AJMAL MIAN, J.---Leave to appeal was granted to consider, whether the High Court and the learned Additional District Judge had taken the view in the present case contrary to the judgment of this Court in the case of Aziz Ahmed and others v. Mst. Hajran Bibi and others 1987 SCMR 527 against the judgment dated 20-6-1988 passed by a learned Single Judge of the Lahore High Court in Civil Revision No. 1125 of 1988 filed by the appellants against the order of the learned Additional District Judge, Lahore, dated 18-2-1988, dismissing the same.
2. The brief facts to be noted are that respondents Nos. 2 to 4 by an agreement dated 2-11-1980 agreed to sell the suit property to respondent No.1 for a sum of Rs.1,75,000, out of which the latter had paid a sum of Rs.25,000 as earnest money. On 18-11-1981 respondent No.1 filed a suit for permanent injunction against respondents Nos. 2 to 4 for restraining them from disposing of the suit property in favour of any other person than respondent No.1. It seems that on 30-6-1982 respondents Nos. 2 to 4 sold the suit property to the appellants. Thereupon, on 7-9-1982 respondent No. 1 filed a suit for specific performance against respondents Nos. 2 to 4 but at a later stage also impleaded the present appellants as defendants Nos. 6 and 7. It further seems that on 13-9-1982 upon respondent No.1's application, his earlier suit for permanent injunction was allowed to be withdrawn and was dismissed as withdrawn. In the aforesaid second suit the appellants filed a written statement and also an application under Order 7, Rule 11, C.P.C. In which it was averred that the above second suit was barred by Order 2, Rule 2, C.P.C. And, therefore, the same should be dismissed. The learned Civil Judge by his order dated 17-4-1985 dismissed the aforesaid respondent No.1's suit for specific performance on the ground that the same was barred by Order 2, Rule 2, C.P.C. Against the above order, respondent No.1 filed an appeal which was allowed by the learned Additional District Judge, Lahore, by his aforesaid judgment dated 18-2-1988 and the case was remanded to the learned Civil Judge for trial. Against the above order, the appellants filed aforesaid civil revision which was dismissed by a learned Single Judge of the Lahore High Court by his afore-mentioned judgment dated 20-6-1988. After that the above appeal was filed with the leave of this Court to consider the aforesaid question.
3. In support of the above appeal, Mr. Mushtaq Raj, learned Advocate Supreme Court for the appellants, has vehemently contended that since the earlier suit filed by respondent No.1 was in respect of the same sale agreement, the second suit was barred by Order 2, Rule 2, C.P.C. On the other hand, Raja Muhammad Akram, learned Advocate Supreme Court appearing for respondent No.1, has contended that as respondent No.1 was not entitled to the relief of permanent injunction, the second suit for specific performance was not hit by Order 2, Rule 2, C.P.C.
4. Mr. Mushtaq Raj in support of his above submission has referred to the following cases:--
(i) Aziz Ahmad and others v. Mst. Hajran Bibi and others 1987 SCMR 527, in which the facts were that one Sultan Muhammad owned immovable property in Faisalabad and Bahawalpur districts. He expired on 28-9-1957. Thereupon, the property left by him was mutated in favour of his widow, Mst.
Hajran Bibi and his minor son Muhammad Arshad, the respondents in the above case. The appellants who were brothers and sisters of the deceased filed a suit at Faisalabad for a declaration to the effect that Muhammad Arshad was not the son of Sultan Muhammad as such he was not the latter's heir and consequently they were entitled to 3/4th share in the property of the deceased. The suit was resisted by the respondents inter alia 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, Order 9 of the Code of Civil Procedure. The learned trial Court rejected the above objection on the ground of want of proof of filing of the earlier suit but upon filing of revision, the High Court, sustained the above objection.
Against the above judgment of the High Court, the aforesaid appeal was filed which was dismissed.
We may observe that it is evident that the facts of the above case are distinguishable from the present case as the question in the above case was, whether the suit was barred under Order 9, Rule, 9, C.P.C. And not under Order 2, Rule 2, C.P.C.
(ii) Mst. Gulzar Bibi and others v. Sarsa Khan and others PLD 1985 SC 345.
In the above case the question before this Court was, whether the High Court should have permitted the amendment of the plaint so as to convert a suit for declaration as to ownership of the suit land into a suit for specific performance of contract of exchange involving the suit land.
This Court allowed the above amendment though it was declined by the High Court. While touching upon the above question reference was also made to the effect of Order 2, Rule 2, C.P.C.
In our view, this case has no direct bearing though the discussion on Order 2, Rule 2, C.P.C. Is contained therein.
