1. ' This petition in extraordinary jurisdiction of this Court under Article 199 of the Constitution by Mehndi defendant in the suit was against two orders of the lower Courts by which these had declined to summarily reject the plaint under Order VII, Rule 11 of Civil P.C. On account of a bar of Order rule 2 of Civil P.C. Pleaded in defence.
2. ' Chuhar son of Rulia held some land at Mauza Easherkey in Tehsil and District Sheikhupura. By a deed dated 21-1-1985, he gifted his land (102 Kanals, 8 Marlas) in favour of Mehndi. Muhammad Ramzan and Abdul Majid brought a suit for declaration coupled with perpetual injunction against Mehndi and Sub-Registrar, Sheikhupura for cancellation of the gift deed and its implementation at the instance of defendant Mehndi. Suit was instituted, on 12-7-1989. It was contested. Pleadings in the suit gave rise to as many as six issues. Issues Nos.4 and 5 were treated as preliminary issues.
3. Issue No, 4 was about the proper valuation of the suit for purposes of court-fee and jurisdiction and issue No,5 related to the maintainability of the suit in its existing form. On 27-2-1991, trial Court at Sheikhupura found that since the plaintiffs of the suit were out of possession of the gifted land, a suit for declaration simpliciter without claiming consequential relief for possession was barred under proviso to section 42 of the Specific Relief Act, 1877. The trial Court had called upon the plaintiffs to amend the plaint for inclusion of relief of possession but they declined the offer.
4. Consequently, the trial Court found that suit was not maintainable in its present form and dismissed it with costs. No appeal was filed from the judgment and decree of the trial Court dismissing the suit on account of its defective form.
5. ' On 17-3-1991, Muhammad Ramzan alone filed a suit for joint possession of the gifted land in respect of his 1/3rd share in it and styled the gift by Chuhar in favour of Mehndi as invalid.
6. Alongwith Mehndi, Abdul Majid was impleaded as defendant No,2 in the suit. It was stated at Bar that Muhammad Ramzan, Abdul Majid and Mehndi were nephews of Chuhar and were his lawful heirs. Without submitting written statement, defendant No,1 (Mehndi) filed a petition for summary rejection of the plaint under Order VII, Rule 11, Civil P.C. The petition gave account of the previous suit and the order passed in it. It was also stated that the plaint of the suit was insufficiently stamped and, therefore, was liable to rejection. Plaintiff resisted the application for summary rejection of his plaint. By order dated 16-9-1991, the trial Court dismissed the application for rejection of the plaint.
7. In revision preferred by defendant Mehndi, learned Additional District Judge, Sheikhupura maintained the order of the trial Court and dismissed the revision, on 10-5-1993. Since the order passed in revision was not susceptible to a further revision, a petition in extraordinary jurisdiction was filed in this Court for setting aside of the impugned orders given in the Courts below.
8. ' At the hearing, learned counsel relied on Order II, rule 2, Civil P.C. And decision of this Court in Hashmal Khan v. Umaid Khan and others 1991 M LD 2369 (Lah.) and a case from Karachi jurisdiction in Dr. Akhtar Hussain v. S.M. Hanif, etc. 1990 M LD 1652 for spelling out an insuperable bar for the maintainability of the second suit on the same subject, though brought in different form and for a different relief also. It was argued that since plaintiffs in the earlier suit for declaration plus injunction were adamant for not amending the plaint for addition of consequential relief in form of possession of the land in dispute, they were precluded to institute a fresh suit for joint possession.
9. ' Precise point for consideration was, whether Order II, rule 2, Civil,P.C. Applied to the facts of the case and the second suit was barred on this score. Obviously, the earlier suit for declaration was not dismissed on merits. It merely failed on account of its defective form, inasmuch as, it did not include the consequential relief for possession of the land in dispute. Proviso to section 42 of the Specific Relief Act hit its maintainability. In Narayan v. Bhiwaji and others---VI Indian Cases page 926, it was held that the dismissal of a suit for declaration on the ground that plaintiff ought to have sued for possession did not bar subsequent suit for possession. The causes of action in the two cases were different, although the title may be the same. The cause of action in a suit for declaration was defendant's conduct throwing a cloud on plaintiff's title, whereas in a suit for possession, the cause of action was invasion of plaintiff's possession. In Maung Ba Thaung and others v. Ma Shin Min and others ---XXXVII Indian Cases 15, it was found that a plaintiff whose suit for a declaration of title to land had been dismissed on the ground that he was not in possession at the time of filing the suit, was not debarred by Order II, rule 2(3), Civil Procedure Code, from bringing a subsequent suit on the same title for recovery of possession of the same land. It was further held that before admitting a plaint for a mere declaratory decree a Court should take particular care to see that the plaint contains the allegation that the plaintiff is in possession of the property. In Aiyanar Raja and another v. Alagar Raja and others AIR 1919 Madras 45(1), the Court took the view that a suit for declaration of title to and possession of property will not be barred under 0.2, R.2, by reason of the dismissal of a previous suit for declaration and injunction restraining defendant from disturbing plaintiff's possession, on account of the failure of the plaintiff to prove possession. In order to completely attract the bar in Order II, rule 2, Civil P.C. To the subsequent suit, three conditions must be fulfilled. Firstly, that the previous and the present suit must have arisen out of same cause of action; secondly, both the suits must be between the same parties or their representatives and, thirdly, that the previous suit must have been decided on merits. The third important ground was clearly absent in this case. The previous suit was not tried on merits . It was dismissed for failing to claim consequential relief.
