1. MUHAMMAD AFZAL ZULLAH, CJ.---This appeal through leave of the Court, by the defendants' side in a suit for pre-emption, is directed against the judgment dated 22-11-1987 of the Lahore High Court; whereby the respondent/plaintiff/pre-emptor's Regular Second Appeal was allowed and his suit was decreed. Leave grant order reads as follows:-- "The brief facts are that land measuring I kanal 10 marlas bearing Khasra No.539, situate in Mauza Murraria, Tehsil Attock, was purchased by Qalandar Din and his three brothers the petitioners, for a sale consideration of Rs.8,000. The sale was pre-empted separately by Karam Khan and Rasul Khan respondent. As both the suits had arisen out of the same sale, these were consolidated after impleading the rival pre-emptors. On 2-12-1974 the parties came to a compromise, as a result first decree for pre-emption was granted to Karam Khan who was directed to deposit the pre-emption money, viz., Rs.8,000, till 4-1-1975, in default, second decree for pre-emption, was passed in favour of Rasul Khan, the inferior pre-emptor, who was directed to deposit the decretal amount of Rs.8,000, by 6r before 4-2-197$. Karam Khan deposited the amount and thereafter took out execution proceedings. It was on 11-4-1975 that the parties submitted an application where under Karam Khan surrendered all his rights in favour of the petitioners (vendees judgment-debtors) and prayed for the dismissal of the execution proceedings, which was accordingly done. No sooner Rasul Khan respondent came to know of this development he filed a suit for a declaration that Karam Khan had obtained the decree through collusion and fraud and that he should be permitted to deposit the amount. This suit was, however, dismissed on 22-10-1975 by the learned Civil Judge who was of the view that Rasul Khan's remedy lay under section 47 of the Code of Civil Procedure and that the suit was incompetent. Rasul Khan challenged this order by way of an appeal but the same was withdrawn. Thereafter Rasul Khan respondent filed the present suit for possession by pre-emption of the land in dispute. This suit was contested and as a result of tie pleadings of the parties as many as eight issues where framed of which issue No.5 is relevant and is couched in the following language:-- "5. Whether suit is barred by provisions of Order 11, Rule 2 C.P.C.?
2. After recording the necessary evidence, the learned Civil Judge decreed the suit of Rasul Khan respondent vide his judgment dated 29-1-1977. This judgment was however, reversed by the learned Additional District Judge, Campbellpur vide his judgment dated 9-1-1978, on the appeal filed by Qalandar Din etc. Petitioners, who relying on the authority of this Court reported as Abdul Hakam and 2 others v. Saadullah Khan and 2 others PLD 1970 SC 63, held that in this case the relief on the ground of sale was available to the respondent (Rasul Khan) at the time of the institution of the previous suit. While withdrawing the appeal from it, he did not withdraw it with the permission of the Court, neither did he take action under section 4 7 of the C.P.C. It is correct that the appellants (the petitioners) had adopted a method to deprive him of the land but by his own actions, the respondent had created legal clog against himself'. This judgment was impugned by Rasul Khan respondent in the High Court, where he succeeded through the impugned judgment in having reversed the order of the Additional District Judge.
3. "We have heard the learned counsel for the petitioners and the caveator. The learned counsel for the petitioners contended that the learned Judge in his Chambers had failed to appreciate that the grievance arose from the same action which was the cause of action in the previous suit and the present cause of action was available to the respondent at that stage and it was, therefore, incumbent upon him to have taken the present position in that case. Having failed to do so, it amounted to an omission and now he cannot sue for the relief so omitted. As against him, the learned counsel for the caveator contended that the previous cause of action was separate and distinct whereas the present cause of action was that the action of the pre-emptor decree-holder amounting to sale after receiving consideration during the execution proceedings and this was a fresh valid cause of action and the suit was not hit by the provisions of Order II, Rule 2 C.P.C.
