MAULVI ANWARUL HAQ, J. - In the first instance on 8.10,1978 Mst. Zainab Bibi, predecessor-in-interest of the respondents filed a suit for declaration and possession against the petitioner. It was averred that 15 days before the institution of the suit the petitioner had trespassed upon the land owned by the said lady. The suit was contested. It was dismissed by the learned Trial Court on 26.7.1981.
However, a first appeal filed by Mst. Zainab Bibi was allowed by a learned Additional District Judge, Rawalpindi, on 14.6.1995, who decreed the suit while R.S.A. No. 45/1985, filed by the petitioner was dismissed by the is Court on 27.6.2000. Present suit was filed on 5.9.2000 for decree for mesne profit/compensation of the use and occupation of the property, A written statement was filed. The learned Trial Court trained preliminary issue as to the maintainability of the suit as to whether the plaint is liable to be rejected and proceeded to reject the plaint holding the suit to be barred under Order II, Rule 2, C.P.C. Vide order dated 1.10.2002. A first appeal filed by respondents has been allowed by a learned Additional District Judge, Rawalpindi, on 4.11.2003, who has set aside the said findings and remanded back the case for decision on merits.
2. Learned counsel for the petitioner contends with reference to the case of Mian Muhammad Iqbal v. Mir Mukhtar Hussain and others (1996 SCMR 1047) that separate suit for mesne profit was barred under Order II, Rule 2, C.P.C. Learned counsel for the respondents. On the other hand, contends that Order II, Rule 2, C.P.C. Has no application in the admitted facts of the case. He relies on the case of Muhammad Azim v. Pakistan Employee Cooperative Housing Society Limited, Karachi (PLD 1985 Karachi 481).
3. I have gone through the copies of the record. I have already noted above the contents of the plaint in the first suit filed. On 8.10.1978 /.e. That dispossession had taken place 15 days before the said institution of the suit.. The claim for mesne profit which according to Section 2(12), C.P.C!
Means those profit the person in wrongful possession of property actually received or might with ordinary diligence have received from there altogether with interest, can hardly be termed to have accrued at the time the suit was instituted. In any case the claim has been made with effect from July, 1997 which is point of time about 19 years after the date of institution of the first suit. So far as the said contention of the learned counsel for the petitioner is concerned, the case of Mian Muhammad Iqbal has been decided with reference to the. Suit for specific performance of an agreement and subsequent suit filed for compensation was held to be barred under Order II, Rule 2, C.P.C., it is but obvious that the Hon'ble Supreme Court decided the matter with reference to Section 19 of the Specific Relief Act, 1877 which calls upon a plaintiff to seek relief of compensation while suing for specific performance. The objection was wholly frivolous and has been correctly rejected by the learned Additional District Judge. The civil revision is dismissed with costs. Counsel fee is fixed at Rs. 5,000/-. A copy of this judgment be immediately remitted to the learned Trial Court who shall take all steps to decide the suit positively on or before 31.3.2009.