1. ' SAJJAD ALI SHAH, J.---Through this application defendant No,5 seeks rejection of the plaint on the ground that the claim in the instant suit is Pot only barred under Order II, rule 2, C.P.C./limitation but also hit by the principles of res judicata.
2. ' The record reflects that even prior to filing of listed application this Court vide orders dated 12-12- 2005 and 19-12-2006 had made certain observations questioning the maintainability of instant suit on similar ground. On 8-4-2009 and 28-4-2009 counsel for the plaintiff sought time to address the Court regarding maintainability of the instant suit and at his request matter was adjourned to 30- 4-2009 to be taken up at 8.30 a.m. However, on that date the Court was informed that the counsel for the plaintiff has left the country and would be available somewhere in the middle of August, 2009; The request was vehemently opposed and the matter was posted to 5-5-2009 with the notice to the plaintiff to make alternate arrangements in case counsel is not available. On 5-5- 2009 representative of the plaintiff appeared and sought time for making alternate arrangement and consequently the matter at his request was adjourned for today. Today despite several calls no one has appeared from the side of the plaintiff.
3. ' Mr. Shaiq Usmani learned counsel for defendant No,5 has contended that plaintiff had advanced finance facility to Messrs Karachi Ghee Mills (Pvt.) Ltd., against two letters of credit bearing Nos.1624 and 1629 for import of RBD Palm Oil. The repayment of the said finance facility beside personal guarantees and mortgage was secured through a letter of hypothecation creating charge on the palm oil stored in the tankers of defendant No,1 and the defendant No,1 had undertaken vide its letter dated 5-11-1995 not to effect delivery of the said palm oil without delivery orders issued by the plaintiff. The plaintiff thereafter initiated recovery proceedings under section 7 of the Banking Companies (Recovery of Loans, Advances,. Credits and Finances) Ordinance, 1997 for recovery of Rs,122,855,717.05 against Messrs Karachi Ghee (Pvt.) Ltd., and its Directors who are also the Directors of defendant No,1 by filing Suit No,505 of 1997 before this Court without joining the defendant No,1 or enforcing the undertaking dated 5-11-1995 though the claim of the plaintiff was only in respect of said two letters of credit. The plaintiff thereafter obtained a decree and filed Execution Application No,61 of 1998 for the sale of mortgaged properties of Messrs Karachi Ghee Mills (Pvt.) Ltd., and or its Directoxs and for the balance sought arrest of its directors/guarantors.
4. ' Per Mr. Usmani in view of this position the instant suit is not only barred by law of limitation but also barred under the principles of res judicata as well as Order II, rule 2, C.P.C. It was lastly contended that even if the suit is not dismissed the order whereby the oil installations/terminal previously owned by defendant No,1 were attached in the instant suit is liable to be recalled as defendant No,5 has purchased the said oil terminals bonafidely without notice in execution proceedings bearing No,21 of 2001 pending against defendant No,1 in this Court.
5. ' I have heard learned, counsel and have perused the record thoroughly.
6. ' It appears that the instant suit has been filed by the plaintiff against Messrs Karachi Tank Terminal (Pvt.) Ltd. (defendant No,1) and its Directors (defendants Nos.2 to 4) on the basis of letter dated 5- 11-1995 whereby the defendant No,1 had acknowledged the storage of two consignments of RBD palm oil having total quantity of 3967.558 m.t. Imported through letters of credit Nos.001624 and 001629 and undertook not to effect delivery without duty paid bill of entry accompanied by valid delivery order issued by the plaintiff-Bank and now the plaintiff is claiming a decree directing defendant No,1 to release 4000 M.T. Of palm oil or to pay a sum of US$ 2895894.78 in lieu thereof.
7. ' The record reflects that upon non-payment of finance facility in respect of the aforesaid two letter of credits plaintiff had filed before this Court recovery Suit No,505 of 1997 against the importer Company and its Director/Guarantors, for recovery of the amount advanced against RBD Palm Oil, and in para.10 of the plaint had asserted that the cargo/RBD Palm Oil in respect of the said two letter of credits was stored in the bounded warehouse and oil storage tank by the name of Messrs Karachi Tank Terminal (Pvt.) Ltd. (defendant No,1) owned by defendants Nos.2 and 3 (who are common in Suit No,505 of 1997 and this suit) and obtained a money/mortgage decree in the sum of Rs,106,875,361.30 with mark-up at the rate of 16% from the date of suit till recovery and to enforce such decree had filed Execution No,61 of 1996.
