1. ' MRS. QAISER IQBAL, J.---The defendant has filed application under Order VII, Rule 11, C.P.C. For rejection of the plaint on the premises that the suit is barred under sections 11, 12 and Order II, Rule
(2) C.P.C.
2. ' Precisely the facts contained in the plaint are that the plaintiff has filed a Suit No, 52/1992 for recovery of Rs,10,71,000 which was decreed ex parte for a sum of Rs,7,65,000 the decree could to be executed, within the period provided under the law ceased to exist therefore on the basis of the judgment passed in favour of the plaintiff, the plaintiff is entitled to recover Rs,15,30,000 in accordance with the judgment and Rs,30,00,000 on account of damages sustained by him.
3. ' I have heard Mr. Badar Alam and Mr. Shaukat Hayat learned counsel for the parties, perused the record of the case.
4. ' Mr. Badar Alam has contended that the earlier suit filed by the plaintiff in the year 1992 against the defendant for recovery was decreed in favour of the plaintiff, the -plaintiff did not file execution application persistently called upon the defendant to clear his liability in terms of decree, the suit filed is not maintainable under the law suffers from res judicata, as well as for not including the whole claim in the earlier suit. Adverting to section 11 of the Code of Civil Procedure, it is urged that no court shall try any suit strictly and substantially in issue in a former suit between the same parties or between the parties under whom they were litigating under the same title in a competent court to try such subsequent suit in which such issue has been heard and finally decided by such court.
5. ' Admittedly in between the same parties the issue raised was decided in Suit No,52/1992 decree could not be executed for one reason or the other and was the subject matter of the present suit filed by the plaintiff for re-adjudication of the issue earlier decided by the competent court as well as for compensation which appears to be barred under section 12 of the Code of Civil Procedure challenging the validity of the judgment, decree or order unless based upon fraud, misrepresentation or want of jurisdiction which too could be adjudicated under special jurisdiction as provided under the scheme of section 12 subsection (2) of Code of Civil Procedure. It is next urged by the learned counsel for defendant that claims includes, whole claims the plaintiffs claim is ousted from the scheme of order II, Rule 2, C.P.C.
6. ' Conversely the learned counsel for plaintiff has contended that all issues raised could only be taken into consideration after the evidence has been recorded, the matter was thoroughly examined with regard to the controversy in two proceedings and it was not possible for the court to reach the conclusion that the present suit involving the same controversy as well as claim of compensation was decided in earlier case. In support thereof reliance has been placed on the following case law:-
(1) Ahmed Din and others v. Muhammad Din (1998 MLD 829).
(2) Jewan and 7 others v. Federation of Pakistan through Secretary Revenue, Islamabad and 2 others (1994 SCMR 826).
(3) Haji Mitha Khan v. Muhammad Younus (1991 SCMR 2030).
7. ' Learned counsel for plaintiff has contended that it is a recognized principle that in suits filed under summary chapter (Order XXXVII, Rule 5, C.P.C.) empowers the court to attach the property of the defendant arising from the facts contained therein. It is next urged that the power to grant relief necessarily implies power to take all such steps as may be needed to ensure the grant of relief to the plaintiff otherwise shall tantamount by paper decree. It is only when the decree is satisfied that a party gets full relief and the court has power to pass all such orders as may be required for the satisfaction of the decree unless any such order by expressly or by necessary implication prohibited, as held in case of Mohiuddin Molla v. (1) The Province of East Pakistan, (2) Abdul Sobhan and (3) Ketab Ali (PLD 1962 SC 119). The facts of the present suit are different then first suit is not barred as laid down in Qalandar Din and 4 others v. Rasul Khan (1991 SCMR 525). It is next urged that the plaintiff has filed second suit for claiming compensation and damages based upon the fresh cause of action therefore suit is not barred under Order II, Rule 2, C.P.C. As held in case of Fayyaz Hussain v. Tahir Naseem (PLD 1992 Karachi 423). It is well settled law that for rejection of plaint under order VII, rule 11, C.P.C. Unless until such time the documents relating to earlier proceedings were brought on record in accordance with law and the matter was thoroughly examined with regard to controversy in the two proceedings, it was not possible for the court to reach at the conclusion that the suit involved the same controversy which was decided in the earlier proceedings. In this context reliance is placed on the case of Jewan and 7 others v.
