' SALMAN HAMID, J.--- (MAINTAINABILITY) Among other dates on 9-9-2010, a detailed order was passed by this Court, whereby the plaintiff was put on notice to satisfy on the maintainability of the present suit. The question cropped up when the learned counsel for defendants Nos.1 to 9 pointed out in the written statement that earlier in time, this plaintiff filed Suit No,913 of 2010 against the same defendants before the IInd Senior Civil Judge Karachi, East. No relief in that Suit by way of an interlocutory measure allowed, present Suit was filed for the same relief. A copy of the plaint of Suit No,913 of 2010 was brought on record.
2. It was thus, argued, by the learned counsel that the present Suit being between the same parties and on the same cause of action as in Suit No,913 of 2010, this Suit merits dismissal. Two suits on same cause of action, it was argued, are not maintainable between the same parties.
3. All that was said by the learned counsel for the plaintiff in answer to the above crucial argument: that Suit No,913 of 2010 that was filed by the plaintiff before the IInd Senior Civil Judge Karachi, East has been withdrawn on 16-9-2010, and, therefore, this Suit can go on.
4. I. Have heard both the learned counsel and have also perused the record.
5. Bare comparison of the plaint in the present Suit with the plaint of Suit No,913 of 2010 would manifest that the plaintiff and the main contesting defendants are the same. Prayers in the present Suit are also the same as raised' in Suit No,913 of 2010, though couched differently with addition of prayer for damages. It is also available on record that when the present Suit was filed, Suit No,913 of 2010, was still in the field and that Suit No,810 of 2010 was also tiled and still pending before the same Court (IInd Senior Civil Judge, Karachi, East), initiated by the defendant No,3 in this Suit (Secretary of the plaintiff) wherein injunction application was also filed and a restraining order was passed on 9-9-2010. No appeal, review or an application for discharge, variation or setting aside order dated 9-9-2010 was filed by the plaintiff. This injunction order is still operating.
6 Section 12, C.P.C. Reads as under: -- "12. Bar to further suit.---(1) Where a plaintiff is precluded by rules from instituting a further suit in respect of any particular cause of action, he shall not be entitled to institute a suit in respect of such cause of action in any Court to which the Code applies."
It would be seen from above reproduced provision of law that where a plaintiff is precluded "by rules" from instituting "a further suit" in respect of "any particular cause of action" he shall not be entitled to institute a suit in respect of such "cause of action" in any court to which the Code applies. On many occasions, this court and the Hon'ble Supreme Court have interpreted the phrase "precluded by rules". In the present case it has come on its record that on 16-9-2010, the plaintiff in its infinite wisdom chose to withdraw Suit No,913 of 2010, that was filed earlier in time by it before the lInd Senior Civil Judge, Karachi, East. If this withdrawal is gauged in view of the provision of Order XXIII Rule 1, C.P.C., and put in juxtaposition with the language of section 12, C.P.C., reproduced above, to the extent of, "precluded by rules" the plaintiff could have not, under the law, filed the present Suit at all. Nevertheless this Suit was filed by the plaintiff against the same defendants and on the same cause of action as was shown to be available in Suit No,913 of 2010. Even if for any reason the plaintiff argued that since the Suit No,913 of 2010 was withdrawn after filing of the present Suit and that too without any objection being raised by the defendants in Suit No,913 of 2010, still the present Suit is hit by above Section 12, C.P.C. Inasmuch as that it clearly stipulated that the "plaintiff is precluded by rules from instituting further suit." This, admittedly, being a further suit", was not maintainable. There could have been yet another argument from the side of the plaintiff to salvage the present suit. A prayer for damages, which was not available in the suit filed earlier before the II- -Senior Civil Judge, Karachi, East by the same plaintiff; between the same parties; on the same cause of action could have been taken as a ground for the survival of the present suit. To which it may be observed that clause 1 of Rule 2 of Order II, C.P.C. Provides that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court. It is, therefore, left or the discretion of the plaintiff how he, "frame" his suit and choose jurisdiction, according to his suiting, if. Law permits. However, once the plaintiff has opted, then by virtue of clause 2 of Rule 2 of Order II, C.P.C. He, "shall not" afterwards sue in respect of the omitted or relinquished claim. Since the plaintiff omitted and/or relinquished to raise the claim of damages in Suit No,913 of 2010, he could have not raised the prayer of damages in this suit. Therefore by virtue of clause of Rule 11 of Order VII, C.P.C., this suit was barred by law and could have not been instituted and/or entertained at all. This being a settled position of law, I am afraid to observe that the present Suit was not maintainable at all and ought to have been nibbed in the bud at the very inception. The plaint is therefore rejected under Order VII Rule 11(d,) C.P.C.
Plaint rejected.