1. ' This is first appeal from a decision of learned District Judge, Sargodha passed on 20-3-1985 in appeal directed against an interlocutory order of the learned trial Court dated 10-1-1985 by which temporary injunction was discharged and vacated and plaint in the suit for rendition of accounts rejected on the grounds of the suit being not maintainable and also barred by limitation.
2. ' Facts for the purposes of this appeal in brief are:- On 18-8-1970, Board of Intermediate and Secondary Education, Sargodha (for short, Board) invited tenders for the work of printing, preparation and bundling of eight lacs of blank answer books of 16 pages each and two lacs of additional sheets of eight page each (250 copies per bundle and each copy consisting of 16 pages, in all 3,200 bundles. Additional books of 250 copies in bundles and each copy of eight pages, 800 bundles) for use in the Secondary School Certificate and Intermediate Examination of 1971. M/s. Abdul Hameed and Company (hereinafter referred to as appellants) and some others submitted tenders for the work. Appellants' tender being lowest in competitive rates was accepted by the Board. Pursuant thereto, an agreement was executed between the appellants and the Board on 19- 11-1970 for ensuring performance of contracted work. Surety bonds were also executed to guarantee due performance of the contract in accordance with its terms and conditions. Paper of the required standard and specification was to be supplied to the appellants by M/s. Paper Corner Lahore upon the order placed with them by the Board. In course of currency of the contract, the Board further felt the need for more answer books to meet their requirements and placed supplementary order No,429 dated 27-4-1971 with the appellant for printing of 2,27,360 answer books. Appellants accepted the supplementary order. They received 2,300 reams of paper of requisite specification from M/s. Paper Corner Lahore on different dates but did not supply the supplementary order with regard to the answer books totalling 2,27,360.
3. ' Respondent instituted a suit against the appellants for return of 464 reams of paper or value thereof assessed at the rate of Rs,71 per ream totalling Rs,32,944 in the Civil Court at Sargodha.
4. Appellants resisted the suit, denied their liability for return of 464 reams of paper or value thereof and set up a counterclaim against the respondent. On 1-3-1984, the trial Court decreed the suit in favour of the respondent for the amount claimed by them. Appellants challenged it in Civil Appeal No,82 of 1984 filed before learned District Judge, Sargodha but failed in his Court on 13-9-1984.
5. Correctness of decision in appeal was not agitated further and therefore it attained finality qua their liability to pay the decretal amount to the Board.
6. ' On 20-11-1984, appellants instituted a fresh suit for rendition of accounts against the respondent- Board for payment of their outstanding bills amounting to Rs,9,725 security amount in the sum of Rs,1,500, Rs,1,000 as charges for printing of 50 reams out of the supplementary order and damages in the sum of Rs, 5,000. Alongwith the plaint, appellants also applied for a prohibitory injunction for stopping the Board from recovering the decretal amount from them. Board contested the suit as also the application for temporary injunction. On 10-1-1985, the trial Court declined to reject the plaint and granted the relief for temporary injunction. Board preferred an appeal against the decision which culminated in the impugned order rejecting the plaint and discharging the temporary injunction. Appellants have come up in further appeal to this Court. On their behalf, it is contended by their learned counsel that in an appeal addressed against an interlocutory order, lower appellate Court was not authorised to reject plaint, and, in this behalf relied on a judgment of this Court in Shandev v. Lehri Khan and 2 others PLD 1983 Lahore 46 and as for vacation of temporary injunction, it is submitted that impugned decision proceeded upon an incorrect application of legal principles. Learned counsel for the respondent supported the impugned decision. It was argued that not only the suit was barred by limitation but it was not maintainable also because the adjudication in the earlier civil suit between the same parties operated as res judicata and therefore the lower appellate Court was quite correct in rejecting the plaint at the very outset. Learned counsel referred to section 107 (2), Civil Procedure Code to argue that on transfer of the suit from the trial Court to its own file, learned Judge below was justified to make an order for rejection of the plaint.
7. ' There are two aspects to the controversy in appeal. One pertains to the powers of the lower appellate Court for ordering rejection of the plaint and the other relates itself to the legality and propriety of rejecting the plaint before trial of the issues raised in it. In terms of section 107 (2), Civil Procedure Code, powers of the appellate Court are co-extensive with that of the trial Court.
8. Subject to presence of specified conditions, the plaint can be rejected even by the appellate Court and there is no express bar for restricting its powers in that behalf except that the plaint in the suit must be on its own file. Decision in Shandev's case (supra) does not assist the appellants. There also, the plaint was rejected in an appeal directed against an interlocutory order but there is a visible difference in the facts of that case and those existing in the present case. In the cited case, suit was not transferred to the file of District Judge. Conversely, here by an express order the suit was withdrawn from the trial Court for being kept on the file of the lower appellate Court and then an order rejecting the plaint under Order VII, rule 11, Civil Procedure Code was made. The act of the learned District Judge is supported by a judgment in Vithoba Yadeo v. Suryabhan and another AIR 1924 Nagpur 80. Also, learned counsel for the appellants frankly conceded jurisdiction in the Court of Appeal for passing of an order to reject plaint if necessary conditions laid down by law are found to exist. Therefore as for jurisdiction to reject the plaint, it clearly existed. Further, points agitated in the suit for rendition of accounts and relief claimed in it were clearly covered by rule of constructive res judicata embodied in explanation IV to section 11, Civil Procedure Code in earlier judgments of the Civil Courts by which appellants were adjudged liable to pay the decretal amount to the respondent-Board. Not only that these very pleas were taken in defence to the suit filed by the Board against the appellants but on their re-examination, the Court had found little merits in them.
9. In this view, subsequent independent suit on those very pleas for relief of rendition of accounts was not maintainable. Also, the learned Judge below was right in observing that the suit for rendition of accounts on the date of its filing was clearly barred by limitation and benefit of section 14 of the Limitation Act could not be allowed to the appellants to extend period of limitation. Apart from want of due diligence and good faith in prosecuting another civil proceeding in a Court which from defect of jurisdiction or a cause of a like nature was unable to give particular relief, earlier civil proceedings taken against the appellants did not have the effect of stopping the institution of subsequent civil suit by them which is a necessary condition for application of section 14 of the Limitation Act for excluding the time consumed in the earlier proceedings. Copies of the judgment of the trial Court and the appellate Court rendered in the earlier suit filed against the appellants were available on the record and the Court could legitimately look into them for finding out whether the plaint in the subsequent suit disclosed a triable cause of action and from the averments made in it was not barred by any law. Furthermore, the instances given in rule 11, Order VII, Civil Procedure Code for ordering rejection of the plaint are not exhaustive of the cases in which the plaint may be rejected.
10. In view of the above, appeal has no merits. It is dismissed with costs.