1. This second appeal is directed against the judgment ofAdditional District Judge (East), Karachi dated 5-5-1990, whereby he upheld the judgment of IV-Senior Civil Judge, dated 4-5-1989 dismissing the suit of the appellant on the ground that it was barred under Order II, Rule 2, C.P.C.
2. The facts forming background of this appeal are that the appellant had advanced a loan of Rs.77,000 to respondent who executed a simple mortgage agreement in his favour on 23-9-1985 in respect of his House No.1/1044, Block-1, Shah Faisal Colony, Karachi. It was orally agreed simultaneously that the amount of the loan would be returned in monthly instalments and would be cleared in one year. The respondent did not pay a single pie towards the instalments till 16-12- 1985. By this date a sum of Rs.19,249 had become due, as three instalments had fallen due and therefore, the appellant filed a suit for the recovery of Rs.19,249. The suit proceeded exparte as the respondent had chosen to remain absent, and was,.Therefore, decreed ex parte. The respondent again fell in arrears and did not pay the remaining instalments till 31-5-1988. By that date the remaining amount of Rs. 57,751 became due. The appellant, therefore, filed the present suit for recovery of that amount. The Respondent again remained absent and the suit proceeded ex parte.
2. The learned trial Court came to the conclusion that since this amount was not claimed in the first suit which was instituted on 16-12-1985, therefore, it had become barred under Order 11, Rule 2, C.P.C.
3. Therefore, the suit was dismissed. The matter was taken in appeal. The learned Additional District Judge uphled the order of the learned Senior Civil Judge and dismissed the appeal. Aggrieved by the said order the appellant has come to this Court in second appeal.
3. 1 have heard Mr. Mehmood Habibullah for the appellant. The respondent has chosen to remain absent in spite of service by publication. It will be useful to reproduce Order 11, Rule 2, C.P.C. Which reads as under:-- "2. Suit to include the whole claim.--(l) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.
(2) Relinquishment of part of claim.-- Where a palintiff omits to sue in respect of or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.
(3) Omission to sue for one of several reliefs.-- 'A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, excepts with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted."
4. The bare perusal of this provision makes it quite clear that a plaintiff is required to secure exhaustion of the entire relief which is due to him at the time of filing a suit. The omission to sue in respect of any portion of that relief without the leave of the Court debars him from filing another suit in respect of the remaining portion of the relief. Hence if at the time of filing of first suit the cause of action in respect of the remaining portion of the relief had not accrued, a plaintiff is not debarrded from filing a subsequent suit in respect of such portion of the relief afterwards.
5. Reference in this connection may be made to AIR 1935 Bombay 306 (Rama Kallappa Pujari v.
6. Saidappa Sidrama Pujari and another). In this ruling a suit for partition and possession of immovable property was filed wherein no prayer for future mesne profits was made. Subsequently a suit for such mesne profits was filed. A Division Bench of Bombay High Court consisting of Beaumont, CJ. And NJ. Wadia, J. Held that the cause of action for future mesne profits cannot be said to have arisen at the time when the suit for partition and possession of immovable property was filed and therefore, the subsequent suit was maintainable.
7. In another ruling from Indian jurisdiction reported in AIR 1964 Madhya Pradesh 129 (Praphullachandra and others v. Rajbai and others) similar view was taken. In that report a mortgagee had leased back the property to the mortgagor on a consideration representing the monthly interest on the mortgage money. The mortgagor failed to pay back the amount within stipulated period and sold the property in contravention of stipulation. The mortgagee brought a suit for rent on the basis of lease-deed. The suit was decreed. A subsequent suit for mortgage money was resisted on the ground that it was barred under Order II, Rule 2, C.P.C. It was held that the cause of action for enforcement of mortgage was distinct from that of lease and had not arisen by the time the first suit was filed and therefore, the subsequent suit was not barred under Order 11, Rule 2, C.P.C.
8. In a ruling of our own High Court reported in PLD 1963 (W.P.) Kar. 969 (Hoosain Bux and others v. Dur Muhammad and others) it was held as follows- "Where, therefore, in the sale-deed there was absence of express agreement to transfer possession independently of the registered conveyance and the purchaser had no right to the possession of the property until the conveyance was completed by the payment of the balance of purchase price and registration of the conveyance deed, it was held that the second suit for possession brought by the purchaser after he had obtained a decree for specific performance of agreement to sell in a previously instituted suit, was not barred under Order 11, Rule 2, C.P.C."
9. In another ruling of our own High Court reported in PLD 1971 Kar. 729 (M/s. Hoosen Brothers Ltd., Karachi v. M/s. S. Abdullah & Co., Karachi) it was held that where there are two cheques issued in favour of the plaintiff in respect of the same transaction, two separate suits one after another could have been filed in respect of those two cheques because, the cause of action in --respect of each cheque was distinct and different from another.
10. The relevant para in which the learned Additional District Judge has given the additional reasoning for coming to the same conclusion to which the trial Court came, reads as under:-- "Under Order 2, Rule 2, C.P.C. The plaintiff/appellant has to include the entire claim which he is entitled to make in respect of the cause of action and if he omits to sue or relinquish any part or portion of his claim he shall not subsequently sue in respect of the portion so omitted or relinquished. The above legal position is very much clear and is mandatory in nature. The contention of the appellant/plaintiff is that since it was orally agreed that the amount was to be paid in instalments hence he has filed suit for Rs.19,249 in the first instance and obtained decree and thereafter he has sued ' for the remaining entire balance. But I do not find any substance in the contention of the appellant/plaintiff as the mortgage deed relied upon by the versus appellant/plaintiff is totally silent about this fact of settlement of the instalments nor the amount of instalments is specified nor the final date of payment is shown. In absence of the abovementioned facts and circumstances, the plea of instalments taken by the appellant/plaintiff bears no weight and worth in the eye of law."
11. From the perusal of this para it would appear that although the learned First Appellate Court was conscious of the legal position that the provisions of Order 11, Rule 2, C.P.C. Would not apply if the amount for which the second suit is filed hid not fallen due by the date when the first suit was filed, but he went to the factual aspect and held that the allegation of the appellant that the respondent had undertaken to return the amount in monthly instalments and that only three instalments had become due by then was incorrect and was, therefore, disbelieved by him.
12. The reasoning of the learned Additional District Judge is not correct The mortgage agreement did not specify the mode in which the loan amount was to be returned. Hence the appellant was at liberty to adduce oral evidence as to the mode in which the. Respondent had to return the amount of loan. The appellant consistently in his both the suits contended that the loan amount was to be returned in monthly instalments within. One year. He also filed such affidavit in evidence. Neither there was any denial of this fact by written-- statement or counter-affidavit, nor any such question was put to the appellantin cross-examination. Hence the learned Appellate Court was not justified to come to the conclusion that this allegation was incorrect. I am, therefore, of the clear view that the Court had no other option, but to accept the sworn testimony of the appellant to the effect that the amount of loan was to be returned in monthly instalments. Hence the cause of action in respect of the balance amount of Rs.57,751 was distinct from the cause of action in respect ofthe first three instalments and had not accrued by the time the first suit was filed.
13. I therefore, allow the appeal, set aside the impugned judgments of both the lower Courts and decree the appellant's suit for a sum of Rs.57,751. Mr. Mehmood Habibullah does not press his prayer for permanent injunction and the same is, therefore, not granted. The costs of the suit shall be borne by the respondent.