SHAFIUR RAHMAN, J.---Leave to appeal was granted to one of the plaintiffs to examine whether his third suit (No,479/1 of 1971) instituted on 27-7-1971 was barred by Order II Rule 2 of the Code of Civil Procedure, as held by the Lahore High Court vide its impugned judgment dated 6-11-1983 affirming the judgment of the Additional District Judge dated 5-5-1983.
2. The factual background of this appeal as disclosed by the appellant is that the parties to this litigation were transferred two portions of property S.II.4.S. I and 3 situated in Kucha Lakshmi Narain, Anarkali, Lahore. An intervening lane separated the two portions. The respondents wanted to make addition and alterations to the portion transferred to them and also to construct a staircase in portion of the lane. When the respondents submitted their plan to the Lahore Municipal Corporation for approval, it was rejected on 23-11-1966 as it involved encroachment on the street.
The respondents again submitted an application to the same effect and got the plan sanctioned on 4-1-1969. The only factor which had intervened during this period was an agreement executed on 6-8-1967 between the parties whereunder the appellant on his part permitted the respondent to construct staircase on the common path, keeping the width three feet and the height upto the first storey. The respondent also permitted the appellant, under this agreement, to open out windows and ventilators and to repair the property. The appellant also submitted a plan for the reconstruction and repair and for some alterations in the portion transferred to him. By an order dated 11-1-1969, the permission was denied to the appellant to make such alterations and repairs.
In this background, he instituted a civil suit (No,90/1 of 1969) on 19th of March, 1969. In the first place he challenged the agreement entered into by him with the respondents on 6-8-1967, on the ground that it involved a violation of Municipal Law and was opposed to the public policy. Another declaration sought by him was that the refusal by the Lahore Municipal Corporation of the sanction to his plan was illegal. He also attacked the sanction granted to the plan of the respondents. On these facts, the appellant sought the following relief in the first suit:- "....That the sanction of the plan of the defendants is ultra vires, illegal, ineffective and inoperative, and the rejection of the plan of the plaintiff has been invalid and illegal, ultra vires and arbitrary; and that in consequence thereof the staircase set up by the defendants 1 and 2 in the bye-lane be demolished at once as a contravention of the L.M.C. Bye-laws and street reservations and the ventilations and doors and the construction of the second storey proposed by the plaintiffs in their wall and on their first storey bordering the bye-lane be allowed to be constructed uninterrupted as their unimpeachable right of easement."
3. While the suit was pending, on the 9th of May, 1969, the Municipal Engineer, passed the following order on the plan submitted by the respondent for making alterations etc.:- "Abdul Latif Khan Anarkali, Lahore. Deori is common passage for all.
' No addition or alteration in Deori can be allowed. If alteration is sanctioned this will result in dispute between the parties.
' Rejected."
4. On 26th of May, 1969, the Lahore Municipal Corporation granted the necessary sanction to reconstruction by respondent. This prompted the appellant to institute another suit (No,360/1 of 1969) on 22-7-1969 against the sanction granted by the Lahore Municipal Corporation on 26-5- 1969 in respect of which a declaration was sought to the following effect:- ... To declare invalid and illegal against the rules and bye-laws concerning building constructions, the sanctioned plan No,9275 passed by the Municipal Corporation, Lahore on 12-6-1969 and that as a consequence of it the defendants must restrain themselves from carrying on any building operations in pursuance of that sanctioned plan and also to remove all the steps they have already taken in this direction, involving the demolition of the had-wall."
5. While the first two suits were still pending, the appellant instituted the third suit (No,479/1 of 1971) on 27-7-1971 in which he challenged the legality of the compromise dated 6-8-1967 which he considered to be voidable at his option. He objected to the staircase raised on the private lane and to the walls raised in excess of the sanctioned plan in July, 1969. A mandatory injunction was, therefore, claimed to the following effect:- "ordering the defendants to remove walls A to B (with gate and A to C shown red in the plan attached and also to remove staircase shown blue in the plan attached, located in property designated by No,S-II-4-S-I situated in Kutcha Lakshmi Narain, New Anarkali, Lahore, and agreement dated 6-8-1967 be also declared void."
6. The first suit was allowed by the plaintiff to be dismissed under Order IX Rule 8 of the Code of Civil Procedure on 11-11-1972, and before that the second suit to be dismissed on 25-9-1971 under Order IX Rule 3 of the Code of Civil Procedure. The third suit proceeded to a decision on a number of issues which it is not necessary to reproduce. Issue No,6 in the case was "whether the suit is barred by res judicata?". The finding on this issue proved to be crucial and has been in contest upto this stage. The finding recorded by the trial Court on 20-6-1973 was as hereunder:- "The disputed staircase was constructed by the defendants on 6-8-1967, and the disputed walls were constructed in 1969, all to give cause of action to the plaintiffs. The different suits filed by the plaintiffs on these causes of actions as is admitted by the plaintiffs in para. 3 of their plaint in the present suit and as is amply proved by Exs.D1 and D4, having been dismissed vide Order IX, Rule 8, C.P.C. For non-prosecution by the plaintiffs so they arc debarred from bringing any fresh suit on the same cause of action vide Order IX, Rule 9, C.P.C.
