' ROOH UL AMIN KHAN, J.--- Through the instant Revision Petition, the petitioners have sought annulment of the judgment and decree dated 12.7.2012, rendered by the learned Additional District Judge-V, Peshawar in Civil Appeal No, 63/13, whereby the appeal filed by the petitioners against the partial judgment and decree dated 23.11.2011 of learned Civil Judge-X, Peshawar, was dismissed.
2. The relevant and necessary facts for disposal of the instant petition are that prior to the institution of the instant suit, the respondents had filed a suit for grant of decree of specific performance of agreement to sell deed executed between the plaintiffs and defendants (petitioners), in respect of a plot measuring 14 Marlas situated in Moza Nodeh Payan, Peshawar allegedly being purchased by the plaintiffs through an agreement to sell deed dated 10.11.2006. In the suit plaintiff had also sought direction to the defendants for entering mutation and transferring the suit property through registered deed in favour of the plaintiffs. The suit was contested by the present petitioners which was ultimately dismissed by the trial court vide judgment and decree dated 22.10.2007, against which appeal was filed before the learned District Judge, Peshawar, which too met the same fate and was dismissed vide judgment and decree dated 6.7.2009.
Alongwith the appeal, the present respondents had filed an application for amendment of the plaint to the extent of seeking additional relief for recovery of certain amount. The learned Trial Court while dismissing the application allowed the respondents to file a fresh suit for recovery of the amount instead of remanding the case to trial court for amendment in the pleading.
3. Consequently, the petitioner filed suit for recovery of amount etc which was contested by respondents by raising factual as well legal objections. The learned trial court after recording pro and contra evidence and hearing the parties, partially decreed the suit in favour of the plaintiff/respondents vide judgment and decree dated 23.11.2011 which was assailed in appeal before the learned District Judge, Peshawar. The Appellate Court after hearing the respective arguments of the parties, concurred with the Trial Court and dismissed the appeal vide order dated 12.7.2012. Hence this petition.
4. Learned counsel for petitioner addressed the court on the sole issue of non-maintainability of the suit on the ground that the instant suit is hit by principle of constructive Res Judicata because the cause of action in the earlier suit filed by the respondents against the plaintiff for specific performance of agreement and in the present suit for recovery of amount, wherein the relief claimed in the instant suit had been omitted and relinquished which cannot be agitated in the instant suit. The suit of plaintiff is hit by principle enumerated in Order-II, Rule 2, C.P.C.
5. Having heard the learned counsel for the parties, perusal of record would reveal that prior to the instant suit, the respondents had filed a suit for specific performance of an agreement deed dated 10.11.2006, with averments that the petitioner No,1 being husband of petitioner No,2 had entered into an agreement to sell with respondents regarding a plot for sale consideration of Rs, two lacs which was paid to him, who agreed to transfer the plot on behalf of petitioner No,2, in favour of the respondents, but later on resiled from the agreement thus the abovementioned suit was filed which was ultimately dismissed vide judgment and decree dated 22.10.2007. The abovementioned judgment and decree was challenged before the Appellate Court. During pendency of appeal the respondents filed an application for seeking amendment in the plaint to the extent of return/recovery of paid sale consideration in lieu of plot. The appeal filed by respondents was dismissed vide judgment and decree dated 6.7.2009. However, while deciding the application for amendment of the plaint, the Appellate Court made the following observation:- "The appellant plaintiffs also filed an application for including the recovery of the said amount as a consequential relief.
' No doubt it is a right of the appellant plaintiffs to demand the said amount as a consequential relief but keeping in view the peculiar circumstances of the instant case this Court is of the opinion that remanding the instant suit which is for adding a ground of consequential relief would further delay the outcome of the instant suit which is pending adjudication since long.
'Any as far as application of the Appellant plaintiffs of adding consequential relief for recovery of amount is concerned it I observed that the appellant plaintiffs are permitted to file a fresh suit for recovery of the said amount if so advised." (underline is mine for emphasis.)
6. Bare reading of the above quoted para would reveal that the appellate court has allowed the plaintiff/respondents to file a fresh suit for recovery of amount. It is also an admitted position that the observation/finding of the Appellate Court had remained unchallenged by either party, thus has attained finality. From the above, it is manifest that the respondents have instituted the instant suit with leave of the court, thus it does not fall in the barring clause of Order-II, Rule 2, Civil Procedure Code.