4. Reliance in this case was placed by him on Sardari Mal , v. Hirde Nath (AIR 1925 Lahore 459) and Inzar (Jul v. Hajab Gul (AIR 1941 Peshawar 26).
5. We have given our careful consideration to the arguments advanced by the learned counsel for the parties and we think that the question that requires determination by this Court, is whether on the given facts and circumstances of the case the suit of the respondent (Rasul Khan) would come within the mischief of Order II, Rule 2, C.P.C. Leave is thus granted."
6. The above order shows that the crucial question is: whether the provisions of Order II, Rule 2, C.P.C.
7. Barred the third suit of the respondent/plaintiff in this case--on first suit he had succeeded in obtaining a pre-emption decree with second right to pre-emptor. The first right was granted in favour of the other pre-emptor; namely. Karam Khan. This decree m favour of Rasul Khan pre- emptor was frustrated by Karam Khan and the vendee, by Karam Khan having sold the land obtained through pre-emption again to the vendees; namely, Qalandar Din and his three sons-- the appellants herein. This transaction was effected at such a stage and point of time that the right to execute decree in favour of Rasul Khan had by that time passed. He then thought and believed that he had been defrauded through a collusion between the first pre-emptor and the vendees, therefore, he launched the second litigation through a suit for declaration seeking the annulment of transaction between the first successful pre-emptor and the vendees on ground of fraud. In this suit he did not succeed and filed an appeal which was withdrawn without the permission to file a fresh suit.
8. Obviously under Order II, Rule 2, C.P.C. He could not have filed the third suit on the basis of the same cause of action as was the basis of the second suit. Therefore, he filed third suit this time without throwing any serious challenge to the validity of the transaction between the first successful pre- emptor and the vendees which he had done in the second round of litigation through the second suit. This time he did not challenge the validity of the transaction between them. On the other hand he accepted it as a valid sale and filed a suit for pre-emption which was decreed on the assumption that this third suit was based on a different cause of action from what was the basis of the second suit filed by him (Rasul Khan). However, the appellant's first appeal succeeded and the suit was dismissed but the respondent/plaintiff's second appeal was allowed by the High Court which led to the grant of leave to appeal.
9. We have heard the learned counsel at length while his plea throughout remained that the cause of action for the second litigation/suit and the third litigation/suit remained the same, we strongly feel that it had completely changed. His contention that, as he put at, "what prompted the respondent/plaintiff to file the second suit", namely, the urge for annulment of transaction between the first pre-emptor and the vendees remained the same which prompted him to file third suit. This criterion of "what urges plaintiff to file a suit" has long been discarded as a proper definition/connotation of what is known as "cause of action". It is accepted rule now that it consists of bundle of facts and circumstances and other things and not just one element amongst them which ultimately urges a plaintiff or prompts him to file the suit as an immediate cause. In this case the essential features amongst the "bundle of facts" in the facts and circumstances, relating to the second litigation/suit and the third litigation/suit are totally different. In the second suit the respondent had seriously challenged the motives and intentions of the transaction. Not only this he had made positive assertion of fraud and collusion and above that he had not accepted the genuineness of the transaction as a sale. If these elements particularly last one would have remained the same as before, in the third suit, the very basis for suit for pre-emption in the third suit would have been obliterated. Without a sale there cannot be a pre-emption. In the second suit the sale was brought under challenge as collusive and non-existent. In the third suit the sale itself was accepted as lawful and complete and then it was brought under challenge through a suit for pre-emption. Similarly there are other factors constituting in the causes of action in the two suits which are totally different. Accordingly, the bar urged by the learned counsel as contained in Order II, Rule 2, C.P.C. Was not attracted.
10. Learned counsel also tried to show that the third suit would be barred by bar of res judicata. This plea was not earlier urged nor in the present circumstances we are inclined to examine this additional plea because leave to appeal was not granted on this question. And as an exercise of discretion we would not grant leave on this additional point during the hearing of this appeal because of the equities which go in favour of the respondent's side.
11. In the light of what has been stated above this appeal has no force and is dismissed with no order as to costs.