MUHAMMAD NAEEM ANWAR, J. Bakht Bahadur and his two brothers have filed this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, against the judgement & order of learned Additional District judge/Izafi Zila Qazi, Dir Lower at Chakdara dated 18.06.2021, whereby civil revision filed by respondent against judgment/order of the learned Civil Judge/Illaqa Qazi, Chakdara dated 02.03.2021 was allowed consequently, on acceptance of application filed under order VII rule 11 of the Code of Civil Procedure, 1908 (C.P.C), the plaint of suit filed by petitioners was rejected under Order II rule 2 C.P.C.
2. Requisite facts for resolution of controversy are that the petitioners filed a suit for recovery of Rs.
6,00,000/- against respondent, which were allegedly transferred to him by their father in presence of Sher Bahadur Khan and Akhtar Ali in June 2019 and were still outstanding against him. It was also alleged that after the death of their mother, their father, Basheer Ullah, had contracted second marriage with Mst. Safiya the sister of respondent, who had developed relations with their father and instigated him to sell out his properties whereas, the sale proceed thereof was used to be kept by respondent, which too was outstanding against him and after the death of their father, they have earlier filed a suit for recovery of Rs. 25,80,000/-to the extent of their shares in the sale proceed of properties. The second suit was resisted by the respondent by filing of written statement on various legal and factual objections. Along with written statement, he has filed an application under order VII rule 11 C.P.C by contending therein that their earlier suit was dismissed by the trial Court and against said judgment a revision petition is pending before High Court. It was also alleged that the step-mother of petitioners was ousted by the petitioners and she has filed a suit for her share in the legacy of her husband, which is pending adjudicating before civil Court. He also alleged that neither there is any deed nor they have got any evidence for alleged payment by the father of petitioners, hence, no cause of action was accrued in favour of plaintiffs, but the suit was filed to compel their step mother for withdrawal of her suit, as such, the suit, being hit by order VII rule 11 C.P.C, is liable to be rejected. The application was contested by the petitioners and the learned trial Court dismissed the application, but the revision of respondent was allowed by the learned revisional Court and the paint was rejected, hence, this petition.
3. Argument heard and record perused.
4. Civil Miscellaneous No.119-M/2023.
After filing of this petition, petitioner No.2 has passed away, as such, the petitioners filed this application for placing on file the list of his legal heirs. As this application is supported by duly sworn affidavit and was not resisted by respondent, hence it stands allowed. Office is directed to make requisite entries in the memo of petition and relevant record as well.
5. Civil Miscellaneous No. 2025-M of 2021.
Through this application, the petitioners prayed that inadvertently they could not implead learned Civil Judge and learned Additional District Judge in the array of respondents. He submitted that they may be impleaded in the panel of respondents. Being procedural requirement, the application is allowed, office shall make necessary changes in the memo of petition as well as in other relevant record.
6. C.M No. 1623-M of 2021.
This application was moved by petitioners for placing on file copy of paint of earlier suit, affidavits of the special attorney for plaintiffs and the witness of their earlier suit, application under order VII rule 11 C.P.C, its reply, order dated 25.07.2020, decree sheet, memorandum of appeal, order of learned Additional District Judge, Chakdara dated 19.10.2020 and the copy of C.R No. 334-M of 2020.
As the documents annexed with the application are not only the part of judicial record but are also necessary for the decision of this petition, therefore, this application is allowed. The documents annexed with application shall be deemed and read as part and parcel of this petition.
