1. This judgment will dispose of Civil Miscellaneous Application No.5245 of 1994 in Suit No.337 of 1994 filed on behalf of defendants 1, 2 and 4 under Order VII, Rule 11 read with section 151, C.P.C.
2. The facts giving rise to this application relate to a controversy between. Pakistan Telecommunication Corporation (hereinafter referred to as the Corporation) and several defendants in respect of a property in which, at least, 26 years of life have been spent till date. The controversy got momentum in 1972 when against the judgment of an S.B. In J. Miscellaneous No.55 of 1969, two appeals under clause 10 of the Letters Patent bearing Nos. L.P.A. No.23 of 1972 and L.PA.
2. No.54 of 1972 were filed in the High Court of Sindh and a Division Bench comprising of Abdul Hayee Qureshi and Saeeduzzman Siddiqui, JJ. (as they then were) allowed L.P.A. No.23 of 1972 and dismissed L.P.A. No.54 of 1972 on 9-3-1980. It is notable that L.PA. No.54 of 1992 had been filed by the Government of Pakistan. Against this judgment two Civil Petitions bearing Nos.K-186 of 1980 and K- 199 of 1980 were directed before the Supreme Court of Pakistan and Nasim Hassan Shah, J. Who had authored the judgment for the Full Bench, the other Hon'ble Judges being Aslam Riaz Hussain, J. And Muhammad Afzal Zullah, J. Dismissed the petitions on 31-8-1982.
3. Second important field selected by the parties to get their desired results in the controversy in respect of the property in dispute was of "Ombudsman" who passed two conflicting orders.
3. First order dated 16-7-1989 was passed in favour of the Corporation and second order passed on 23-1-1990 reversed the first order dated 16-7-1989. For ready reference, both these orders are reproduced below:
(i) "After due examination of the case I find that Plots Nos.92 and 93 are owned by the petitioner according to the documents which he showed at the time of personal hearing. The High Court judgment in this case which mentioned Plots 92 and 93 was not supplied. However, a petition filed by the T and T Department was rejected by the Supreme Court of Pakistan vide their judgment dated 20-11-1986, the petitioner has pleaded to me for evacuation of the plots bearing survey Nos.92 and 93 owned by him. The order of the Supreme Court is very clear on the matter in respect of the Plot No.85 declaring that the plot is muslim property and not evacuee property. I have not been supplied any evidence that the Plots Nos.92 and 93 are muslim property. Since the dispute regarding the subject-matter has already been finally adjudicated by the Supreme Court therefore, I do not find it proper to intervene in the matter. The prayer for the eviction of the Agency from .The disputed plot cannot be granted by me. The petitioner has to seek further remedy from the competent Court."
4. I, therefore, found no mal-administration in the matter, the petition is rejected."
5. By Order of Acting Wafaqi Mohtasib, dated 16-7-1989."
(ii) "The case was heard by me at Regional Office Karachi on 26-12-1989. It was established that the Plots 92 and 93 of Deh Drigh Tapoo Malir are Muslim Property. This is affirmed by the cancellation order issued by the Settlement Authority vide No.DSC/Land/West/Karachi/ 104/83, dated 3-7-1983. 1 have already stated in my order, dated 16-7--1989 that these plots are owned by the petitioner. No doubt the said plots were allotted to Pakistan T and T Department by the Settlement Organization.
6. However, after the judgment of the High Court declaring these plots to be muslim property and the order of the cancellation issued by the Settlement Commissioner, the T and T Department have no grounds to hold on- these plots. The representative of the Department stated that the plots are being used for storage of material and there are no T and T installations on these plots to vacate these plots by the T and T Department. I, therefore, direct that the Plots 92 and 93 of Deh Drigh Tapoo Malir be vacated "and made over to the petitioner within 30 days as per Clause 11(2) of the P.O.I. Of 1993 which reads.
7. By Order of the Fed. Ombudsman dated 23-1-1990."
8. These orders also reveal that the parties had played a second round too before the Supreme Court in which petitions filed by T & T Department (previous name of the Corporation) was rejected by the Supreme Court vide judgment dated 31-12-1982.
4. In the present round of third bid, authorities of the Corporation have started a wave of suits to achieve their desired results soon after the last order of the OMBUDSMAN dated 23-1-1990: In this round following three suits were filed by the Corporation:---
(i) Suit No.87/94 filed on 28-12-1992
(ii) Suit No.733/93 filed on 8-11-1993 (Amended plaint) and
(iii) Suit No.337/94 filed on 7-5-1993 (hereinafter referred to as the first suit, the second suit and the present suit respectively)
9. The first suit was filed in 1992 but it was numbered in 1994. Reasons seem nothing except the lack of interest by the concerned persons of the Corporation who are entrusted with the job of protecting the rights of the Corporation.
