SAAD SAOOD JAN, J.--This appeal by special leave arises in the following circumstances. One Sultan Muhammad owned immovable property in Faisalabad and Bahawalpur Districts. He died on 28-9-1957. On his death the property left by him was mutated in favour of his widow, Mst. Hajran Bibi and his minor son, Muhammad Arshad, both being respondents in this appeal. On 21-5-1962 the appellants who were brothers and sisters of Sultan Muhammad filed a suit at Faisalabad for a declaration to the effect that Muhammad Arshad was not the son of Sultan Muhammad and as such he was not the latter's heir; consequently, they were entitled to 3/4th share in the property left by Sultan Muhammad. The suit was resisted by the respondents. Apart from other averments they challenged its maintainability on the ground that an earlier suit filed by the appellants at Bahawalpur on 2-4-1962 for a similar declaration and on the same cause of action had already been dismissed in default under rule 8 of Order IX of the Code of Civil Procedure; as such the present suit was barred by rule 9 of the same Order. The appellants denied that they had filed any suit at Bahawalpur.
2. The trial Court framed a preliminary issue to the effect whether the former suit of the appellants had been dismissed, and if so. What was its effect. Both parties led evidence in support of their respective assertions. By an order, dated 30-5-1966, the learned trial Court held that the respondents had failed to prove that the appellants had filed any suit at Bahawalpur. Accordingly, it rejected the objection with regard to the maintainability of the suit. The respondents challenged the order of the trial Court in revision before the High Court. The learned Single Judge who heard the revision petition came to the conclusion that the appellants had in fact filed a suit at Bahawalpur, which was allowed to be dismissed in default. On the basis of this finding he, held, that the second suit at Faisalabad was barred by the provision of rule 9 of Order IX, ibid. Consequently.
Dismissed the suit of the appellants. In this appeal the legality of the order of the learned Single Judge has been called in question.
3. It is contended on behalf of the appellants that in the exercise of the revisional jurisdiction the High Court was not competent to interfere with the finding of the trial Court that they had not filed any suit at Bahawalpur. It is true that ordinarily a finding on a question of fact which has been recorded after considering all the material evidence cannot be reopened by the High Court in revisional jurisdiction, but in this case the learned trial Court overlooked certain facts which had an important bearing on the question before, it and thus it committed a material irregularity in the exercise of its jurisdiction; the learned Single Judge in the High Court was, therefore, justified in interfering with its finding. There is little doubt that a suit was in fact filed at Bahawalpur for a declaration of the nature sought in the suit at Faisalabad. Although the appellants denied that the suit was instituted by them, but then, apart from them, no one else could have possibly any interest in lodging a suit of that nature. Mr. Mumtaz Hussain had filed a Vakalatnama on their behalf in the suit filed at Bahawalpur. Even though they cited him as their witness, but failed to examine him although he was served. In support of the stand taken by them they relied upon the report of a finger print expert, but then as pointed out by the learned Single Judge, the specimen thumb- impression of the appellants were obtained by the trial Court in the absence of and without notice to the respondents. Apart from that, the opinion of the expert had little probative value in view of the factthat except for one, all the thumb-impressions on the plaint and Vakalatanama sent to him for comparison had either been superimposed or were too blurred to allow any opinion to be formed. In fact the respondents moved an application before the trial Court pointing out that there were other documents available on the file of the suit which bore untampered thumb-impressions of the appellants and that those should be referred to the expert for comparison but the learned trial Court turned down their prayer in this regard without any sufficient reason. In the circumstances we are satisfied that the learned Single Judge rightly interfered with the finding of the trial Court and held that the suit at Bahawalpur was in fact brought by the appellants.
4. It is then contended on behalf of the appellants that before the suit at Bahawalpur was dismissed the suit at Faisalabad had already been instituted; that being so, rule 9 of Order IX was not in terms applicable as this rule only prevented a plaintiff from instituting a fresh suit but had no effect on a suit which had already been filed. The contention in so far as the construction of rule 9 is concerned is correct but that does not mean that the second suit is not barred and can be tried on merit. There is well established principle that no one is to be twice vexed for the same cause of action. Reference in this context is invited to a Division Bench Judgment of the Lahore High Court in Amir Din Shahab Din v. Shiv Dev Singh AIR 1947 Lah. 102 where the maintainability of the second suit brought before the dismissal in default of the first suit was considered and it was held that the second suit was hit by the above-mentioned principle and it was also liable to be dismissed on the ground that its institution and trial amounted to the abuse of the process of the Court.
5. It was then argued by the learned counsel that the causes of action in the two suits were different as the suit filed at Bahawalpur was in respect of the property situate in Bahawalpur alone whereas the suit instituted at Faisalabad covered properties both at Bahawalpur and Faisalabad; consequently, the dismissal of the first suit could not have any effect on the second suit. This contention is again without any merit. The causes of action in the two suits were precisely the same, that is, the wrongful allocation of a share in the property left by Sultan Muhammad to respondent No. 2. The mere fact that in the first suit the appellants did not seek relief in respect of the property at Faisalabad would not make the cause of action in the second suit a different one. In fact by not seeking any relief in respect of the property situate in Faisalabad in the suit filed at Bahawalpur the appellants would be taken to have given up their claim to the said property, and the second suit would be hit by the bar contained in rule 2(2) of Order II of the Code of Civil Procedure.
6.For the reasons stated above this appeal is without any merit and is dismissed with costs.