7. The necessary discussion regarding maintainability of the suit may be initiated and explained in better way by extracting the provision of Order-II, Rule-2 of C.P.C.
"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 suit in respect of the portion so omitted or relinquished.
' Omission to suit 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 purpose 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."
8. From the plain reading of the above quoted Rules, it may be spelled out that Order-II, Rule 2(1) requires every suit to include the whole of the claim to which the plaintiff is entitled in respect of any particular cause of action. However, Rule-1 provides an option to the plaintiff to relinquish any part of claim if he chooses to do so for the purpose of bringing his suit within jurisdiction of any court. Order-II, Rule-2 contemplates the situation where a plaintiff omits to sue or intentionally relinquish any portion of the claim which he is entitled to make. If the plaintiff so acts, Order-II, Rule- 2 of C.P.C. Makes it abundantly clear that he shall not, afterwards, sue for the omitted or relinquished part or portion of the claim. It must be noticed that Order-II, Rule-2(2) does not contemplate omission or relinquishment of any claim of the plaintiffs with the leave of the court so as to entitle him to come back later to seek what has been omitted or relinquished. The provision of leave of the court is enumerated by Order-II, Rule-2(3) in such a situation where the plaintiff being entitled to more than one relief on a particular cause of action, omits to sue for all such relief. In such a situation, the plaintiff is precluded from bringing subsequent suit to claim the relief earlier omitted, except in situation where leave of the court had been obtained. It is, therefore, manifest from conjoint reading of provision of Order-II, Rule-2 (2) and (3) of the C.P.C. That the aforesaid two sub rules of Order-II, Rule-2 contemplate two different situations namely:- ' Firstly: Where a plaintiff omits or relinquishes a part of claim which he is entitled to make; ' Secondly: Where the plaintiff omits or relinquishes one out of several reliefs that he could have claimed in the suit.
' In the latter situation the plaintiff has been held entitled to file subsequent suit for seeking relief omitted in the earlier suit, provided he obtained leave of the court in the previous suit.
9. The objects behind the enactment of Order-II, Rule 2 (2) and (3) of the C.P.C. Is not far to seek.
The rules (ibid) engrafted the laudable principle that discourages and prohibit vexing the defendant again and again by multiple suits except in a situation where one of the several reliefs though available to the plaintiff may not have been claimed for a good reason. The latter suit for such relief may be considered only with the permission of the court which naturally will be granted upon due satisfaction and for good and sufficient reason.
10. The essence of the above discussion clearly makes visible distinction between the claim and relief. Undoubtedly, the claim once omitted or relinquished cannot be made subject matter of subsequent suit E on the same cause of action but in case the relief is omitted the plaintiff could not be precluded from, afterward, suing for any relief so omitted unless the court allowed and if the court granted leave to remove the deficiency then the bar will not apply.
11. The instant case relates to the recovery of the amount paid to the petitioner by the respondents as sale consideration in pursuance of an agreement to sell deed dated 10.11.2006. Though the earlier suit for specific performance of agreement was dismissed by the trial court followed by same consequence in appeal filed before the Additional District Judge-V, Peshawar, but simultaneously by accepting the application of the respondent/plaintiffs, they were granted leave to file a fresh suit for recovery of the paid sale consideration. Needless to mention that the appeal was in continuation of the suit wherein leave was granted to the plaintiffs to file a fresh suit which has remained unchallenged by either party before the higher forum thus has attained finality.
Eventually the instant suit being filed with leave of the court attract the exception clause of Order-II, Rule-2 (3), C.P.C. Since in the instant case, the leave to sue for the relief of recovery at appellate stage has claimed by the plaintiff through application dated 17.5.2008, admittedly, such leave was granted by the court, thus the instant suit is not hit by the principle of constructive Res Judicata nor the suit of the plaintiffs comes under the fold of principle laid down by Order-II, Rule-2, C.P.C.
12. The learned counsel for petitioners argued the Civil Revision on the sole ground of maintainability without touching the concurrent finding of two courts below on question of fact, therefore, in view of the nub of the above discussion, this revision petition is dismissed.