10. Another important visible aspect of the present suit is embodied in para. 13 of the suit and same seems to be the foundations for moving application under Order VII, Rule 11 read with section 151, C.P.C. On behalf of three, out of six defendants. The body of this application contain two alternate prayers i.e. Rejection of plaint or dismissal of suit. The said portion of the application runs as under:- -- "On the grounds disclosed in the accompanying affidavit it is prayed on behalf of the defendants Nos.1, 2 and 4 that the Hon'ble Court be pleased to reject the plaint and/or dismiss the suit."
5. Before touching the law points raised in the accompanying affidavit filed in support of application under Order 7, Rule 11, C.P.C., I would like to deal first with the alternate prayers of "Rejection of plaint or dismissal of suit." A bare reading of Order VII, Rule 11, C.P.C. Leaves no ambiguity that scope of this provision of law- is limited to the extent of rejection of plaint. Therefore, prayer of dismissal as stuffed in the body of application moved under Order VII, Rule 11, C.P.C.
11. Cannot be granted by this Court especially in the circumstances of the case. If there had been no difference between "rejection" and "dismissal" then such two-fold prayer could be taken into consideration. But there is glaring difference between the two terms regarding their connotation with reference to their consequences. Rejection of a plaint does not raze the bases of suit. Result is thus obvious. If a plaint is rejected under any clause or clauses of Order VII, Rule 11, C.P.C., then result of such rejection would be that as if no suit was filed at all. Hence the plaintiff shall not be precluded from presenting a fresh plaint in respect of the same cause of action under Order VII, Rule 13, C.P.C. But in case of dismissal of suit a bar is created and the plaintiff shall be debarred from presenting, a fresh plaint in respect of the same cause of action. This difference between rejection of plaint and dismissal of suit can be further explained with the help of an example.
12. Suppose a suit is filed by plaintiff against an authority to whom some statutory notice was necessary to be given before filing the suit but the said notice was not sent. The defendant authority, on receiving the notice of the suit from the Court files an application under Order VII, Rule 11, C.P.C. If the plaintiff feels that no notice was necessary and the Court reaches a conclusion that notice was necessary, then the plaint shall be rejected. In such case the plaintiff can file a fresh suit after giving the said notice as he cannot be precluded from filing such suit. In other words an application under Order VII, Rule 11, C.P.C. Can directly rock the basis of plaint but not the suit. But at the same time it indirectly provides an opportunity to the plaintiff also to be cautioned against the consequences of rejection.
13. Position of dismissal of suit is different from rejection of plaint and it can be explained with the help of following example: Suppose plaintiff files a suit with certain claims. The defendant of the suit files written statement and raises preliminary objection that the suit is time-barred. The plaintiff does not agree with this contention. The Court frames an issue to decide this point. If after hearing the parties, the Court finally reaches a conclusion that the suit is time-barred and the suit is dismissed then the plaintiff is riot entitled to file a fresh suit on the same cause of action. Even, an application under section 151, C.P.C., which relates to inherent powers of Courts, for condonation of delay shall not serve any purpose because section 151, C.P.C. Comes into play only when there is no express provision of law.
14. Hence the same cannot override the damage caused to a suit due to delay and if the same is hit by limitation.
15. Notwithstanding to this difference between rejection and dismissal, a: discussed above, if a plaint was rejected on the ground of "res judicata" a; explained in section 11, C.P.C. Then rejection of plaint would amount to dismissal of suit because principle of res judicata puts a seal of finality on judicial decision between the same parties due to which the same issue cannot be reopened provided order was passed on merits are not on technicalities PLD 1977 SC 220. It is, there ore, most important to point out that the Court are required to look into the substance of a plaint rather than technicalities to determine whether or not res judicata can come into play. It was held in the case of Mir Afzal and others v. Dalandar and others reported in PLD 1976 AJ&K 26 by a Full Bench of Supreme Court comprising of Khawaja Muhammad Yusuf Saraf, C.J., Sardar Muhammad Sharif Khan and Raja Muhammad Khurshid Khan, JJ. That: "The Courts should look at substance rather than the technicalities to determine whether or not res judicata came into play. In my humble. Opinion, by its very nature, the rule of res judicata-ought to be strictly interpreted and unless the trial of a cause necessarily involves the reopening of a decision, the door should not be slammed. Finis litium was intended as a protective fortess and not as an indiscriminate hatchet."
