' MUNIR AHMED CHAUDHARY, J. --- This appeal has been filed against the judgment and decree of Additional District Judge, Mirpur dated 12.06.2013, through which the suit for possession of the disputed house was decreed in favour of the respondent/plaintiff. {{BLUR PAGE}}
2. The gist of the facts giving rise to the present appeal are that the respondent/plaintiff Abdul Qayyum filed a suit for recovery of possession of House No, 18, Sector A/3, Mirpur to the extent of 11/4 Marla. It was stated in the suit that the above-mentioned house was in the joint ownership of the appellant and his other three brothers including the respondent. The appellant agreed to sell his portion of the house to the respondent and the respondent paid him Rs, 50,000/- but did not pay the remaining price money regarding a portion of the house measuring 11/4 Marla which was in possession of the appellant, so the appellant was not bound by the agreement Later on the respondent/plaintiff Abdul Qayyurn filed a for specific performance of the agreement in the Court of Additional District Judge, Mirpur. The said suit was decreed and the respondent/plaintiff deposited the remaining price money of the house in compliance of decree of the- Court it was further stated' that the respondenti;)l,bntii -.Another suit for possession of the house in the Court of Additional District Judge, Mirpur who decreed the suit of the respondent on 12.06.2013. Feeling aggrieved, the present appellant/defendant has filed the instant appeal before this Court. {{BLUR PAGE}}
3. Arguments were advanced by the learned counsel for the parties. Mirza Zaid-Ullah Khan, Advocate, the learned counsel for the appellant argued that it was enjoined upon the respondent/plaintiff to include the whole of his claim in his first suit, but the respondent/plaintiff did not pray for possession of the house and omitted the said claim from his first suit. Now, the respondent/plaintiff was barred to claim possession of the house through the second suit under Order II, Rule 2 of Civil Procedure Code. So, the decree issued by the learned Additional District Judge, Mirpur was bad in the eye of law. The respondent/defendant did not obtain permission to file his second suit from the concerned Court. The learned counsel requested to accept the appeal and referred the following precedents in support of his arguments: AIR 1955 Calcutta 402, 2013 SCR 172.
4. While controverting the learned counsel for the appellant, Mr. Asghar Hussain Advocate, the learned counsel for the real respondent contended that the cause of action was totally different in the second suit filed by the respondent/plaintiff. The respondent/plaintiff was not a sole owner of the portion occupied by the present appellant at the time of filing his first suit. The present respondent became sole owner of said portion of the house when the decree for specific performance was issued in his favour and the said portion of the house was transferred in his name in accordance with the provisions of law and in compliance of the said decree. Later on, the present appellant/defendant refused to handover possession of the said portion of the house to the present respondent and the present respondent filed his second suit having a new and different cause of action. So, the respondent was not barred by any provision of law to file his second suit. The learned counsel requested to dismiss the appeal and referred the following precedents in support of his arguments: PLD 1963 Kar. 969 PLD 1975 Pesh. 17 PLD 1975 Lah. 563
5. After hearing the learned counsel for the parties, I have gone through the record available and perused the precedents referred carefully and minutely. The present appellant has taken this version that it was enjoined upon the respondent/plaintiff Abdul Qayyum to include the whole of his claim for which the plaintiff was entitled to make in respect of the cause of action. The respondent/plaintiff did not claim the remedy for possession of the house in his first suit, so the respondent was debarred to file a separate suit for possession of the house. Order II, Rule 2 of Civil Procedure Code has been referred by the learned counsel for the appellant.
6. The sole point to be resolved is whether the second suit for possession of the house was hit by the said provision of law. It would be useful to reproduce Order II, Rule 2 of C.P.C. Which is as under:- -- "2. Suit to include the whole claim.-- (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the 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.
Relinquishment of part of claim.-- (2) Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.
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.
' 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."
' The above-mentioned provision of law postulates that every suit shall include the whole of the claim for which the plaintiff is entitled to make in respect of his cause of action. There are three conditions which must be fulfilled to attract the said provision of law, firstly, that the previous and the present suit must have arisen out of the same cause of action; secondly, both the suits must be between the same parties or their representative; and thirdly, that the previous suit must have been decided on merit.
7. As far the matter in hand is concerned, the appellant Muhammad Rafique and two other brothers of the respondent Muhammad Siddique and Muhammad Hanif agreed to sell the portions of the house to the extent of their shares to the respondent/plaintiff. Two brothers of the respondent Muhammad Siddique and Muhammad Hanif vacated the house after revealing the earnest money from the respondent. The present appeliant/defendant also received the earnest money from the respondent/plaintiff, but neither received the remaining price money from the respondent nor executed the sale-deed in favour of the respondent. The respondent/plaintiff, then filed a suit for specific performance against the present appellant through which a decree was issued in favour of the respondent. In compliance of the said decree, the present respondent deposited the remaining price money in the Court and, ultimately the portion occupied by the present appellant was transferred in the name of the present respondent solely. Thereafter, the present respondent/plaintiff Abdul Qayyum filed a second suit for possession of the said portion of the house stating therein that the present appellant/defendant has refused to handover possession of the said portion to the respondent/plaintiff. It is an admitted fact that the respondent/plaintiff did not include the claim for possession of the house in his first suit. The respondent took this version that he was not sole owner of the said portion of the house and no right being sole owner was accrued at the time of filing the first suit. He was a joint owner in the house and did not claim possession of the house at the time of filing the first suit. After issuance of a decree for specific performance, the respondent/plaintiff became sale owner of the said portion of the house and the present appellant had no right to retain possession after the said decree and transfer of his share in the name of the respondent. When the present appellant refused to handover possession of the said portion of the house, a new cause of action arose and the second suit was filed based on the new cause of action.
8. It is a settled principle of law that if any cause of action flows from the conveyance obtained in pursuance of the decree in the first suit, it will not be barred by Order II, Rule 02 of C.P.C. As the cause of action for the second suit would be quite different. This principle has been laid down in the precedent PLD 1963 Kar. 969 as under:- "Where a person sues another for specific performance of an agreement to sell and subsequently on the basis of same agreement sues for possession, the second suit would be barred by Order II, Rule 2, C.P.C. But if the subsequent suit is based on cause of action flowing from the conveyance obtained in pursuance of the decree in the first suit, it will not be barred by this rule as the cause of action for this second suit would be quite different."
' Having in view the above-mentioned principle, it is evident from the record that the present respondent filed a suit for specific performance regarding an agreement to sell and a decree was issued in his favour. A right to be the sole owner of the said portion of the house accrued to the present respondent after issuance of the decree in his first suit and a new cause of action arose in pursuance of the decree in the first suit. So, the respondent/plaintiff Abdul Qayyum was not barred by Order II, Rule 02 of C.P.C. As a different cause of action for his second suit was available on the basis of the said decree in the first suit. The above-mentioned principle has also been reiterated in the other precedents referred by the learned counsel for the respondent. The facts of the precedents referred by the learned counsel for the appellant have no conformity with the facts of the present case.
' In the light of what has been discussed above, the instant appeal fails and stands dismissed with no order as to the costs. Second .