' RAJA SAEED AKRAM KHAN, J.---This appeal, with the leave of the Court, arises out of the judgment and decree of the High Court dated 9-3-2010, whereby appeal filed by the present appellant is dismissed.
2. The gist of the case for disposal of this appeal is that the plaintiff-appellant filed a suit for declaration along with permanent injunction cum recovery of possession against the respondents in respect of suit-land bearing new Survey Nos.29 and 45 measuring 18 kanals, 15-1/2 marlas, situate at Danna Machiarah, Tehsil and District Muzaffarabad in the Court of Additional Sub- Judge/Civil Judge Muzaffarabad on 25-9-1997. After necessary proceedings, the trial Court dismissed the suit on 30-9-2003. Feeling aggrieved from the judgment and decree of the trial Court, the'plaintiff-appellant filed an appeal before the District Judge Muzaffarabad which also met the same fate. Feeling dissatisfied from the judgments and decrees of both the courts below, the plaintiff-appellant filed second appeal before the High Court which was also dismissed on 9-3- 2010. This judgment and decree of the High Court is subject-matter of this appeal.
3. Shaikh Abdul Aziz, Advocate, the learned counsel for the plaintiff-appellant, argued that the judgments and decrees of all the three Courts below are against law and facts of the case. He argued that the judgments and decrees of the Courts below are based on misreading and non- reading of evidence and the Courts below have miserably failed to appreciate the evidence in its true perspective. He submitted that the Courts below failed to evaluate the documentary evidence adduced by the plaintiff-appellant in the pleadings. He further argued that the Courts below failed to consider the fact that the suit filed by the plaintiff-appellant prior to the instant suit was with regard to the shares between two brothers, while the instant suit is filed on forcible dispossession of the plaintiff. This fact has not been denied by the defendant- respondents in their written statement. He further submitted that. The Civil Judge Muzaffarabad has wrongly decided issue No,1 holding that the plaintiff-appellant has got no cause of action. .He argued that the trial Court also failed to consider the important aspect of the case that the defendant-respondents have not denied the alleged transactions made with respect to the landed property and have not put up any adverse claim. An evasive denial has been made by the defendant-respondents and now it is settled that the evasive denial amounts to admission. The learned counsel urged that the Courts below have reached at the wrong conclusion while holding that the suit filed by the plaintiff- appellant is hit by the provisions of Order IX, Rule-9 of Civil Procedure Code, whereas, the fact of the matter is that the subsequent suit was filed on a different cause of action. He argued that the previous suit was with regard to the share of the property between the real brothers while the instant suit is filed on the ground that the suit-land has forcibly been occupied by the defendant- respondents. So, the cause of action in the instant case is different one.
4. On the other hand, Mr. Muhammad Yagoob Khan Mughal, Advocate, the learned counsel for the respondents, strongly supported the judgment and Lcree recorded by the High Court while arguing that the same are perfect and legal. The learned counsel further submitted that the suit filed by the plaintiff-appellant is hit by the provision of section 11, Order VII, Rule 11 and Order IX, Rule 9 of Civil Procedure Code. The cause of action is the same as was contemplated in the former suit dismissed for want of prosecution in the year, 1992. He argued that there are concurrent findings of all the three Courts below as there is no misreading or non-reading of evidence, therefore, the same cannot be interfered with. The provision of Order IX, Rule 9 of the Civil Procedure Code is fully applicable in this case. He has also diverted our attention towards the prayer clause of both the suits and argued that the prayer is the same and the subject-matter of the case is also the same which are the basic important ingredients for attraction of the provisions of Order IX, Rule 9 of Civil Procedure Code.