6. Before touching the contentions of the learned Advocates, I would like to accumulate certain points of consideration, prayers of two suits arid Order II, Rule 11, C.P.C. In this para for ready references: An affidavit in support of application .Under Order VII, Rule 11; C.P.C. Was filed by Muhammad Arif Kasmani who is defendant No.2 and is also attorney of Abdul Sattar (Defendant No.1) and Shabbir Hussain (Defendant No.4). This affidavit contains the following grounds in support of contentions raised by the learned Advocate for the defendants. '
(i) "the suit is barred by Order 2, Rule 2, C.P.C. As prior to this suit the plaintiffs instituted Suit No.87 of 1994 on 28th December, 1992 but in the said suit they have not claimed the relief of possession except mesne profits, declaration and injunction. Another Suit No.733 of 1993 was again instituted by the plaintiffs on 15th February, 1993 which was amended on 8th November, 1993 seeking cancellation of the sale-- deeds dated 12th February, 1958 and 26th February, 1964. In the said suit the plaintiffs despite the fact that they were out of possession since 20th March, 1990 did not pray for the relief of possession and on the contrary sought injunction restraining the defendants not to interfere with their alleged possession."
(ii) "in case the plaintiffs were aggrieved with the orders of the Wafaqi Mohtasib, they could have made representation to the President of Pakistan within 30 days of the said orders. As no such presentation was made, hence the present suit is barred by the provision of Article 29 and section 30 of the Presidential Order 1 of 1983."
16. Apparently these are the main two grounds although a third ground related to Limitation Act was also inserted in the said affidavit. So far as the point related to Wafaqi Mohtasib as in sub-para (ii) above is concerned, I would deal with the same at some other place. So far as the points mentioned in sub-para (i) are concerned, they require reproduction of para. 13 of the present suit, prayers of the first suit and prayers of the second suit to explain the whole issue tersely but multum in parvo:---
(iii) PARA. 13 OF SUIT N0.337 OF 1994: "That the defendants 1 and 2 are in illegal and unauthorised possession of the Survey Nos.92 and 93, the gate wall/boundary wall in between the Plots 92 and 93 has also been demolished forcibly by the defendants 1 and 2 and thus the plaintiffs corporation suffered heavy financial loss and damages, the sensitive installations and the stores of the plaintiffs corporation have also been effected seriously. They have entered the Survey Nos.92 and 93 forcibly in the month of March 1990 and they are in illegal possession of the same without any lawful authority or title alongwith their men, agents, representatives and other persons and all are liable to be evicted/dispossessed by a decree of this Hon'ble Court:"
(iv) PRAYERS OF SUIT N0.87 OF 1994: "(a) For a declaration that the Transfer order dated 30-6-1974 is valid, subsisting and lawful and ,the same is not lapsed, nor liable to withdrawal or cancellation by the defendants 7 and 8 on any ground whatsoever.
(b) For a permanent injunction against all the defendants jointly or severally restraining them and their agents, servants and subordinates from interfering in any manner whatsoever whether directly or indirectly with the plaintiffs expansion work in the wireless station or any interference in any portion or part of the plots in possession in the official working of the plaintiffs corporation or their servants posted in the store organisation at the disputed plots of land.
(c) For damages of Rs.90 lacs (Rs.9000,000) as against the defendants jointly as well as severally for the loss harm caused to the plaintiffs corporation on account of interference in the peaceful possession of the plots by the plaintiffs corporation and for cancellation of the Plots Nos.92 and 93 without any notice or any interference of any one of the defendants in the Plot No.85 or any portion thereof.
(d) For continuing damages at the rate of Rs.200,000 per month from the date of cancellation of the plots/allotment order, dated 30,6-1974 without any notice or any substituted plot/plots to the plaintiffs corporation till the date of judgment and decree.
(e) For interest at 20 per cent per annum on the decretal amount from the date of decree until its satisfaction.
(f) May also award costs of this suit under section 35-A, C.P.C. To the plaintiffs corporation.
17. Note: The title of this suit contains the words "Recovery of Possession" but no such relief was sought in the prayers.
(v) PRAYERS OF SUIT N0.733 OF 1993:
(a) It is prayed that this Hon'ble Court may be pleased to cancel the sale-deeds dated 12-2-1958 and 26-2-1964 and declare that the sale --deeds are illegal, ultra vires and void ab initio and, no legal rights are conferred to defendants by virtue of these sale-deeds.
(b) To declare that the plaintiffs are in legal possession of Survey Nos.92 and 93, Deh Drigh, Tapo Malir, District Karachi East by virtue of Transfer Order, dated 30-6-1974 issued by the Deputy Settlement Commissioner, Karachi, and the same Transfer Order is still subsisting, legal and valid and is not liable to be interfered with by the defendants.
(c) To declare that the orders passed by the Defendant No.8 dated 2-2-1992 are illegal, ultra vires and without any jurisdiction.
(d) To grant injunction restraining the defendants not to interfere into the possession of the plaintiffs and cause no hindrance, obstacles or interference in the lawful possession of plaintiffs.
(e) To grant costs of the suit throughout and pass such other orders as deemed just and appropriate in the eyes of law.