10. ' Headnote (b) in Muhammad Yar and others v. Muhammad Yar and another AIR 1929 Lah. 596 reads, "Where a previous suit by plaintiffs was dismissed under provisions of S.42, Specific Relief Act because in the opinion of the Judge, mere declaratory suit could not be maintained when the plaintiff under the law could have asked for consequential relief. Held: that the decision cannot operate as res judicata in the subsequent suit for possession. Any other observation which the Judge might have made in the course of judgment cannot operate as res judicata but must be treated as being obiter dicta". These observations were by a Division Bench of this Court. In Abdul Rashid Sheikh and others v. Sachidananda Raj and others AIR 1939 Calcutta 523 (at page 525), the Bench dealt with the objection grounded on Order II, rule 2, Civil P.C. In these words, "I now come to the second point as to whether the plaintiffs' suit is barred under the provisions of 0.2, R.2, Civil P.C.
11. Here also I think that the view taken by the District Judge cannot be sustained. This point, it may be stated at the outset, was definitely abandoned before the trial Judge. Be that as it may, the records show that in the previous suit the plaintiffs prayed for injunction on the footing that they were in possession of the lands in suit and that defendants No,1 to 3 as auction-purchasers were threatening to evict them. The suit failed on the ground that as the plaintiffs were already dispossessed, their remedy would be to institute a suit for possession. This suit they have now instituted. I do not think that 0.2, R.2 can in any way operate as a bar to the present suit". Similar observations were made in Mahomed Khan and another v. Shafi Mahomed and others AIR 1930 Sindh 87. It was observed that dismissal of a suit for declaration of a title under S.42, Specific Relief Act, and for an injunction to restrain the defendants from interfering with plaintiff's possession, on the ground that the plaintiff not being in possession ought to have asked for possession also, is no bar to a subsequent suit for a declaration of title and for possession. There, in the second suit, the plaintiff had asked for possession because it was held that the plaintiff had not got the possession.
12. It was held by the Sindh High Court that the subsequent suit was not barred by provisions of Order II, rule 2 of Code of Civil Procedure. Similar views were expressed in a case reported in AIR 1959 Mysore 227. In Allah Dad v. Feroze Khan 1990 CLC 1920, the Supreme Court (Azad J&K) upon reference to previous case-law held that dismissal of previous suit for declaration of title and perpetual injunction on the ground that plaintiff was not found in possession of property, would not create a bar to the subsequent suit for possession for the simple reason that cause of action in subsequent suit would be deemed to have accrued to the plaintiff only after dismissal of his former suit. Mere fact that plaintiff made an incorrect statement in the former suit regarding factum of possession would not bring the suit within the mischief of 0.11, R.2. Civil Procedure Code, and, therefore, the subsequent suit for possession shall be maintainable. In Rasul Khan v. Qalandar Din and 4 others 1988 CLC 323, I took the view that where previous suit was not decided on merits, bar of Order II, rule 2, Civil P.C. Shall not apply. In S. Bhagat Singh v. Satnam Transport Co. Ltd. And others AIR 1961 Punjab 278, a Division Bench of the East Punjab High Court, on proviso to Section 42 of the Specific Relief Act observed that, "in a case where the plaintiff who is able to sue for further relief, omits to do so and sues for a declaration alone, and the proviso to S.42 is attracted, the Court should not dismiss the suit but should give the plaintiff an opportunity to amend his plaint so as to include a prayer for consequential relief. It is then for the plaintiff either to amend the plaint and include the prayer for consequential relief, or face the possibility of the suit being dismissed. But if after an opportunity to amend the plaint has been given to the plaintiff, he fails to avail of that opportunity, then there is no alternative but to dismiss the suit". It happened the same way in the previous suit and the plaintiffs suffered the penalty of dismissal of their suit on account of proviso to Section 42 of the Specific Relief Act. The dismissal of the previous suit did not overshadow the fate of the subsequent suit brought in proper form. The two judgments relied upon by learned counsel for the petitioner reported in 1991 M LD 2369 (Lah.) and 1990 M LD 1652 were distinguishable on facts and were not in point for the correct application of Order II, Rule 2 of Civil P.C. To the facts of this case. It may be observed that the learned counsel for the application of bar of Order II, Rule 2 to the present suit, had relied on these two cases only and the rest I had to search from the law- digests as part of duty of a Judge to administer justice. Impugned orders, therefore, could not be characterised as illegal or without jurisdiction. Therefore, there is no cause to interfere with them.