MANSOOR AKSAR KOKAB, J. .The present revision petition assails the judgment dated 14.12.2005, awarded by the learned Additional District Judge, Gujranwala, because of remand order passed by this Court, cited as 2004 M LD 1553 (Mst Shaheen Ishfaque and others v. Additional District Judge and others), passed in Writ Petition No. 6456/2003, heard on 21.6.2004. Because of limited scope of this Court exercising the revisional jurisdiction and having the restraint vis-a-vis exercise of full- fledge appellate jurisdiction, the concurrent findings of the learned Trial Court and that of the Appellate Court pertaining to facts, are not to be interfered except for the purposes of mere reference or for determining the alleged questions of jurisdiction i.e. Wrong exercise of jurisdiction by the Appellate Court or the lower Court, not exercising the same by them inspire of existence of circumstances to have exercised, transgressing the jurisdiction in deciding the matter at issue in the light of record of the files and assuming the jurisdiction not vested with them.
2. Even on remand, the learned Appellate Court maintained the previous judgment awarded by the learned Trial Court and the then Appellate Court by holding that though in the particular facts and circumstances of the case the provisions of Order II, Rule 2, C.P.C, were not applicable but because of provisions of Order XXIII, Rule 1(3), the second suit's plaint" was liable to be rejected under Order VII, Rule 11, C.P.C., hence, same was so ordered.
3. The admitted facts are that present petitioner initially filed a suit for Perpetual Injunction, which was withdrawn unconditionally. Thereafter the suit for declaration with consequential relief as that of grant of injunction was filed with regard to same subject property, In the initial suit the plaintiff disclosing the facts of his ownership over the land based his suit on the cause of action allegedly having been erupted because of an act of the then defendants, whereby the plaintiff was restrained from .Raising the construction upon the disputed piece of land because of said undue interference and obstruction caused by the defendants of the suit, In reply to the plaint, the then defendants asserted their own co-ownership vis-a-vis disputed land with further explanation that on 28.4.1995 the defendants were dispossessed by the then plaintiff illegally and forcibly and the revenue record had been manipulated by the defendant in connivance with the revenue staff. The said written statement was filed on 27.7.1995. The request of the then plaintiff to withdraw the suit was accepted by order dated 8.10.1995 of the learned Trial Court. The subsequent suit for declaration and Permanent Injunction was filed Qn 2.9.1997 asserting the facts that the then plaintiff/present petitioner was in occupation of the disputed land because of private petition having been effected between the co-sharers and the contention of the defendants to be co- sharer in the said disputed piece of land, was self- concocted whereas in fact, they had accepted the private partition between them.
4. Though it can be very safely assumed that at the time of filing the suit for Injunction, the plaintiff had assumed that he was exclusive owner of the land but for filing of the written statement by the then defendants/present respondents, the title of ownership was negated & denied, therefore, the need to i.e the suit for declaration vis-a-vis exclusive ownership, on the basis of private partition, had arisen, the moment the written statement was filed on the date, referred hereinabove.
Naturally, the cause of action for filing a suit for. Declaration accrued the day the written statement was filed i.e. 27.7.1995, much later than the date of cause of action having been accrued for the suit of injunction only which was later-on withdrawn, In other words, as the cause of action must be antecedent to the institution of the suit hence at the time of filing a mere suit for injunction, the plaintiff was not possessed with any cause of action for filing the suit for declaration. As it is the cause of action what give rise jurisdiction to the Civil. Court for entertainment of a suit of a party, therefore, it can be safely held that definitely for filing of a suit for declaration along with injunction or that as a consequential relief, the cause of action meant for previously filed suit, which was later-on withdrawn, was not the one for the purposes of the second suit; filed by the present petitioner. Even at the time of filing the first suit, based on assertion that the plaintiff was holding the land exclusive of any other's ownership, the relief with regard to declaration of ownership could not even had been thought to. Be asked for, as such was never declined or negated by any one.
Both of the. Suits being in nature of independent of each other as. Having different dates of the causes of action are to be dealt accordingly independent of each other for all respect. The date of filing the subsequent suit, referred hereinabove i.e. Within less than two years, approximately, of withdrawal of the first suit, makes the filing of the suit for declaration as within. Limitation.
5. This Court is not in consonance with the opinion expressed by the learned Appellate Court that it was incumbent upon the plaintiff/appellant/the present petitioner that instead of withdrawal of their suit for Permanent Injunction they should have 'filed an application for amendment of the plaint converting their suit for Permanent Injunction into a suit for declaration along with the consequential relief, of injunction rather than withdrawal of that without any request to re-i.e the same for the simple reason that firstly, the amendment recommended by the learned Appellate Court as not even grantable, as not only the nature of the suit was to be Changed altogether rather the cause of action for the same suit had separately arisen, giving a fundamental right to the plaintiff to i.e the. Suit independently based upon the fresh cause of action within the limitation period and secondly, the first suit was for mere seeking the restraint order against the then defendants from alleged interference into possession of the then plaintiff over the land-in- question and then being raised structure, whereas in the second suit, it was for declaration and the injunction relief was a natural one to flow into relieves to be have had from the Court as a consequence of the original suit. The nature of the two suits being separately distinguishable allow the aggrieved party to i.e suit as and when he desires provided the date of accrual of cause of action for the same falls within the limitation period counted from the date of filing the said suit.
6. Because of above observations, the findings of the learned Appellate Court are reversed while accepting the present revision petition. Consequently, the earlier order of the learned Trial Court than the remand order from this Court for rejection of the plaint, is also set aside. The suit of the plaintiff is deemed pending before the Trial Court, to be adjudicated upon merits.