18. It may also be advantageous to reproduce Order II, Rule 2, C.P.C. Which runs as under:
(vi) Order II Rule 2 C P C : Suit to include the whole claim: --(1) 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.
19. Relinquishment of part of claim.---
(2) Where a plaintiff 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.
20. Omission to sue for one of several reliefs.---
(3) 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, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.
7. From the contents of para. 13 and prayer of two suits as reproduced in paras. 6(iii) to 6(v) above it is evident that:
(a) After the second order of OMBUDSMAN dated 23-1-1990 reproduced in para. 3(ii) above possession of land in dispute being Survey Nos.92 and 93 went out of the hands of the Corporation and fell into the clutches of defendants, admittedly, in the month of March, 1990; may be by use of force as alleged. (underlining is mine as the date is most relevant for disposal of the application filed under Order VII, Rule 11, C.P.C.).
(b) The fact of dispossession in March, 1990 is admitted in the present suit but this fact is not mentioned in the first suit filed on 28-12-1992. Interestingly as pointed out in para. 6(iv) above, the title of the suit contain the words "Recovery of Possession" but no prayer was made for the same.
21. However, the words "Recovery of Possession" show that Corporations was not in possession of the property when the said suit was filed. It is notable that Suit No.87 of 1994 (the first suit) and Suit No.337 of 1994 (the third suit) appear to have been drafted by Mr. Akhlaq Ahmed Siddiqui, Advocate. '
(c) But during the pendency of first suit when the Corporation filed the-.Second suit on 8-11-1993 (Amended plaint) by getting the same drafted and filed through Ahmed Yousif A.I Rizvi, Advocate, it was claimed that the corporation was in possession of the suit property. The contradictory, stand was embodied in para. (b) and (d) of the suit prayers which run as under:---
(b) "to declare that the plaintiffs are in legal possession of Survey Nos.92 and 93.
(d) "to grant injunction restraining the defendants not to interfere into the possession of the plaintiff'.
22. If the corporation was in possession of the property in dispute on 8-11-1993 when the second suit was filed then contents of para. 13 of the present suit are totally incorrect and if the corporation was out of possession of the said land since March; 1990, as admitted in Suit No.337 of 1994, then prayers made in Suit No.733 of 1993 were totally misconceived, incorrect and false.
23. Note These conflicting prayers of the suits filed by the Corporation need no further comments as they are self exclamatory but it can be prayed on behalf of the citizens of Pakistan that the Chairman of the Corporation may be good enough to save the Corporation from such officers who are unable to give a correct picture of facts of cases to save/defend the rights of the Corporation directly or indirectly.
8. If justice in civil disputes had been a game of words, equipped with weapons of technicalities in their literal sense, the contentions of the learned Advocate for the defendants was sufficient to demolish the present structure of the suit without looking into other provisions of law.
24. But, contrary to the norms, tricks or tactics in criminal proceedings, justice in civil disputes is certainly not a battle of words in its literal sense. It involves struggle by the concerned and necessary parties for restoration of their deprived civil rights or in alternate for their compensation on the principles of natural justice. Therefore, interpretation of every provision of civil law must possess same spirit in it.
25. Notwithstanding to the conflicting prayers of - the three suits, as narrated in the above lines, I am of the view that rejection of plaint may or may not be fatal to survival of any living suit but injuries to be caused by the arrows of sub-rules (1) and (2) streakily hurled indiscriminately from the `bow' of Order II, Rule 2, C.P.C. By the use of force suppressed in Order VII, Rule 11, C.P.C. May create several complications proving to be hurdles in the treatment and cure of that suit. Courts are, therefore, required to apply sub-rules (1) and (2) of Order 2(2), C.P.C. Most carefully cautiously and judiciously by taking into consideration each and every point embodied in or glued with Order II, Rule 2 read with. Order VII, rule 11, C.P.C. Only those points, particularly adhered with the application moved by the defendants for rejection of plaint, are being considered necessary to be discussed in the forthcoming paragraphs because it would not be feasible to touch all other aspects of Rule 2 of Order II with reference to its scope, in this judgment.
9. The use of word "shall" in Sub-rules (1) and (2) of Order II(2); C.P.C. Seems to be in the nature of exception involving right of a party. Therefore, law p requires to construe the same strictly and has not to be lightly inferred. PLD 1985 Kar. 481. But this exceptionalism of construing the same strictly or not inferring lightly would not entail any Court to defeat the spirit of any other provision of the Code or depart from the established principles laid down by l the superior Courts to deal with all such matters cautiously.
26. By keeping in hand the beacon of caution as radiated in the above---lines, I would like first to touch the sub-rules in issue with reference to a term "cause of action". This term has its own import in the C.P.C. And importance with reference to Order VII, Rule 11, C.P.C. And Order II, Rule 2, C.P.C.