6. (sic.) We have heard the arguments of both the learned counsel for the parties and also gone through the judgment and decree of the High Court as well as the Courts below and perused the record with the able assistance of the learned counsel for the parties. A suit for declaration along with permanent injunction-cum-recovery of possession was filed by the plaintiff-appellant against the defendants-respondents in respect of suit-land bearing new Survey Nos. 29 and 45 measuring 18 kanals, 15-1/2 marlas, situate at Danna Machiarah, Tehsil and District, Muzaffarabad in the court of Civil Judge, Muzaffarabad on 5-9-1997 with the following prayer:-{{URDU TEXT}} ' The prayer clause of the suit filed by the plaintiff appellant on 3-3-1987, which was dismissed for want of prosecution on 23-5-1992 is as under:-{{URDU TEXT}} ' The trial Court vide its judgment and decree dated 30-9-2003 concluded as under:--{{URDU TEXT}} ' After going through the contents of the prayer clauses of both the suits, it is evident from the record that the former suit filed by the plaintiff-appellant against the father of defendants- respondents herein was in respect of suit-land comprising Khasra Nos. 58 old, new 29, 59 old and 45 new on the same cause of action which was dismissed for want of prosecution on 23-5-1992. It is also evident from the record that some evidence was also recorded in the former suit. From the record of the case and the impugned judgment of the High Court, it is evident that the parties in the former suit had recorded their evidence when the same was dismissed for want of prosecution.
The prayer clauses of both the suits depict that the cause of action involved in both the suits is the same.
7. The real controversy between the parties is whether the cause of action in both the suits is the same and whether after dismissal of earlier suit, the subsequent suit on the same cause of action is barred by law. As in aforementioned para, we have held that the cause of action in both the suits is the same and the instant suit is barred under law. It would be appropriate to reproduce Rule 9 of Order IX, Civil Procedure Code which speaks as under:- "9. Decree against plaintiff by default bars fresh suit.---(1) Where a suit is wholly or partly dismissed under Rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside and if he satisfies the Court that there was sufficient cause for his nonappearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit and shall appoint a day for proceeding with the suit.
(2) No order shall be made under this rule unless notice of the application has been served on the opposite party.
(3) The provisions of section 5 of the Limitation Act, 1908 (IX of 1908), shall apply to applications under sub-rule (1)."
After going through the above said provision, it is crystal clear that if a suit is dismissed for want of prosecution, the proper course for a party is to move the Court to set the dismissal aside and if the party succeeds to convince the Court that there was sufficient cause for its nonappearance, when the suit was called on for hearing, the Court is fully competent to pass the appropriate order for setting aside the dismissal order. The paramount consideration for the Court is to do complete justice between the litigant parties. Under law, the plaintiff-appellant has to move an application for restoration of the suit but instead of doing so the plaintiff-appellant filed a second suit on 25-9- 1997 on the same cause of action.
8. The perusal of contents of suits shows that in the former and the subsequent suit, the parties, the suit property, the cause of action and the prayed relief are the same? Hence, under law the subsequent suit filed by the plaintiff-appellant is estopped. Here we may observe that if a suit dismissed for default, the principle of resjudicata is not applicable, however, the plaintiff-appellant is barred from bringing a fresh suit on the same cause of action as laid down in a case titled Abdul Haq v. Mst. Ghulam Fatima and 3 others (PLD 1987 Lah. 574), it was observed as under:-- ' If a suit is dismissed in default, fresh suit on the basis of the same cause of action does not lie.
Cause of action is the bundle of facts which are alleged by the plaintiff to secure the relief sought by him. Plea of the petitioner in his earlier suit as well as in the subsequent suit was that Umar Din had entered into an agreement to sell the house to him, for Rs, 6,000 and handed over the possession thereof to him on receipt of Rs,2,000 towards sale price. As for the balance of the sale price, it was to be paid by the petitioner at the time of the registration of the sale-deed, but Umar Din (Defendant) in the earlier suit) and, on his death, the respondents (Defendants in the subsequent suit, who are successorin-interest of Umar Din), refused to execute the sale-deed although 'he (petitioner) was always ready to pay the balance of Rs,4,000. It would, therefore, follow that the facts alleged by the petitioner to voice his grievance in both the suits were the same and thus the cause of action for the subsequent suit was not different from that of his earlier suit. No doubt valuation the subsequent suit was not the same as that of the earlier suit and in the first suit the petitioner had simply prayed for a declaration but in the second suit he had asked for a declaration and had, in the alternative, sought the relief for specific performance but that makes little difference because valuation of the suit and the relief claimed do not constitute cause of action or form part of the cause of action for a suit. Since cause of action for the two suits of the petitioner was same, his subsequent suit was hit by Order IX, Rule 9 of the Code of Civil Procedure."
' In another case titled Ellappa Naicken vs. K. Lakshmana Naicken and others (AIR (36) 1949 Madras 71), it was held as under:-- "3. The effect of this dismissal under O.IX, R. 9, Civil P.C., is that the plaintiff is precluded and debarred from brining a fresh suit on the same cause of action for the same relief."
