MUHAMMAD NAEEM ANWAR, J. Instant petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 has been directed against the order of the learned District Judge/ Zila Qazi, Buner at Daggar dated 30.09.2022, whereby their civil revision against order of the learned Civil Judge/Illaqa Qazi-I, Buner at Daggar in Civil Suit No.158/1 of 2014 dated 17.06.2015 dismissing their application under Order VII Rule 11 read with Order II Rule 2 C.P.C, was dismissed.
2. Brief facts of the case are that respondent No.1/plaintiff filed a suit bearing No.158/1 of 2014 for specific performance of agreement and declaration etc. in respect of the property bearing Khasra No.2639 measuring 01-kanal 10-marla of the revenue estate of Krapa Tehsil Daggar, District Buner described in headnote "alif' of the plaint. On being summoned, the petitioners/ defendants contested by the suit through their written statement on several legal and factual objections. They have also submitted an application under Order VII Rule 11 read with Order II Rule 2 C.P.C for rejection of plaint, which was duly replied by the respondent/ plaintiff. After hearing the parties, the learned trial Court dismissed the application of the petitioners through order dated 17.06.2015, where-against their revision was also dismissed by the learned Revisional Court through order dated 30.09.2022, hence, this petition.
3. Arguments heard and record perused.
4. Learned counsel for petitioners intended to make out a case on the ground that mutation No.2441 dated 13.07.2012 was attested from Iqbal Khan and Riaz Ahmad (petitioners No.2 & 3) in favour of Zarjamil (petitioner No.1) in respect of the property bearing Khasra No.2639 of the revenue estate of krapa Tehsil Daggar was assailed by respondent No.1 through his suit No.141/1 for recovery of possession through pre-emption instituted on 13.08.2012 and after recording of evidence, he was non-suited by the learned trial Court vide Judgment and decree dated 21.12.2013, which was maintained by the learned Appellate Court when his Civil Appeal No.7/13 was dismissed on 11.02.2015 and lastly, affirmed by this Court when his C.R No.91-M/2015 titled "Zafar Sani Vs. Zarjamil" was dismissed on 26.05.2022. He added that when the mutation remained the subject matter of the Civil Suit No.141/1 then it could not be challenged through the fresh suit as this relief was available to respondent/plaintiffs even at the time of filing of earlier suit No.141/1. The contention of the petitioners is of two-fold; firstly, that plaint of fresh suit of the respondents requires rejection on the ground of non-disclosure of cause of action however, this plea is repelled form the contents of plaint which do disclose cause of action. The suit is for specific performance of agreement dated 06.07.2012 for which the suit, was filed on 23.05.2014 i.e., well within time which fact shall be resolved after recording of evidence. Needless to say, that cause of action may not have been accrued but this could only be decided after complete trial thus, the provision under VII Rule 11 C.P.C could not be invoked. Secondly, whether in the circumstances especially, when Civil Suit No.141/1 being based upon mutation No. 2441 has been dismissed and the findings were maintained by this Court. In such an eventuality, the contents of the plaint are of much significance, which manifest; in prayer, suit for specific performance of agreement dated 06.07.2012 of the property measuring 01-kanal .and 05-marla of the revenue estate of Krapa on alleged payment of Rs.5,000,000/- with relief for perpetual injunction. The suit was filed on 23.05.2014 whereas, suit No.141/1 was filed on 03.09.2012 and was decided on 21.12.2013 but appeal there- against being continuation of the suit, was decided on 11.02.2015 then at the time of institution of the fresh suit, the earlier one was pending in appeal therefor, in such circumstances the provision of order II rule 2 could not be invoked.
5. The most crucial aspect of the fresh suit is the cause of action as reflected from headnote alif of the plaint, which is based upon agreement dated 06.07.2017 whereas, the cause of action of suit No.141/1 was the attestation of mutation No.2441 dated 13.07.2012. Order II Rule 2 C.P.C is in respect of relinquishment of part of the claim, which reads as under: "Order II Rule 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.
(2). Relinquishment of part of claim. - 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.
(3) Omission to sue for one of several reliefs. - 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 afterwarth sue for any relief so omitted."
Thus, a look at the above reproduced Rule 2 of Order II C.P.C makes it abundantly clear that for attracting the provisions of Order II Rule 2 C.P.C, both the suits must be in respect of the same cause of action, which is not the case before this Court because the cause of action of both the suits are different. Insofar as the prayer for declaring mutation No.2441 dated 13.07.2012 as against the law and inoperative upon his right is concerned, which apparently seems to be inconsistent with his earlier suit but even then, the respondent No.1/ plaintiff could not be non-suited. The Hon'ble Supreme Court of Pakistan in the case of "Abdul Hakim and 02 others vs. Saadullah Khan and 02 others" (PLD 1970 SC 63) has held that: "The expression "cause of action" in Order II, rule 2, C.P.C means the cause of action for which a suit is brought. In order that the cause of action for the two suits may be the same, it is necessary not only that the facts which would entitle the plaintiff to the right claimed must be the same but also that the infringement of his right at the hands of the defendants' complainer against in the two suits, must have arisen in substance out of the same transaction. In considering the application of this bar, regard is to be had to the allegations in the two suits without reference to the defence that may be set up by the defendants as laid down by their lordships of privy council in the case of Muhammad Khalil Khan and others v. Mahboob Ali Mian and others (1), the bar under Order II Rule 2 C.P.C refers entirely to the grounds set out in the plaint as the cause of action or in other words, to the media upon which the plaintiff asks the Court to arrive at the conclusion in his favour."
From the above principle enunciated by the apex Court, it can safely be deduced that there are three conditions, which must be fulfilled for invoking the provision of Order II Rule 2 C.P.C:
(i) that the previous suit and the present suit must have arisen out of same cause of action;
(ii) both the suits must be between same parties or their representative; and
(iii) that previous suit must have been decided on merits.
The co-existence of all the above three ingredients is sine qua non for invoking the provision of Order II Rule 2 C.P.C and this aspect of the matter shall be dealt with by the learned trial Court, with reference to merits of the case because the cause of action of both the suits is not one and the same, as reflected from contents of the plaints of both the suits.
6. Learned counsel for the petitioners has not been able to point out any illegality or irregularity, misreading or non-reading of the record requiring interpretation of law being based upon the decision of the earlier suit and contents of the plaint in juxtaposition with Order II Rule 2 C.P.C, thus, no case for interference could be made out by the petitioners for interference in the impugned orders through instant constitutional petition. Hence, this petition, being devoid of any force, stands dismissed in limine.