27. Because both these Orders with their respective rules are closely linked with the binding force of this term being common between the two Orders and inter-related for its application to decide the fate of any suit. On account of this proposition, it is evident that if a plaint is sought to be rejected on the strength of clause (d) of Order VII, Rule 11, C.P.C. Read with Order 11, Rule 2, C.P.C., then clause
(d) cannot be detached from clause (a) of Order VII, Rule II, C:P.C. On account of the term "cause of action".
28. The term "cause of action" relates to the facts or allegations which give rise to a claim or right or infringement of right of any plaintiff against certain defendants to enable a Court to grant relief 1991 SCM R 2030. Sub-rules (1) and (2) of Rule 2 of Order II, C.P.C. Would be attracted to hit any suit when omission or relinquishment of relief or reliefs flow out of t me cause of action by virtue of section 20, C.P.C. To find out whether the cause of action in different suits is the same or different, the concerned Courts are required to look into the proposed evidence appearing from the contents of plaints of the suits. If it appears that same evidence would be sufficient for deciding all the suits, then cause of action might be the same and if the proposed evidence in support of relief/reliefs in different suits is different, then cause of action would also be different PLD 1966 Kar.
29. 126 and PLD 1948 PC 131.1 have used the words "proposed evidence" in the above lines, which can be easily assessed from the contents of the plaints. Hence it is not necessary to record evidence in Courts to find out whether cause of action is the same or different because the proposed evidence reflected by the contents of suits in disputes, to most of the cases, would be sufficient to decide the nature of "cause of action". The object or purpose of putting bar on filing a fresh suit on the same cause of action by implementation or "imposition" of such provision seems nothing but to avoid splitting of claims and to prevent multiplicity of suits to save the defendants from being vexed for more than once for the same cause of action on the basis of maxims "nemo debt bis vexari pro una et eadem causa. Reference in this regard can be made to the cases reported in 1983 CLC 482, 1987 CLC 1332, PLD 1983 SC 344, AIR 1931 PC 229, AIR 1947 Lah. 210, AIR 1947 Lah. 102.
30. After going through the contents of different suits instituted by the Corporation I have no doubt in my mind that "cause of action" in Suit No.87 of 1994 filed in 1992 and the present suit filed in 1994 is the same. The title of Suit No.87 of 1994 contains the words "Recovery of Possession" but relief for the same was not sought in any of the prayers. Insertion of words "Recovery of Possession" in the title of Suit No.87 of 1994 (the first suit) is more than sufficient to show that property in dispute was not in possession of the Corporation. The present suit was filed basically for possession of the land in dispute which relief was available to be prayed in Suit No.87 of 1994 on the same set of evidence.
31. Therefore, omission or relinquishment of the relief of "possession" of the land in dispute in Suit No.87 of 1994 attracts Order II, Rule 2, C.P.C. To hit the foundations of the present suit on the ground of same cause of action because omitted or relinquished relief could not be agitated in the present suit. It may be interesting to point out the words "Recovery of Possession" are common in the titles of Suit No.87 of 1994 as well as in Suit No.337 of 1994. Thus, I have no doubt in my mind to believe that the relief of recovery of possession was barred under sub-rules (1) & (2) of Rule 2 of Order II, C.P.C. In the present suit because the same was omitted or relinquished in Suit No.87 of 1994, for the reasons best known to the Corporation or the learned Advocate for the Corporation who drafted the plaints of these suits. Thus contention of the learned Advocate for the defendants in assailing the present suit by moving an application under Order 7, Rule 11, C.P.C. On the bases of sub-rule (2) of Order 2(2), C.P.C. That omitted or relinquished prayer for possession of land in dispute could be made. In the first and the second suits has some force in it to, the extent of only first suit i.e. Suit No.87 of 1994 but contention of the learned Advocate with regard to Suit No.733 of 1993 does not seem to be forceful because in that suit, it was claimed that possession of the property in dispute was with the Corporation and, therefore, there was no question for bringing any prayer for recovery of possession in that suit. So far as Suit No.87 of 1994 is concerned, no doubt, prayer of recovery of possession was not made in that suit but this defect could be removed by the Corporation by filing an amended plaint with permission of the Court as "intention of recovery of possession was evident from its prayers to all such defects, technicalities to defeat the rights of contesting parties cannot be permitted to override the principles of natural justice.
32. If the Corporation had preferred this path before filing the Second Suit and/or the first suit then there would have been' no need to file the present suit. The present suit could be instituted if splitting of claim on the same cause of action could be encouraged by any provision of the Code.
33. According to my point of view, a window in the wall of Order II, Rule 2, C.P.C. Always remains open to get rid of the chains of bar of sub-rules (1) and (2), C.P.C. The same is being discussed in the next paragraph.