' Similarly in the case reported as Baru and others vs. Maya Ram and others [AIR 1952 Punjab 261], it was observed as under:-- "15. What I have to determine in this case is as to whether the two suits have been brought on the same cause of action. In both suits I find that the plaintiffs claimed that they were in possession as Pattidars of the same 'got' and prayed for declaration that they had a better right to remain in possession. In the two plaints, which I have referred to above, there is no difference at all in the allegations made excepting the addition in the second one of a re-denial of plaintiffs' right 15 days before the suit. In my opinion, if a suit is dismissed for default, no second suit is possible on the same cause of action and that is exactly what the plaintiffs are trying to do in the present case. In the previous suit the plaintiffs had asked for declaration with regard to that portion of the land of which they had been held to be in possession and the suit was dismissed in default and therefore under O.IX no second suit can be brought on that cause of action."
11. (sic.) As we have observed that the cause of action in both the suits filed by the plaintiff- appellant was same, therefore, the subsequent ' suit is hit by the provisions of Order IX, Rule 9, C.P.C.
In this regard, reliance can also be placed on Abdul Haq v. Mst. Ghulam Fatima and 3 others PLD 1987 Lah. 574 in which it has been observed as under:-- It would, therefore, follow that the facts alleged by the petitioner to voice his grievance in both the suits were the same and thus the cause of action for the subsequent suit was not different from that of his earlier suit. No doubt valuation of the subsequent suit was not the same as that of the earlier suit and in the first suit the petitioner had simply prayed for a declaration but in the second suit he had asked for a declaration and had, in the alternative, sought the relief for specific performance but that makes little difference because valuation of the suit and the relief claimed do not constitute cause of action or form part of the cause of action for a suit. Since cause of action for the two suits of the petitioner was the same, his subsequent suit was hit by Order IX, Rule 9, of the Code of Civil Procedure."
12. The expression 'cause of action' means the totality of the material facts which is necessary for the plaintiff to allege and prove in order to succeed and get 'a decree in his favour which has been interpreted by the Supreme Court of Pakistan in a case titled Said and others v. Fazal Hussain and others (PLD 1959 SC 356) in which the Court has held as under:-- ' It is well-settled that the expression 'cause of action means the totality of the material facts which is necessary for the plaintiff to allege and prove in order to succeed
13. Admittedly, in this case the cause of action in both the suits is same, therefore, the High Court was justified to hold that on the same cause of action, the subsequent suit cannot be filed. The proper course available to the plaintiff after the dismissal of the suit for non-prosecution was to move an application for restoration of the suit which remedy has not been availed by the plaintiff- appellant. In the instant case, the trial Court dismissed the suit and District Judge also dismissed the appeal. We are convinced by the findings of the High Court that second appeal can only be competent in the High Court if the same is filed within the parameters given in section 100 of C.P.C.
The second appeal filed under section 100 of C.P.C., can summarily be rejected if the same is based upon any of the grounds mentioned in that section. We are fortified in our view by a case reported as Karam Dad and 3 others v. Mst. Barkat Jan and 10 others 2004 CLC 910 in which the Court has held as under:-- ' The learned Judge in the High Court under the embargo contained in section 100 C.P.C., observed that he had no jurisdiction to entertain the second appeal against the concurrent findings of the Courts below, particularly when it was not brought to his notice, that the finding so recorded suffer from any misreading or non-reading of evidence. The view expressed by the learned Judge in the High Court, therefore, in accordance with the provision contained in section 100 of the C.P.0 ' Similarly in a case titled Safdar Ali Khan v. Azad Government and 2 others (2010 SCR 250), it has been observed by this Court as under:-- " As has been observed in the preceding paras that admittedly this is second appeal and the scope of second appeal is confined only to the grounds stated in section 100, C . P. C..." The nutshell of the above discussion is that the plaintiff-appellant has failed to point out any illegality in the judgments and decrees passed by the High Court and the Courts below. All the Courts below have attended all the questions involved in the suit properly. There are concurrent findings of three Courts below which cannot be interfered with as the plaintiff-appellant could not succeeded to point out any misreading or non-reading of evidence. Resultantly, this appeal is dismissed with no order as to costs........................................................