' The learned trial Judge somehow after recording this finding observed that the issue is found in favour of the plaintiffs.
7. The matter was taken up in appeal. The Additional District Judge who dealt with the appeal, did not take note of the finding on issue No,6 at all and confined the examination of the case to first four preliminary issues which were all decided in favour of the plaintiffs/appellant. It proceeded to observe as hereunder:- "It is strange that while giving findings on preliminary issues in favour of the plaintiffs, the suit of the plaintiffs was thrown away without any rhyme or reason. It may be pointed out that the defendants have not filed any cross-objections. They therefore, shall be deemed to have admitted correctness of the findings of the trial Court. Learned trial Court has clearly erred in ordering dismissal of the suit. Proper course for the trial Court was to frame issues on merits and then to decide the case in accordance with law."
' He accepted the appeal and remanded the case for retrial on merits, by judgment dated 24-7- 1976.
8. The matter was taken up in Regular Second Appeal by the High Court which was treated as a revision and dealt with by observing as hereunder:- "On merits, a perusal of the judgment of the learned trial Court shows that the learned trial Court was of the opinion that the suit was barred by the doctrine of res judicata and he found the contention to the contrary devoid of force. But all the same, he found the issue in favour of the plaintiffs. There is apparent inconsistency. In the circumstances, it would be appropriate that the learned trial Court should re-hear the parties and decide issue No,6 afresh."
9. The matter again came up for decision before the trial Court on issue No,6 alone. A decision was given on 26-4-1982 in the following words:- "From a perusal of the documents referred, it appears that the plaintiffs have again come to the Court on the basis of those causes of action on which the defendants have twicely been sued. The causes of action are same. All stipulate removal of staircase. I find no new ground or facts which could have justified and excepted the plaintiffs from filing the present suit or escaping from the bar of Order IX, Rule 9. In view of this matter, the present suit cannot proceed and is not maintainable under Order IX, Rule 9. Consequently, this issue is decided against the plaintiffs and in favour of the defendants."
10. An appeal was preferred against this decision which was decided by the learned Additional District Judge on 5-5-1983 in terms as hereunder:- "I, therefore, find that under the provision of Order II, Rule 2 read with section 151, C.P.C. No plaintiff can be allowed to file a subsequent suit on the same cause of action even though plaintiff in the earlier suit join with him any more plaintiff simply to argue that the earlier suit is not between the same parties. In the present case cause of action was very much the same and a subsequent suit could not have been filed by the plaintiffs. In view of the above discussion I hold that although the suit was not barred by res judicata but it was otherwise barred under law as earlier mentioned."
11. A Civil Revision petition was preferred which was dismissed in limine by the impugned order of the High Court dated 6-11-1983, as hereunder:- "The petitioner could have amended his first suit. No fresh cause of action has arisen on account of the construction in pursuance of the sanctioned plan. The order of the learned lower appellate Court is well within its jurisdiction. No interference is called for in exercise of revisional jurisdiction.
The petition is, therefore, dismissed in limine."
12. Mr.Bashir Ahmad Ansari, Advocate, the learned counsel for the appellant has taken up the plea that the issue as contested and as finally decided, related to the bar of res judicata and res judicata alone. If the finding of all the Courts were that the suit was not barred by the principle of res judicata, then they should not have in view of the conclusive decision rendered by the High Court inter partes, proceeded further to examine whether it was barred under any other provision of the law. The issue should have been on that very finding decided in favour of the plaintiff that the suit was not barred by res judicata. The learned counsel has taken us through the facts of the case to contend that the second suit does not stand in the way as its dismissal was under Order IX, Rule 3, C.P.C. It is the first suit whose dismissal was under Order IX, Rule 8, C.P.C., which is in controversy.
In that case the refusal to sanction the plan of the appellant and sanction of the plan of the respondent was in contest. The sanction was removed from the scene by the Lahore Municipal Corporation itself by its order dated 9-5-1969 and the plaintiff was no longer pursuing his remedy with regard to the voidness of the agreement dated 6-8-1967. Therefore, according to the learned counsel, none of the causes of action on which the first suit was brought, was repeated in the second suit. What was contended in the second suit was that far more encroachment had been made than the subsequently sanctioned Plan itself allowed and this was a cause of action which on the finding of the High Court itself arose subsequent to the institution of the first suit. The learned High Court only observed that such subsequent events could have been incorporated in the first suit by seeking amendment of the plaint. There was, no compulsion to seek amendment of the plaint and to incorporate a new cause of action against the same defendant. The plaintiff was within his rights to institute a fresh suit, while the first suit on a different cause of action was pending, in respect of any subsequent cause of action arisen during the pendency of the first suit.
The learned counsel has relied on the decision of this Court in Aziz Ahmad and others v. Mst.Hajran Bibi and another 1987 SCMR 527.