8. Federation of Pakistan through Secretary, Revenue, Islamabad and 2 others (1994 SCMR 826), it was observed as under:-- "We fail to understand as to how the above statement made by Jewan was relevant for the purpose of rejecting the plaint on the ground that it failed to disclose any cause of action or that suit instituted by him was mala fide and based on concocted facts. On the contrary the statement referred to above show and it is also admitted by the learned counsel for the respondents before us that the appellants are tenants on the land in question and therefore they could not be dispossessed from there except in accordance with due process of law. The above statement of Jewan recorded by the trial court on 22-4-1990 neither shows that the plaint had failed to disclose any cause of action nor it is sufficient to reach to the conclusion that the suit was barred on the principle of res judicata applied by the court. With regard to the observation of the courts below that there was earlier proceedings between the parties and therefore, the present suit instituted by the appellants was barred on the principle of the res judicata may only observe that the record of the earlier proceedings is to be brought before the court on record in accordance with law- and only then it is to be considered whether the controversy decided in the earlier proceedings is the same which is agitated by the appellants in the present suit. Until such time the documents relating to earlier proceedings were brought on record in accordance with law and the matter was thoroughly examined with regard to controversy in the two proceedings, it was not possible for the courts below to reach the conclusion that the present suit involves the same controversy which was decided in the earlier proceedings. We accordingly, allow this appeal, set aside the orders of the lower courts rejecting the plaint under Order VII, Rule 11, C.P.C."
9. ' The above question also arose, decided in case Haji Mitha Khan v. Muhammad Younus and 2 others (1991 SCMR 2030), the element and ingredients constituting cause of action. Test of cause of action was that if what plaintiff had stated was taken to be correct, was he entitled to relief or not in case of defect in the frame of suit, opportunity had to be allowed to the party to correct that defect and to remove the deficiency, if any, in court fee. It is further held that vagueness of the plaint, of the relief claimed, the deficiency in the court-fee, the defective form of suit, the repugnancy of the compromise to the Islamic principles and the question of limitation were all questions which would arise only when there was a cause of action. If there was no cause of action, all these subsequent questions would not arise. The test of cause of action was that if what the plaintiff had stated was taken to be correct would entitled him to a relief or not in law. In the case in hand the plaintiff clearly claimed that he had entered into a valid compromise, the defendants were party to it or bound by it, and that the rights of the plaintiff under the compromise were being violated. This would afford cause of action to the plaintiff and it would only be on merits that he could be defeated. It was held that the claim was not within time, the compromise was not in accordance with the law applicable to the parties, then it was a decision on merits A which must take place in proper form. If any defect was found in the frame of the suit or deficiency in court fee then an opportunity had to be allowed to the party to correct that defect and to remove the deficiency.
10. ' Adverting to the bar under order rule 2, C.P.C. Nature of exception to the right of a party has to be strictly construed, and has not to be lightly inferred as held in case of Muhammad Azim v. Pakistan Employees Cooperative Housing Society Ltd. Karachi and 4 others (PLD 1985 Karachi 481), in a suit for possession, it was held that claim for future mesne profit not included in suit for possession a separate subsequent suit for mesne profit was not barred under order II, rule 2, C.P.C. Which view finds support from the case of Abdul Hakim and 2 other v. Saadullah Khan and 2 others (PLD 1970 SC 63).
11. ' It is well settled that the jurisdiction of the court is based on the relief claimed and the court has power to pass all such orders as may be required to the satisfaction of the decree unless any such order by express or by necessary implication is prohibited.
12. ' In view of the above facts and circumstances, the application under order VII, rule 11 C.P.C. Bearing C.M.A. No,222/2004 is not maintainable in law and is accordingly dismissed.