1. ' MUNAWAR AHMED MIRZA, C.J.---This appeal is directed against judgment and decree dated 28-2- 1994, passed by learned Senior Civil Judge, Quetta. Relevant facts briefly mentioned are that respondent Hashim Khan had opened a current account No, 985 with Jinnah Road, Branch of National Bank at Quetta. It is the case of respondent that in ordinary course of business he has been depositing various amounts on the basis of pay-in-slips; counterfoils whereof were retained by him. In this manner respondent between 31-5-1991 and 7-5-1981 deposited an amount of Rs,34,24,918 with appellant- Bank through 35 pay-in-slips validly issued by Bank Manager and other officials in ordinary course of business. Manager of National Bank namely; Bahadur Khan who was posted in said Branch during relevant period, was found responsible for misappropriating huge amounts from National Bank. Petitioner lodged his claim with National Bank, authorities and eventually filed civil suit on 11-12-1985 seeking following reliefs which are specifically mentioned in para. 6 of present plaint, and is reproduced below:-- "The plaintiff thus begs to pray for grant of decree against the defendant in the terms as under:--
(a) The defendant be directed to allow the credit of 35 pay-in-slips for the sum of Rs,34,24,980 in Account No,CA-985 with its Jinnah Road Branch at Quetta.
(b) And/or a decree for payment of Rs, 34,24,980 be granted in favour of plaintiff and against the defendant."
2. ' Learned Additional District Judge-I, Quetta granted an ex parte decree in favour of respondent vide judgment dated 9-10-1988 which was challenged by appellant-Bank before High Court through R.FA. No, 2/89. The appeal was accepted on 10-6-1989, directing setting aside of aforementioned ex parte decree. Respondent preferred petition for leave to appeal before Hon'ble Supreme Court, which was ultimately dismissed on 5-8-1991. It may be seen that after remand negotiations for compromise commenced and appellant vide letter dated 10-10-1991 agreed to pay claim to the tune of Rs,24,40,110 subject to fulfilment of four conditions. Letter Exh.P/7 is reproduced below in extenso:-- "National Bank of Pakistan Principal Office, Quetta.
3. Our Ref: POQ/FF/MAJ/CLAIM/279 Date 10-10-1991 Mr. Hashim Khan, C/o Gul's Inn, Quetta.
4. Dear Sir, ' SETTLEMENT OF YOUR ACCOUNT NO. 985 AT MA. JINNAH ROAD BRANCH, QUETTA.
5. ' With reference to your above claim we have to advise that your claim for Rs,24;40,110 (Rupees Twenty-four lacs forty thousand one hundred ten only) has been approved by our Head Office for payment.
6. ' The payment will be released subject to your fulfilment of the following conditions:
(1) Production of all receipts in original.
(2) Withdrawal of suit filed by you.
(3) Letter of satisfaction.
(4) Execution of Indemenity on Bank's prescribed form. Yours faithfully, REGIONAL HEAD."
7. ' Respondent accepted the conditions vide Exh. D/22 and withdrew the suit. Letter of acceptance issued by respondent Hashim Khan is reproduced below:-- "The Regional Head, National Bank of Pakistan, Principal Office, Quetta. Dear Sir, RE: PAYMENT OF MY CLAIM FOR RS.24,40,110 A/C 985 WITH MA. JINNAH ROAD BRANCH, QUETTA.
8. With reference to your letter No,POQ/FF/MAJ/CIAIM 279, dated 10-10-1991, I am enclosing the following:-
(1) All original receipts (20)
(2) Court order (in original) regarding withdrawal of suit filed by me against the bank.
(3) Indemnity bond will be submitted to the Branch before payment. Further, I confirm that the above claim has been settled in my favour to my full satisfaction. Yours faithfully, (Hashim Khan), C/o Guls Inn, Quetta."
9. Consequently suit for recovery of Rs,34,24,980 was withdrawn on 3-11-1991. The order of Court in that behalf is also reproduced here:-- "ORDER ' Counsel for plaintiff Mr. Abdus Sam ad Dogar, Advocate present. Counsel for defendant Mr. Kailsh Kohli, Advocate present. Alongwith application for withdrawal of the suit the plaintiff has filed application for ante-date, the counsel for defendant has no objection on any of the application as the defendant vide letter dated 10-10-1991 has agreed to pay the claim of plaintiff on condition specified in the letter which includes withdrawal of the suit hence by the consent of counsel of defendant the suit is dismissed as withdrawn. Parties to bear their own cost. File after completion be consigned to record."