10. In spite of bar on filing fresh suit on the same cause of action, the words "except with the leave of Court" used in sub-rule (3) of Rule 2 of Order II provides an exception for filing a fresh suit on the same cause of action. I believe that Order XXIII, Rule 1 C.P.C. Appears to be closely related to Order II, Rule 2, C.P.C. Because the words "withdraws from a suit or abandons part of his claim "used in sub rule (b) of Order XXIII, Rule 1, C.P.C. Correspond to the words "omits to sue in respect of or intentionally relinquishes any portion of his claim "as used in sub-rule (2) of Order II, Rule 2, C.P.C.
34. Similarly the effect of words "with the leave of the Court used in sub-rule (3) of Order 11(2), C.P.C.
35. Appears to be the same as of words "grant of the plaintiff permission to withdraw from such suit or abandon such part of claim with liberty to institute a fresh suit" as used in clause (b) of sub-rule (2) of Order XXIII (1), C.P.C. Notwithstanding to the nature of independence of Order II(2), C.P.C. And Order XXIII (1), C.P.C. In their scope, the effects of both Orders in certain circumstances, might be the same. It may be pertinent to point out that powers of permitting any plaintiff to file a fresh suit is not limited to a situation as discussed above. There might be several other forms where bar under sub-rules (1) and (2) of Order II(2), C.P.C. Be operating but the orders of Court possessing force of sub-rule (3) of the same Order can override such hurdle. For example, dismissal of suit under Order 9, Rule 8, C.P.C. Also bars fresh suit under Order 9, Rule 9, C.P.C. Unless order of dismissal is set aside on an application if moved under the same section by showing sufficient cause of non- appearance. Same is the effect of dismissal under Order 22, rule 9(1), C.P.C. Subject to amendments introduced to rules 3 and 4 by Ordinance XII of 1972 and unless the order of dismissal is set aside under Rule 9(2) of Order 22, C:P.C., filing of fresh suit would remain barred. The use of word "shall" in Order 9, rule 9, C.P.C. Or in Order 22, Rule 9(2), C.P.C. For setting aside the dismissal order makes it imperative to set aside the order of dismissal if sufficient cause of non-appearance is evident from the application moved for the said purpose because law favours adjudication on merits and therefore Courts are not supposed to be strict to stick to- dismissal for 'non-prosecution but only in exceptional cases. Application of Order II, Rule 2, C.P.C. With its sub-rules would be attracted in all such cases. The effects of all the abovementioned provisions of law leave no doubt in enlightening this reality that the Courts must be very careful while exercising their powers under any of the sub-rules of Order II(2), C.P.C. Keeping in view the above proposition, the Corporation had several options open before it. The learned Advocate for Corporation could amend the plaint of Suit No.87 of 1994 by addition of the claim for recovery of possession which had been omitted in the prayer although mentioned in the title of suit. I think that it was a formal defect which could be removed with the permission of the Court by moving an application with an alternative relief to file a fresh suit and if the Court had granted any of the two reliefs, then the plaint of the present suit could not be clutched by sub-rules (1) and (2) but would have been cradled by sub-rule (3) of Order II(2), C.P.C. Similarly the Corporation could withdraw the suits with permission to file fresh suits on the force possessed by the competent Court under sub-rule (2) of Rule 1 of Order XXIII, C.P.C. Why the Corporation avoided to avail any of the options and left the present suit assailed by sub-rules (1) and (2) of Order II (2), C.P.C., it must be known to the Corporation or the learned Advocate for the Corporation but its consequences are evident because the Courts are helpless to heal the injuries caused to a plaint by poisonous arrows of sub-rules (1) and (2) of Order II(2), C.P.C.
36. At a stage when it is breathing its last on account of negligence by the Corporation to cure the bleeding plaint in time from being rejected in spite of availability of several treatments including the harmonization of conflicting prayers.
11. The use of word "intentionally" in sub-rule 2 of Order II(2), C.P.C. Is another factor which requires every Court not to ignore its real import with reference to its literal as well as its judicial sense before smashing any plaint of a suit on the basis of sub-rule to face rejection.
37. I am of the view that the plaintiff can be charged of omission or intentionally relinquishment of any claim in a suit when he is found to be aware of the facts of -those claims which were omitted or relinquished. In spite of possessing knowledge about any claim to be prayed for seeking relief, if a plaintiff omits or relinquishes that claim in a suit, provided the same was, available at the time of instituting that suit, then Courts are left with no other alternative but to apply sub-rule (2) of Order (((2), C.P.C. Strictly if exception under sub-rule (3) of the same Order was not available to-the plaintiff. But the knowledge, in all such cases, must be actual and not merely constructive AIR 1917 Lah. 19, AIR 1923 All 230, AIR 1936 Mad. 699 and AIR 1918 Nag.