13. Mr.S.Zamir Hussain, Advocate, the learned counsel for the respondent, has taken us through the facts of every action to contend that in fact the dispute related to the same cause of action, that the second and the third suit were instituted as expressed and admitted by the appellant himself, because ad interim reliefs had been refused to him. The cause of action was substantially the same. The relief sought was also not very different and according to the learned counsel, the Courts have taken a correct view of the law on the subject. The learned counsel has relied on Amir Din Shahab Din v. Shiv Dev Singh Jhanda Singh AIR 1947 Lahore 102, Abdul Hakim and 2 others v.
Saadullah Khan and 2 others PLD 1970 SC 63, Aziz Ahmad and others v. Mst.Hajran Bibi and another 1987 SCMR 527, Haji Muhammad Saifullah Khan v. The Federation of Pakistan and others 1989 SCMR 22 and M.K.Abbasi v. United Bank Ltd. 1983 CLC 482.
14. The learned counsel for the appellant in contending that the res judicata question having been decided in appellant's favour, there was nothing more to be decided ignores the nature of objection taken by the contesting defendant to his suit. It was resisted on the ground that the subject-matter of the suit was already under litigation in civil suit filed on 19-3-1969 which had not till then been disposed of and that it had become barred after its dismissal under Order IX, Rule 8, C.P.C., on 11-11-1972. It was in this context that one of the issues with regard to stay under section 10 of C.P.C. Was framed. The learned counsel is justified in saying that those issues, which had been decided by the High Court earlier, confining the remand to only issue No,6, could not be reopened subsequently, the respondent having sought no relief against them. But the fact of res judicata itself was relatable to the pendency and the dismissal of the earlier suit and once we find the fact established, the reference to a particular provision of law by itself would not be decisive of the question as to what are the consequences of the established facts. It is on this principle that while examining the question of res judicata if the bar of Order II, Rule 2, C.P.C. Appeared on the surface convincingly, the Court could not refuse to record a finding and give effect to it because of issue being of res judicata.
15. In the third suit instituted by the appellant, certain new facts had come into existence. One fact was that when the appellant wanted to fix a door and to provide a ventilator in November, 1968, the defendant rushed to institute Suit No,571/1 and challenged the right of the plaintiff-appellant thereby making the agreement dated 6-8-1967 voidable at the option of the appellant. Secondly, it was stated that in July, 1969 i,e. After the institution of the first suit and during its pendency, the contesting defendant had raised walls A to B and A to C, shown in red in the Plan attached with the Paper Book, thereby violating the revised sanction granted to the respondent by the Municipal Corporation. These two facts clearly could not be and were not the subject-matter of the civil suit instituted on 19th of March, 1969. Therefore, the institution of the third suit while the first was pending, on fresh grounds that became available during the pendency of that suit and continuance of the second suit even after the dismissal of the first suit under Order IX, Rule 8, C.P.C.
Could not on any ground be objected.
' The causes of action were different, the occasions when the causes of action arose were different and the High Court has also recognized this difference by saying that the plaintiff ought to have amended the plaint and incorporated the subsequent causes of action and the relief in the first suit. That was at best an option open to the plaintiff. He could not, however, be penalized for not availing of it and adopting the other course of restricting in the third suit the controversy to the causes of action which had arisen after the institution of the first suit.
16. The learned counsel for the respondent has attempted to show that the cause of action remained substantially the same with slight variations. By reproducing the relevant portions of claims made at various stages, it has been made clear that the causes of action as expressed are different from those set out in the first suit. It is a different matter that after contest and evidence what the learned counsel for the respondent says, may turn out to be true. However, that conclusion cannot be reached on the facts as they stand today or as they were before the Courts which decided the issue.
17. The case-law cited by the learned counsel for the respondent is distinguishable because in Amir Din Shahab Din's case it was assumed as a fact that during the pendency of the first suit plaintiff instituted another suit based on same cause of action and against same defendants. Such a suit was held to be barred and rightly so because the facts amply justified it. In the case of Abdul Hakim, this Court laid down that in considering the application of the bar of Order II, Rule 2, C.P.C., the allegations in the two suits without reference to the defence which may be set up by the defendants, have to be seen. It was also held that the plaintiff is under no obligation to add his grievances which did not occur in the transaction on which the first suit was based. What has been explicitly stated, where two trespasses have taken place on different occasions and the second was not in existence at the time of the first suit, there could neither be any occasion nor any necessity for the plaintiff to seek redress for the second trespass in the first suit. In such a situation the suit was held not to be barred under Order II, Rule 2, C.P.C.
18. In the case of Aziz Ahmad and others a relief which could be the relief sought in the two suits was identical but the properties were different. The second suit was held barred because the property could not be excluded from the first suit on any ground whatsoever it being in existence then. Similarly, M.K. Abbasi's case pre-supposes the existence of the claim and omission or to include it in the suit or relinquishment of it. As demonstrated in the case before us the cause of action on which the third suit was filed was subsequent to the cause of action made the basis of the first suit. Hence on no principle, the last suit could be held to be barred.
19. The appeal is. Therefore, allowed. The impugned judgments of the three Courts are set aside and the case is remanded to the trial Court for decision on merits.