LAL JAN KHA TTAK, J.---This civil revision petition is directed against the judgment and decree dated 16.03.2019 of the learned Additional District Judge-XI II, Peshawar , whereby the petitioner's appeal against the order/ judgment and decree dated 26.05.2016 of the learned Civil Judge-XV , Peshawar has been dismissed.
2. Brief facts of the case are that the petitioner filed a suit against the respondents for a decree declaring her entitled to inherent the legacy of her late mother Mst. Saeeda Begum to the extent of her sharai share therein. The respondents, on appearance, moved an application for rejection of the plaint on the ground of its being hit by the provisions of Order II, Rule 2, C.P.C. Ibid application was allowed by the learned trial court on 26.05.2016 with which the learned appellate court has concurred, hence the instant revision petition.
3. Arguments heard and appended record gone through.
4. Perusal of the case record would show that though the earlier suit filed by the petitioner was dismissed for non- prosecution on 28.04.2007 which order is still in the field and as per Order IX, Rule 9, C.P.C., no fresh suit is maintainable but pertinent aspect of the case is that the cause of action in the earlier suit was qua the gift deed dated 06.11.1999 whereunder mother of the petitioner had lifted only 1/3 of her share in the suit property for a religious purpose and the remaining 2/3 shares were retained by her. It is the petitioner's case that on the death of her mother in the year, 2007, she has become entitled to inherit tom her legacy qua the remaining 2/3 shares in the suit house. When seen in the context of the above, it would appear that on no count the provisions of Order IX, Rule 9, C.P.C. are applicable to the petitioner's case and as such her plaint has wrongly been rejected under Order VII, Rule 11, C.P.C. by the learned trial court because the cause of action to sue the respondents for her rights in the 2/3 shares in the legacy of her mother was not accrued to her at the time when her earlier suit was filed and dismissed for non-prosecution. As per Order II, Rule 2, C.P.C., a person is debarred to file a subsequent suit in respect of any claim which at the time of filing of the earlier suit was available to him and for which he had not asked for which is not the case in hand as at the time of institution of the earlier suit the cause of action qua the 2/3 shares in the legacy of late mother of the petitioner was not available to her and in such a situation the plaint was not hit under Order VII, Rule 1 1, C.P .C.
5. For what has been discussed above, this revision petition is allowed, the impugned judgments and decrees are set aside and the case is remanded back to the learned trial court which shall decide it in accordance with law qua the petitioner's rights in the legacy of her mother .