158. Although it has been observed by certain Courts in several cases that when actual knowledge exists then omission or relinquishment of claim in former suit/suits accidentally or due to mere oversight will not exempt the plaintiff from the bar created by Order II, Rule 2, C.P.C. AIR 1941 Pat. 37 yet, with profound respect for all such Hon'ble Judges, I am of the view that such observations seem to be contrary to the concept of "intentionally" because omission or relinquishment of claim accidentally or due to oversight imports unintentional act of a person and rejection of plaint due to such act may be against the principles of natural justice.
38. Testing the application of in issue under Order 7, Rule 11, C.P.C. On the touch-stone of this proposition, it can be presumed from the words "Recovery of possession" used in the title of Suit No.87 of 1994 that plaintiff had the knowledge of dispossession of the property in dispute. Although this presumption could be rocked on account of the stand taken in the second suit that possession of the property was with the Corporation yet the present suit demolished that stand on account of admission of dispossession in an unambiguous manner in para. 13 of the Suit as referred in para. 6(iii) above.
12. Other factors which need attention of Courts, while dealing with the sub-rules of Order II(2), C.P.C. To reject any plaint, relate to:
(i) Jurisdiction of Courts; and
(ii) Status of parties.
39. These two factors are very simple and can be summarised as under:--- If a suit is filed in a Court which has no jurisdiction to entertain that suit, then any decision or judgment pronounced by that Court would be nullity in law. In all such cases bar contained in sub- rule (2) of Order I42), C.P.C. Would not be applicable.
40. Similarly the said sub-rules would not be attracted in the cases when application under Order VIII, Rule 11, C.P.C. Was filed by proforma defendants or by a party wrongly impleaded in the suit.
41. Reference in this regard can be made to the cases reported in PLD 1977 Kar. 256.
42. Unfortunately, in the present case, these two simple factors have taken complicated shape on account of implicating Wafaqi Mohtasib (Ombudsman) as one of the defendants in two suits and, therefore, these two factors are being dealt in detail to some extent.
43. So far as the question of jurisdiction is concerned, it has to be regulated by sections 16 to 20 read with section 9, C.P.C. By taking into consideration the scope of different types of jurisdictions such as territorial, pecuniary or special/exclusive jurisdiction etc. If any suit is filed by a plaintiff in a Court having no jurisdiction to entertain the same or has lost jurisdiction at any stage then the said Court shall return the plaint under Order VII, rule 10, C.P.C. So that the same be presented in the Court in which the suit should have been instituted. However, by virtue of section 120, C.P.C. Restriction contained in sections 16, 17 and 20 are inapplicable to the High Court in the exercise of its original civil jurisdiction. If any Court is incompetent to entertain any plaint then any decision given by that Court shall be nullity in the eyes of law.
44. The Corporation at the time of instituting different suits adopted very interesting stand regarding jurisdiction of the Mohtasib. When the Corporation filed the first suit i.e. Suit No.87 of 1994 although the Ombudsman was made defendant yet no relief was sought against his orders reproduced in para. 3(i) and 3(ii) above. In other words, the Ombudsman was not treated to be a necessary party at that time and moreover, his orders remained unchallenged.
45. When the Corporation filed second suit i.e. Suit No.733 of 1993, Federal Ombudsman was made one of the defendants at Serial No.8 and the relief sought against him was to get his orders declared as "illegal, ultra vires and without any jurisdiction".
46. When the Corporation filed the present suit, Federal Ombudsman was made one of the defendants at Serial No.5 and the relief sought against him was to get his orders declared as "nullity in the eyes of laws, illegal and without jurisdiction.
47. On account of the prayers made against the Ombudsman regarding his jurisdiction, it has become incumbent to decide the factor of jurisdiction of the Mohtasib and making him a party as defendant. No doubt, it was claimed by the Corporation that orders of the Ombudsman were without jurisdiction. But how? The plaints are silent on this assertion. Mere drumming of any claim does not put a seal of right on any claim. Notwithstanding to this drummed claim, this reality cannot be denied that orders were passed by the Ombudsman and no suit, prosecution or other legal proceedings can be taken against him because of section 30 of Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1993 (hereinafter referredto as the Ombudsman Order) which runs as under:--- "30. Immunity.-No suit, prosecution or other legal proceeding shall lie against the Mohtasib, his Staff, Inspection Team, nominees, member of a standing or advisory committee or any person authorised by the Mohtasib for anything which is in good faith done or intended to be done under this Order."
48. Besides the abovementioned "Immunity" this Court seems to be barred from entertaining the suits against the orders of the Ombudsmn as is evident from Article 29 of the Ombudsman Order which runs as under:--- "29. Bar of jurisdiction.---No Court or other authority shall have jurisdiction---
(1) to question the validity of any action taken, or intended to be taken, or order made, or anything done or purporting to have been taken,, made or done under this order; or,
(2) to grant an injunction or stay or to make any interim order to any proceedings before, or anything done or intended to be done or purporting to have been done hy, or under the orders or at the instance of the Mohtasib."