8. ' After obtaining money/mortgage decree for the price of RBD Palm Oil against the importer Co., and its Directors the plaintiff has again filed this suit and this time against the tanker company with whom oil was stored seeking delivery of oil or money in lieu thereof. In short plaintiff is asking for a second money decree for the same oil. As to the cause of action it is asserted in para.8 of the plaint that the plaintiff has been asking the defendant for the delivery of the stored palm oil (without giving the date of demand) and the defendants have failed/avoided to deliver.
9. ' Taking up the first plea as to whether in the circumstances the instant suit is barred under Order II, rule 2, C.P.C. It would be beneficial to reproduce sub-Rule (3) of rule 2 of Order II, C.P.C. Along with its explanation which reads as follows:-- "Omission to sue for one of several reliefs.--(3) A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.
10. Explanation. For the purposes of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action."
11. A minute perusal of the aforesaid Rule reflects that in cases where a litigant is entitled to more than one reliefs on the basis of same cause of action then he is bound to join all the reliefs in one suit and the omission to join any relief unless permitted by the Court disentitles him to sue for the relief so omitted. Applying the aforesaid test to the case in hand would reflect that the cause of action appears to be non-payment of money on account of aforesaid letter of credits and the reliefs which the plaintiffs could seek were sale of mortgaged properties, money decree against the guarantors and probably a decree against the present defendants for delivery of RBD Palm Oil or money in lieu thereof (against two of them plaintiff A already holds money decree in the previously instituted suit on the basis of same cause). In other words the plaintiff has omitted to sue for a collateral security and or failed to loin/claim one of the relief available on the basis of same obligation for which plaintiff has obtained a decree and per explanation of sub-Rule (3), it can safely be concluded that such collateral security was to secure the repayment under the same obligation for which the plaintiffs hold a decree and constitutes one cause of action as defined by the apex Court in the case of Abdul Hakim and 2 others v. Saadullah Khan and 2 others PLD 1970 SC 63 by holding:-- "The expression "cause of action" in Order II, rule 2, C.P.C. Means the cause of action for which a suit is brought. In order that the cause of action for the two suits may be the same it is necessary not only that the facts which would entitle the plaintiff to the right claimed must be the same but also that the infringement of his right at the hands of the defendants complained against in the two suits, must have arisen in substance out of the same transaction. In considering the application of this bar, regard is to be had to the allegations in the two suits without reference to the defence that may be set up by the defendants. As laid down by their Lordships of the Privy Council in Muhammad Khan and others v. Mehboob Ali Mian and others (1) "the bar under Order II, rule 2 refers entirely to the grounds set out in the plairit as the cause of action or, in other words, to the media upon which the plaintiff asks the Court to arrive at a conclusion in his favour". A rough test, although not a conclusive one is to see whether the same evidence will sustain both suits which would be the ,case if both the suits are founded on continuous and inseparable incidents in the same transaction."
12. Likewise in the case of Abdul Ghafoor v. Settlement and Rehabilitation Commissioner Karachi 1971 SCM R 602, it was held by the Honourable Supreme Court that litigant is not allowed to split up his grounds to seek relief in respect of the same cause of action and make different petitions at different times.
13. After examining the case of the plaintiff on aforesaid principles, there is no doubt in my mind that the cause of action in the previously instituted suit for which the plaintiff holds a decree and the instant suit appears to be the one and the same and the plaintiff could not competently file two separate suits by splitting up his claim and that too without disclosing the fact of having earlier obtained money decree on same cause or advancing any reason for filing separate suit and that too without permission from the Court. The explanation to sub-rule (3) of Rule 2 of Order II, C.P.C.
14. Makes it abundantly clear that successive breach of one obligation would be deemed to give rise to one cause of action and in the instant case nonpayment of the finance facility was one cause of action entitling the plaintiff to various reliefs and since the plaintiff has omitted to sue for one of the relief therefore, is not entitled to sue on the basis of relief so omitted. The suit consequently is dismissed being barred under Order II, Rule 2, C.P.C. Upon dismissal of the suit application listed at Sr. No,1 has become infructuous and therefore is dismissed.