5. On the other hand, Raja Muhammad Akram, has referred to the following cases:--
(1) Sardari Mal v. Hirde Nath and others AIR 1925 Lah. 459. in which the Lahore High Court allowed the appeal against the order of trial Judge who dismissed the suit for specific performance on the ground that it was barred by the provision of Order 2, Rule 2, C.P.C. As the plaintiff had filed an earlier suit for permanent injunction. While allowing the above appeal, the Division Bench made following observation:-- "I do not think it necessary to decide whether or not the cause of action in the two suits is the same, for it is quite clear that a suit for a permanent injunction did not lie. The plaintiff was not entitled to come to the Courts for such a relief in respect of the present cause of action. This is quite clear from the provisions of section 56(1) of the Specific Relief Act, which provides that `an injunction cannot be granted when equally efficacious relief can certainly be obtained by any other usual mode of proceedings, except in case of breach of trust'. The usual mode of proceeding on breach of a contract for the sale of lands is to bring a suit for specific performance of the contract. The plaintiff, therefore, was not entitled to two reliefs in respect of the breach of a contract, one by way of injunction and the other by specific performance. He was entitled only to the one relief, namely, a suit for specific performance, in which he could have added a claim for compensation. Order 2, Rule 2, therefore, is no bar to the present suit. A number of cases have been cited by the Counsel, but I do not think it necessary to discuss them. It seems to me that no authority is required for the proposition that a plaintiff, who sues for a relief which the Courts cannot grant him, is not debarred from subsequently bringing a suit in respect of a relief which the Courts can grant him. There is certainly nothing in Order 2, Rule 2, to the contrary."
(2) Ghulam Nabi and others v. Seth Muhammad Yaqub and others PLD 1983 SC 344.
In this case this Court took the same view which found favour with the learned Judges of the Division Bench in the above Lahore case and observed as follows:-- "7. Learned counsel for the appellants has argued against the maintainability of the suit on the basis of the provision of Order II, Rule 2, C.P.C. The rule enjoins that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action and bars, except with the leave of the Court, any subsequent suit in respect of any portion of his claim which the plaintiff omits or intentionally relinquishes in the first suit. The object of the rule is to avoid splitting of claims and to prevent multiplicity of suits and is based on the principle that the defendant should not be vexed twice for the same cause. The argument of learned counsel proceeds on the assumption that both the suits brought by Seth Muhammad Yaqub having been on the same cause of action and the relief by way of specific performance of the contract having not been included in the first suit, the second suit for the specific performance was hit by the provision of this rule. But it has not been shown that the rule applies even where the relief claimed in the first suit had been incompetent or the suit itself had been barred by section 56(1) of the Specific Relief Act. A relief of injunction as claimed in the first suit could not be granted in a matter of breach of contract and specific performance being the proper and equally efficacious relief, the first suit was hit by the provision of section 56(1) of the Specific Relief Act. It had been held in Holland-Bombay Trading Co. v. Essardas Dhramchand AIR 1925 Sindh 175 that under section 56(1) no injunction should -be granted when equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust. The cases cited by learned counsel, namely, Muhammad Hafiz v. Mirza Muhammad Zakariya AIR 1922 PC 23, Sher Ali v. Torap Ali AIR 1942 Cal. 407.
Amir Din Shahab Din v. Shiv Dev Singh AIR 1947 Lah. 102, Muhammad Khalil Khan v. Mahbab Ali Mian PLD 1948 PC 131, Mukhtar Ahmad v. Inamul Haque PLD 1957 Kar. 622, Serajul Islam v. Abdur Rahman PLD 1957 Dacca 99, Shafiq Ahmad v. Muhammad Anwar Beg PLD 1968 Lah. 367 and Fazal Muhammad v. Muhammad Noor PLD 1975 Pesh. 17, are of no help as they are not attracted to the facts of the present case. In Sardari Mal v. Hirde Nath AIR 1925 Lah. 459 in the matter of an agreement to sell certain plot of land, a suit for permanent injunction had been brought which had been dismissed on the ground that such suit did not lie and plaintiff had then brought a suit for specific performance of the agreement. It was held that he was not debarred from doing so. In this connection, the Court had observed:-- I do not think it necessary to decide whether or not the cause of action in the two suits is the same, for it is quite clear that a suit for a permanent injunction did not lie. The plaintiff was not entitled to come to the Courts for such a relief in respect of the present cause of action. This is quite clear from the provision of section 56(1) of the Specific Relief Act, which provides that `an injunction cannot be granted when equally efficacious relief can certainly be obtained by any other usual mode of proceeding, except in case of breach of trust'. The usual mode of proceeding on breach of a contract for the sale of the lands is to bring a suit for specific performance of the contract. The plaintiff, therefore, was not entitled to two reliefs in respect of the breach of a contract, one by way of injunction and the other by specific performance. He was entitled only to the one relief, namely, a suit for specific performance, in which he could have added a claim for compensation. Order II, Rule 2, therefore, is no bar to the present suit'.
In Nasira Sultan v. Habib Bank Ltd. Etc. PLD 1975 Kar. 268, where the plaintiff, a purchaser of the lessee's rights of allotment had filed a suit for declaration and injunction to restrain further sale by the lessee and had subsequently filed a suit for specific performance against the lessee, it had been held that the subsequent suit was not barred under Order II, Rule 2, C.P.C."
6. The above cited two judgments have direct application to the facts of the present case. In the above cited case of this Court; reliance has been placed on a number of judgments of superior Courts of Pakistan and of Indian jurisdiction. We are inclined to hold that the view which found favour with the learned Additional District Judge and the High Court seems to be in consonance with law. The appeal has no merits. It is, therefore, dismissed but there will be no order as to costs.