49. The only way-out, to get rid of the effects of Articles 29 and 30 of the Ombudsman Order has been provided in Article 32 of the same Order which runs as under:--- "32. Representation to President.---Any person aggrieved by a decision or order of the Mohtasib may, within thirty days of the decision or order, make a representation to the President, who may pass such order thereon as he may deem fit."
50. It is interesting to point out that the learned Advocate, in his brief notes dated 10-4-1995, submitted, rather admitted and conceded in writing that: "In addition to the above, the order dated 2-2-1992 passed by the Federal OMBUDSMAN, Karachi, and 23-1-1990,whereby T&T/P.T.C./C.T.S., in compliance of the Federal Ombudsman's order handed over the possession of the entire Plots/Survey Nos.92 and 93 to the above named Muhammad Arif.
51. No appeal or representation was made to the President of Pakistan by the then T & T Department or the C.T.S., and so the said order of the Federal Ombudsman remained absolutely unchallenged since 23-1-1990 by which the plaintiff/PTC is aggrieved and lastly filed the suit/suits as described above"
52. Note: The underlined date is not correctly quoted. It must be 16-7-1989.
13. An objection with reference to the jurisdiction of Ombudsman can be raised by saying that Civil Procedure Code can be made applicable only to the suits in the Civil Court and, therefore, any order made by the Ombudsman will not attract the concept of decision in a suit in its true spirit.
53. This objection basically pushes this Court to find out what a suit is in its real sense. The word "suit" has been interpreted in large number of judgments and the briefest summary of all those judgments is that "the word "suit" includes all those terms and proceedings where civil rights are adjudicated. Besides general suits, by virtue of section 141, C.P.C. Proceeding in Revenue Court having powers of Civil Court or proceeding in writ jurisdiction and under the Companies Act before the High Court also adjudicate the civil rights, therefore, they are also attracted by the provisions of the Code. Reference in this regard can be made to cases reported in 9 C 295 (P.C.); PLD 1910 SC 1; PLD 1965 SC 254; PLD 1957 Lab. 706; PLD 1979 Lab. 564; PLD 1969 Lab. 1050 and AIR 1936 A 826. But proceeding in executions, restitutions or arbitrations would not be attracted by the said provision as was held in series of cases such as reported in NLR 1979 Civ. 616, AIR 1918 Pat. 346, AIR 1935 Cal.
54. 206, AIR 1948 Pat. 313 and AIR 1964 Cal. 545.
55. Perusal of "Establishment of the Office of Wafaqi Mohtasib K (OMBUDSMAN) Order 1983" (PLD 1983 Central Statutes 17) reflects that a Mohtasib appointed under Article 3 of the said Order possesses executive as well as judicial powers. Article 14 of the said Order reveals that the Mohtasib shall have the same powers as are vested in a Civil Court under Code of Civil Procedure, 1908 (Act V of 1908) in respect of summoning persons, examining them oath, compelling the production of documents, receiving evidence on affidavits, issuing commission for the examination of witnesses etc. If any person is aggrieved by a decision or order of the Mohtasib he may, within thirty days of the decision or order, make a representation to the President who may pass such order thereon as he may deem fit under Article 32 of the said Order.
56. It appears that Article 32 of the said Order was not taken into consideration by the Corporation or its Advocate at the time of drafting the present suit because admittedly no representation was made by the Corporation to the President under Article 32 of the said Order. In these circumstances, it may not be possible for the plaintiff to get itself exempted from the clutches of bar embodied in Articles 29 and 30 of the Ombudsman Order, 1983 because the sanctity of the orders made by the Ombudsman has been protected to such extent that no Court, which includes the High Court too, can entertain any suit against those orders unless representation is made to the President of Pakistan.
14. The attack of joint forces of Order 11, Rule 2, C.P.C. And Articles 29 and 30 of the Ombudsman Order, 1983 in support of Order VII, Rule II, C.P.C. With weapons of "same cause of action" and other factors on the fortress of present suit could not save its plaint from being badly affected due to the weaknesses left in construction of former suits on account of omission and relinquishment of relief for recovery of possession. It is irony that the. Corporation kept the diseased bodies of former suits unattended, unprotected and untreated although several treatments were available in the shape of "leave of the Court" to cure the said suits to save the plaint of present suit from being rejected.
57. Application under Order VII, Rule II, C.P.C. Is allowed but with relief of rejection only as prayed and sought. Resultantly the plaint in suit No. 337/94 is rejected but without dismissal of suit and with no order to cost.