7. Arguments of the learned counsel for the parties heard and record perused.
8. One of the grounds of the application of the respondent was the lack of cause of action of the plaintiffs for filing of the suit. Lack of cause of action or non-accrual of cause of action is different from non-disclosure of cause of action. Non-accrual or lack of cause of action can only be determined after recording of evidence and the consequence of non-accrual of cause of action is the dismissal of suit whereas, the term non-disclosure of cause of action results in rejection of plaint. Both the phenomenon are distinct as the former is determined after recording of evidence and the later from the contents of plaint. When learned counsel for respondent was questioned about the provision of order VII rule 11 C.P.C, he contended that he would confines himself to the extent of clause (d) of order VII rule 11 qua section 11 of CPC. Insofar as the applicability of section 11 C.P.C i.e., res-judicata is concerned, undisputedly, the earlier suit was not decided on merits, rather the plaint was rejected by invoking order VII rule 11 C.P.C therefore, the suit of the plaintiffs/petitioners does not hit by the principle of res-judicata. Section 11 of C.P.C, postulates and prohibits a Court from trying any suit or issue, in which, the matter directly and substantially in issue in a former suit between the same parties or between the parties under whom they or any of them claims and litigating under the same title in a Court of competent jurisdiction to try such subsequent suit or the suit, in which, such issue has been subsequently raised, it has been heard and finally decided by the competent Court. The logic behind constructive res judicata is that if the parties have had the opportunity of asserting all grounds in support of their claim or defence in a former suit and have not done so, they shall be deemed to have raised such grounds in former suit and it shall be further deemed that these grounds have been heard and decided as if these matters had been actually in issue. Such party shall be precluded from raising these grounds in a subsequent suit. Because the term "Res judicata signifies, that the matter in dispute has been considered and finally settled, and that the adjudication has a conclusive effect, upon the rights determined". As defined by Spencer Sower: Res judicata means final judicial decision pronounced by a judicial tribunal having competent jurisdiction over the cause or matter in litigation and over the parties thereto". According to condition IV of section 11 of C.P.C, such matter in issue in a subsequent suit must have been heard and finally decided by the Court in the first suit. The term 'res judicata' indicates that the matter has already been adjudicated upon in a former suit. A matter will be res judicata only if it has been heard and finally decided. There must be final decision of the matter. It is not sufficient for the applicability of this doctrine that the matter was directly and substantially in issue. It is of the very essence that such matter was heard and finally decided. A matter cannot be said to have been heard and finally decided unless it was decided after recording of evidence.
9. Next objection of the respondent was that the suit of the plaintiffs was barred by law, for which, he further added that the earlier suit of the plaintiffs was dismissed and the plaintiffs have omitted this relief in their earlier suit, as such, the suit being in contravention to Order II rule 2 C.P.C therefore, it was rightly rejected. Since, the question pertains to the applicability of Order II rule 2 C.P.C, which reads as: "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 afterwards sue for any relief so omitted."
A look at the above reproduced order manifests 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. More-so, there are three conditions, which must be fulfilled for invoking the provision of Order II Rule 2 C.P.C, that:
(1) 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) 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. Admittedly, the plaint of earlier suit was rejected by the learned trial Court and said order was reversed by the appellate Court, however, the revision petition was allowed by this Court and order of the learned trial Court rejecting the plaint was restored. The cause of action of the earlier suit was that certain properties of the father of plaintiffs were sold and the sale consideration thereof were kept himself by the defendant (respondent) as such, they are entitled for their respective shares in the sale consideration whereas, the cause of action of the latter suit was that their father in his lifetime handed over Rs. 6,00,000/-as qarz-e-hasana to the respondent in the year 2019 in presence of witnesses and the said amount is still outstanding against Min.
Contents of the plaint of both the suit clearly reflect that cause of action of both the suits were neither same nor have any nexus with each other, rather were dissimilar, distinct, unlike. 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 complained 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 the Privy Council in Muhammad Khalil Khan and others v. Mahbub Ali Mian and others (PLD 1948 PC 131) "the bar under Order II, rule 2 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 a conclusion in his favour". A rough test although not a conclusive one is to see whether the same evidence will sustain both suits, which would be the case if both the suits are founded on continuous and inseparable incidents in the same transaction. The question, however, is to be examined in substance and not merely on from as the cause of action in the two suits may be found to be the same, in spite of the facts alleged not being exactly identical in the two cases. It is not open to the plaintiff to split up the parts really constituting the same cause of action and file different suits in respect of them. In other words, a plaintiff must ask for all his reliefs which flow from the grievances caused to him by the infringement of his rights by the defendant in the course of the same transaction, but he cannot and is under no obligation to add .to his grievances which did not occur in that transaction."
Reliance may be placed on the case of "Puran Chand v. Har Prashad" (AIR 1935 Lah 672).
10. The case law relied upon by the respondent i.e, "Irfan Ullah Khan Vs. Province of Punjab and others" (2020 CLC 594, Lahore) pertains to splitting of claims whereas, in the case before this Court both the suits were based on distinct cause of action, thus, the principle laid down in the case does not apply to the instant matter. Secondly, the case of "Mst. Zulekha through legal heirs Vs. Ali Muhammad and others" (2022 MLD 1335) is regarding the relinquishment of part claim but before this Court both the cases of petitioners were based upon different causes of action therefore, in the earlier suit, which was rejected by invoking the provisions of order VII rule 11 C.P.C, nothing arising out of that cause of action or claim was omitted or relinquished.
11. For the reasons discussed above, I am of the view that learned revisional Court has committed an illegality be setting aside the order of learned trial Court, therefore, it is held that: i) the cause of action of both the suits were distinct from one another; ii) neither the provisions of order II rule 2, nor that of order VII rule 11 C.P.C could be applicable to the case in hand; and iii) the doctrine of res-judicata does not apply to the case of petitioners.
Consequently, the judgment and order of learned revisional Court is hereby set aside and that of learned trial Court is restored.