' MIAN ALLAH NAWAZ, J.---This is an appeal by the plaintiff from the decision of original Court dated 27-2-1992 whereby he dismissed the suit on the ground that it was barred under Order II, Rule 2 of the Code of Civil Procedure (hereinafter referred as the Code).
2. The facts, in brief, are; that by means of agreement to sell dated 1-12-1990, Abbas All Syed (herein respondent) agreed to sell the property in dispute (fully described in the plaint) to the appellant for a sum of Rs,3,50,000, received an amount of Rs,1,00,000 as earnest money and covenanted to receive the balance of price on or before 30-5-1992, when he undertook to get the sale-deed registered under the provisions of Registration Act. As the respondent did not complete the agreement to sell noted above and made endeavour to alienate the property in dispute to some one else, the appellant instituted a suit for grant of perpetual injunction against the respondent in the Court of learned Civil Judge, 1st Class, Hafizabad. It was prayed therein that the respondent be restrained from alienating the property in dispute to any one else. During the pendency of the suit, the appellant brought a suit for specific performance of agreement to sell noted above in the same Court and withdrew the suit for grant of perpetual injunction on 20-1-1992. In this factual background, the suit for specific performance of agreement to sell, remained on the file. This suit was contested.
3. On 6-5-1992, the respondent submitted an application under Order VII, Rule 11 of the Code in the same Court, alleging therein that the appellant had filed a suit for specific performance of agreement to sell notwithstanding the fact that he had earlier filed a suit for permanent injunction arising from the same cause of action. On the basis of these facts, it was alleged that the suit for specific performance was barred under Order II, Rule 2 of the Code as the appellant had abandoned the relief regarding specific performance in the first suit. This application was contested. The learned original Court held that the suit for specific performance was barred under Order II, Rule 2 of the Code and on this conclusion, rejected the plaint under Order VII, Rule 11 of the Code.
4. Learned counsel for the appellant impeached the decision of the Court below on two-fold grounds. Firstly, that the suit for perpetual injunction filed by the appellant was incompetent under section 56 of the Specific Relief Act (I of 1877) and, therefore, second suit for specific performance was not hit by the principle embodied in Order II, Rule 2 of the Code. Reliance was placed on Ghulam Nabi and others v. Seth Muhammad Yaqub and others (PLD 1983 SC 344). Secondly, that Order II, Rule 2 of the Code, in fact, was applicable to a subsequent suit and not a contemporaneous suit. According to the learned counsel, the suit for permanent injunction was pending adjudication when the appellant had filed a suit for specific performance on 20-1-1992; that the suit for permanent injunction was withdrawn on 20-1-1992. On the strength of these facts, it was contended that the principle contained in Order II, Rule 2 of the Code was not at all applicable to the facts and circumstances of this case. S. On the contrary, learned counsel appearing on behalf of the respondent, feebly supported the impugned decision by saying that suit for specific performance which was, in fact, subsequent had arisen out of the same cause of action wherefrom the suit for permanent injunction originated. According to the learned counsel as the plaint of the first suit did not contain the relief pertaining to specific performance of agreement to sell, the same was barred under Order II, Rule 2 of the Code.
6. From the above narration of facts and circumstances of the case, the only question falling for determination is "whether the suit for specific performance instituted by the appellant on 2-1-1992 was barred under Order II, Rule 2 of the Code". The answer to this question was furnished by Sardari Mal v. Hirde Nath and others (AIR 1925 Lahore 459). In this case on 21-8-1918, one Hirde Nath acting on behalf of himself and as a Mukhtar of Pushkar Nath and as a guardian of a minor, entered into an agreement with Sardari Mal to sell to the latter certain plot of land, received a sum of Rs,99 as earnest money and received a further sum of Rs,100 later on. Instead of completing the sale, the said Hirde Nath entered into an agreement of sale with another person whereon Sardari Mal filed a suit against Hirde Nath for permanent injunction. This suit was dismissed on the ground that the suit for injunction was not competent. Thereafter Sardari Mal brought the suit for specific performance of agreement to sell. The learned original Court dismissed the suit by holding that it was barred under Order II, Rule 2 of the Code. On appeal, the Division Bench of Lahore High Court accepted the appeal and held that as the suit for permanent injunction was not competent, the suit for specific performance was not hit by the principle of constructive res judicata in Order II, Rule 2 of the Code. It was held:-- "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 cuase of action. This is quite clear from the provisions of section 56(i) 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 lands is to bring a suit for specific performance, of the contract. The plaintiff, therefore, was not entitled to contract, one by way of injunction and the other by specific performance, in which he could have added a claim for compensation. Order II, Rule 2, therefore, is no bar to the present suit. A number of cases have been cited by 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 II, Rule, 2, to the contrary."
' The rule laid down in Sardari Mal's case (AIR 1925 Lahore 459) was noted with approval by Supreme Court of Pakistan in Ghulam Nabi and others v Seth Muhammad Yaqub and others (PLD 1983 SC 344).
7. Equally efficacious is the second contention of the learned counsel for the appellant that Order II, Rule 2 of the Code applies to subsequent suit and not contemporaneous suit. This view was laid down in Haji Ashfaq Ahmad Khan and others v. Custodian of Evacuee Property and others (PLD 1966 Karachi 597).
8. Applying these principles to the facts and circumstances of this case, it is crystal clear that suit for grant of perpetual injunction filed by the appellant was incompetent under section 56 of the Specific Relief Act and, therefore, the suit for specific performance filed by the appellant was not hit by the principle of constructive res judicata embodied in Order II, Rule 2 of the Code. Even otherwise, the suit for specific performance and suit for permanent injunction were pending adjudication simultaneously, it was on 20-1-1992, when the appellant withdrew the first suit with the permission to refile the same. On these circumstances, Order II, Rule 2 of the Code, in our estimation, was not applicable to the facts and circumstances of this case. On these facts, we have no hesitation in reaching the conclusion that the decision of the Court below dated 27-7-1992 suffers from error of law apparent on the face of record and cannot be sustained.
' For the reasons stated above, this appeal must succeed. We accordingly accept the appeal filed by the appellant, set aside the judgment and decree of the Court below dated 27-7-1992 and remand the case to the original Court for decision on merits in accordance with law. Since the appeal raised a number of legal questions which were not free from difficulty, we leave the parties to bear their own costs.