues and recording evidence, trial Court came to the conclusion that defendant Muhammad Chuttal had failed to prove his title and decreed the suit. In Civil Appeal No,82 of 1991 before an Additional District Judge, vide judgment, dated 25-2- 1998 finding of fact by the trial Court were maintained but the suit was dismissed on the legal score as being barred by Order IX, rule, 9, C.P.C.
(5) Again as the luck would have been, during the pendency of litigation, Atta Muhammad also died and was substituted by his legal heirs who impugned the judgment and decree of the Appellate Court in civil revision before the High Court, which was accepted leading to this petition for leave to appeal.
(6) In arriving at the conclusion, learned High Court relied upon the definition of "cause of action" as given in Black's Law Dictionary, VIth Edition (1990) page 221, the judgment of this Court in Jumma Khan v. Mahmud Khan 1973 SCM R 289 and a Lahore High Court decision in Fazal Begum v.
Municipal Corporation, Lahore 1983 CLC 1643.
(7) It may be pertinent to observe that operative part of Rule 9 of Order IX, C.P.C. Contemplates that where a suit is wholly or B partly dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action.
(8) Laying much emphasis on the expression "same cause of action", Mr. M.L. Shahani, Advocate Supreme Court, learned counsel for the petitioner inter alia, contended that the judgment of High Court rendered after more than five months of the conclusion of the arguments cannot be sustained in law and the case should have been heard afresh; that the subsequent suit in respect of same cause of action after the dismissal of the earlier suit in default relating to same, corpus was patently not maintainable and that the High Court was not legally justified in holding that the subsequent suit in respect of same transaction was a new cause of action. Lastly learned counsel strenuously urged that the relief granted by the High Court was violative of the law of limitation inasmuch as suit for cancellation of a registered instrument could be filed within a period of three years in terms of Article 91 of the Schedule to the Limitation Act and the judgment offended section 39 of the Specific Relief Act.
(9) As there is a conflict of opinion on an important question of law between the Courts below, in order to examine the contention raised and to ensure whether the ratio in Juma Khan's case (supra) was correctly applied by the High Court, we are inclined to grant leave to appeal. Order accordingly."
3. Learned counsel for the appellant has contended that after dismissal of the suit under Order IX, rule 8, C.P.C., a fresh suit on the basis of same cause of action was not competent and mere fact that first suit was not decided on merits or the form of relief sought therein was different, would not change the legal position and the second suit on the same subject on the basis of same cause of action even with an additional relief which was not claimed in the first suit, would not be maintainable due to the bar contained in Order II, rule 2, C.P.C. The learned counsel, for the respondents, on the other hand, has submitted that notwithstanding the fact that earlier suit was not decided on merits, the subsequent suit on the same cause of action was not only barred under Order II, rule 2, C.P.C. But was also not competent due to the bar of the res judicata contained in section 11, C.P.C.
4. The examination of record with the assistance of learned counsel for the parties, would reveal that cause of action in both the suits between the parties was same and certainly previous suit was dismissed for non-prosecution and was not decided on merits. The dispute in the two suits related to the title of the appellant in the property and in the previous suit, on death of Mst. Ghulam Fatima, Atta Muhammad, her consanguine brother, the predecessor-in-interest of the present respondents, was substituted as plaintiff in the capacity of her legal representative. The true test for application Order II, rule 2, C.P.C. In such cases is as to whether the claim in the subsequent suit in fact was founded upon the same cause of action or there was distinct cause of action to that of the former suit. There is no cavil to the proposition that on dismissal of suit in default, the plaintiff or his successor-in-interest may not be able to bring fresh suit on the same subject as the law does not permit repeated litigation on the same cause of action but the question relating to the bar of Order II, rule 2, C.P.C. Must be examined in substance as the subsequent suit, may not be barred for mere reason that cause of action in two suits was founded to be the same rather it would depend upon the decision of question whether in a case in which the previous suit was decided on merit, the fresh suit would be barred by law or in all circumstances, the subsequent suit cannot proceed.
The law is clear on the proposition that if the facts on the basis of which right is claimed by the plaintiff, are the same and infringement of such right by the defendant in the two suits has arisen out of the same transaction, the subsequent suit on the basis of same cause of action may not be competent and barred by the doctrine of res judicata, therefore, the assertion that so long title of a person is denied and his ownership is repudiated, on every refusal of title a fresh cause of action would accrue in his favor may not be correct in the particular facts and circumstances of a case. In the present case, the suit filed by Mst. Ghulam Fatima, predecessor-in-interest of present respondents, was dismissed in default under Order IX, rule 8, C.P.C. And application for restoration of the suit was also dismissed and in view thereof, apparently the fresh suit on the same cause of action may not be maintainable but if the cause of action was distinct or it was recurring, the dismissal of earlier suit would not affect the subsequent suit. There are different provisions in the C.P.C. Under which a suit can be dismissed in default and in certain situations, the bar of fresh suit may not operate whereas in some cases, fresh suit is not competent and in the instant suit, it was pleaded by the respondents that the cause of action was recurring which was a mixed question of law and facts, therefore, it was obligatory for the High Court to attend the same in the light of The evidence of the parties. This is also noticeable that suit was dismissed for non-prosecution on the date on which it was fixed for evidence and the plaintiff despite having been given sufficient opportunity, failed to bring the evidence but the learned trial Judge instead of following the procedure of Order XV II, rule 3, C.P.C. Dismissed the suit in default in terms of rule 2 of the (ibid)
Order and High Court also did not take notice of this aspect of the matter. We find that the above propositions of law involved in the present case, have not been properly examined in the light of the relevant provisions in the C.P.C. And consequently, we deem it proper to send this matter back to the High Court for decision of the civil revision afresh.
5. In the light of foregoing reasons, we without dilating on the merits in either way, set aside the judgment of the High Court and send the case back to the High Court for decision of the civil revision afresh in accordance with law. This appeal is accordingly, allowed with no orders as to costs.