' ABDUL RASOOL MEMON, J. The applicant being aggrieved and dissatisfied with the Order dated 21- 4-2009 has preferred this revision application whereby the plaint of the applicant (plaintiff) was rejected by the court of IXth Senio}' Civil Judge Karachi (East) holding that the suit is barred by law of Registration and Suit valuations Act. Subsequently, on appeal the learned Vth Additional District Judge maintained the impugned order by imposing the cost, vide impugned Judgment dated 1- 10-2010.
2. The case of the applicant (plaintiff) as per pleadings is that he filed the suit for Specific Performance of the Contract against the respondent stating therein that he has sold his share of inheritance in Plot No,172-E, Block No,II, Tariq Road, P.E.C.H.S. Society, Karachi by executing deed of declaration and simultaneously executed power of attorney in favour of appellant on 30-11-2000 while shop in the said premises was also purchased. According to the applicant (plaintiff)
Rs,800,000 were paid by him to, the respondent and Rs,200,000 as per agreement were to be paid at the time of execution of the Sale-Deed. Be that as it may, fact remains that the applicant had remained as a tenant of the respondent and his "predecessor-in-interest" and after the death of his father he remained tenant of his legal heirs. Later on, the applicant has filed a suit for Accounts and Partition claiming therein to be the partner of the predecessorin-interest of the respondent.
However, his said suit was dismissed by the trial Court and then appellate court. The respondent and other legal heirs of the deceased Imam Bux, father of the respondent filed the Rent Application wherein the ejectment order was passed against the applicant against which he did not prefer appeal. Afterwards in lieu of writ of possession, said shops were vacated by the applicant and in the meanwhile applicant has filed suit during the pendency of First Rent Appeal.
4. Heard the learned counsel of both the parties.
5. Learned counsel for the applicant has argued that order of the learned trial Court and so also of the appellate court are contrary to law as it was not taken into consideration that if the plaint was not properly valued then under Order VII, Rule 11, C..P.C., the court was competent to call upon the plaintiff (applicant) to correct its 'valuation and to pay the court-fee. It is further contended by the learned counsel for the applicant; that non-registration of the agreement does not bar for filing of the suit for Specific Performance of the Contract because even on the basis of an oral agreement the suit could be maintained. He has contended that the learned trial Court and the appellate court have exercised their jurisdiction vested with them illegally and unlawfully, therefore, their verdicts have been challenged in this revision application.
5A. Learned counsel for the respondent has argued that the very revision is not maintainable against the concurrent decrees passed by the two courts below inasmuch as under the law there is provision of second appeal under section 100, C.P.C. Before the High Court. According to him the revision application cannot be filed against the Decree and this dictum is very much available under the provisions of section 115. He has contended that the applicant though has filed earlier suit for Accounts and Partition on 24-5-2001 while the agreement which the (applicant) plaintiff claims to have been executed by the present respondent with him on 30-11-2000, however, this fact did not find place in earlier suit filed by him, therefore, under Order II, Rule 2, C.P.C. The applicant/plaintiff is barred to file this suit for specific performance of contract. He has further contended that the applicant has come before the court with unclean hands and being a tenant was pressurizing the respondent by filing multiple cases. In support of his contention, he has placed reliance on the cases of Naseem Ahmed and another v. Air Botswana (Pvt.) Ltd. And 5 others (1991 MLD 141), Masetay Khan through Legal Heirs v. Mst. Ghulam Fatima alias Gullan and others (2001 CLC 636), Usman and others v. Shahru (1987 MLD 165), Faquir Muhammad and 48 others v. Province of Punjab through Collector/Deputy Commissioner and 4 others (PLD 1993 Lahore 439), Niaz Muhammad v. Mst. Noori (1997 MLD 406), Amjad Ali v. Muhammad Sarwar and others (2001 PCr.LJ 1706 Lahore), Muhammad Riaz v. Karachi Metropolitan Corporation through Director, Land and Estate and another (2000 CLD 1107 Karachi) and Qurban Ali v. Hoor Bux and 2 others (1991 CLC 248 Karachi).
6. I have given careful consideration to the arguments and gone through the relevant record. The word "decree" is defined in Order II of C.P.C. And section 2 Rule 2, C.P.C. States that the decree include the order of rejection of plaint and against the decree first appeal lies under section 96 and second under section 100, C.P.C.
7. The contention raised by the learned counsel for the applicant could have been agitated under section 100, C.P.C. In second appeal. For convenience, I reproduce herein section 115, C.P.C:-- ' Section 115---Revision.---(1) The High Court may call for the record of any case which has been decided by any court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate court appears (underline by mine).
(a) to have exercised a jurisdiction not vested in it by law, or
(b) to have failed to exercise a jurisdiction so vested, or
(c) To have acted in the exercise of its jurisdiction illegally or with material irregularity. (Underlining is of mine)
8. The provisions of section 115 clearly indicate that where there is provision of appeal, revision cannot lie. Under section 102, C.P.C., no second appeal shall lie:--
(i) in any suit of the nature cognizable by courts of Small Causes, when the amount or value of the subject-matter of the original suit does not exceed (twenty-five thousand) rupees; and
(ii) in any other suit, when the amount or value of the subject-matter of the original suit does not exceed (two hundred fifty thousand) rupees.
9. In para-14 of the plaint the applicant has valued the suit for the purpose of court-fee at Rs,20,00,000 (Rupees twenty lac only), therefore, the plaintiff also cannot take the benefit of section 102, C . P. C .
10. In view of the above circumstances, I have no hesitation in holding that where there is a provision of appeal, no revision lies. In this respect I am fortified by the case-law relied upon by the learned counsel for the respondents supra.
11. Adverting to the merits of the case, it is an admitted fact that the agreement was executed in the year 2000 and first suit for accounts and partition was filed in the year 2001 and as per Order II. Rule 2 every suit shall include the whole of the claim which the applicant (plaintiff) is entitled to make in respect of cause of action, but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any court. Sub-rule (2) provides that where a plaintiff omits to sue in respect of, or intentionally relinquishes, F any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished, therefore, in view of the above provision of law when the plaintiff pleaded that respondent/defendant has sold out his share to him and sue the mother of respondent for partition and rendition of accounts, has not disclosed this fact in his earlier Suit No,692 of 2001. Learned counsel for the applicant on court query admitted, this position.
Therefore, suit filed by the applicant is hit by Order II, Rule 2, C.P.C.
12. In view of the above circumstances, the applicant has not availed remedy of appeal under section 100, G C.P.C. Available to him, therefore, his revision is not maintainable. Moreover, in view of the fact that he has relinquished omitted to sue the respondents in his previous suit, thus, his subsequent suit is hit by Order II Rule 2 C.P.C. With above observation, the Revision Application merits no consideration and stands dismissed.