10. ' In pursuance of said settlement, payment for agreed amount of Rs,24,40,110 was made to respondent Hashim Khan on 20-11-1991. Details in that behalf are mentioned in para. 8 of the plaint and are also reproduced below:-- "8. That since prior to institution of case the plaintiff had already filed a claim with the Bank on the- basis of 35 pay-in-slips not credited to his account and when the suit filed by the defendant-bank for recovery of Rs,23,58,080 having been dismissed on 10-5-1990 the Bank proceeded to settle the matter of the amount claimed in the suit outside the Court. The pay-in-slips of the plaintiff were examined and the defendant by means of their letter No, POQ/FF/MAJ/CLAIM/ 279 dated 27-6-1991 informed the plaintiff that his claim has been scrutinized and has been sent to their head office for approval of Rs,24,40,110 and the decision with regard to payment or otherwise will be communicated to him on the receipt thereof from their head office copy of said letter is attached as Annex. `E'. The defendant informed the plaintiff vide their letter No, POQ/FF/MAJ/Claim/279 dated 10-10-1991 that out of his claim an amount of Rs,24,40,110 has been approved by the head office and the payment will be released subject to fulfilment of the following conditions:--
(i) Production of all receipts in original;
(ii) Withdrawal of suit filed by you;
(iii) Letter of satisfaction;
(iv) Execution of Indemnity on Bank's prescribed form.
(v) Copy of letter is attached as Annex. 'F'. This was the stage of time when the plaintiff became aware as to what liability has been accepted by the Bank; in pursuance of letter dated 10-10-1991 the plaintiff withdrew his suit which was filed for recovery of Rs,34,24,980 in respect of his claim based on 35 pay-in-slips on or about 2-11-1991. The payment of Rs,24,40,110 was made to the plaintiff on or about 20-11- 1991 by crediting the said amount in the account of plaintiff being maintained by the Bank in its Jinnah Road Branch, Quetta."
11. ' However, after receipt of said amount, respondent claimed payment of Rs,28,47,720 for blocking the amount calculating loss at 8% per annum. Consequently the suit praying for recovery of Rs,28,47,720 alongwith interest at the prevailing banking rate by way of damages and compensation was insisted before Civil Judge Ist Class, Quetta on 14-9-1992 seeking following reliefs:-- "It is accordingly respectfully prayed that a decree may kindly be passed in favour of plaintiff and against the defendant on the following terms:--
(i) For a sum of Rs,28,47,720 alongwith interest/profit at the rate of 14% per annum with quarterly rests with effect from 1-11-1991 till the realization of decretal amount.
(ii) For an interest at the rate of 6% per annum with quarterly rests over the amount of Rs,24,40,110 for the period the amount remained blocked with the defendant-bank.
(iii) For damages/compensation of Rs, ten lacs on account of mental torture; cost of the suit be also awarded.
(iv) Any other relief as may be deemed fit and appropriate in the circumstances of the case be also granted, in the interest of justice."
12. ' Appellant-Bank resisted the claim and filed detailed written statement on 21-11-1992. It was pleaded that suit was barred by principle of constructive res judicata and provisions contained in Order II, rule 2 read with section 12 (1), C.P.C. It was asserted that original claim was filed for payment of Rs,34,24,980 but on settlement, regarding total satisfaction of claims due to respondent Hashim Khan and withdrawal of suit an amount of Rs,24,40,110 (Rupees twenty-four lacs, forty thousand one hundred and ten has been paid on 20-11-1991 it was contended that after withdrawal and total satisfaction of the claim fresh suit was not maintainable. Learned trial Court keeping in view pleadings of parties framed following issues:--
(1) Whether the suit is hit by the principle of res judicata?
(2) Whether the suit is barred by Order II, rule 2, C.P.C.?
(3) Whether the plaintiff has deposited an amount of Rs,28,47,720 with the defendant in its M.A.
13. Jinnah Road, Branch Quetta?
(4) Whether the provincial legal committee was legally competent to approve the claim of plaintiff?
(5) Whether the plaintiff is entitled for the amount claimed for alongwith interest at the rate of 6% per annum with quarterly rests for the period for which amount remained blocked with the defendant?
(6) Whether any mental torture has been caused to the plaintiff, if so, whether the plaintiff is entitled for damages of 10 lacs for the said torture?
14. Oral and documentary evidence was led by parties and eventually learned trial Court rejected claim for damages on account of mental torture arising from Issue No,6, it however, granted decree in favour of respondent against appellant-bank by means of judgment dated 28-2-1994 in the following terms:-- "RELIEF: ' As such the plaintiff has proved his case and issues Nos.3 to 5 are settled in his favour, thus the suit of the plaintiff is decreed as that plaintiff is entitled for a sum of Rs,28,47,720, alongwith interest/profit at the rate of 14% per annum with quarterly rests with effect from 1-11-1991 till today i,e. 28-8-1994. Further he is entitled for an interest at the rate of 6% per annum with quarterly rests over the amount of Rs,24,40,110 for the period the amount remained blocked with the defendant- Bank. The defendant is directed to pay the said amount to the plaintiff. Decree Sheet be prepared, file after completion be consigned to record. Parties are left to bear their own costs.
15. ' The above judgment and decree has now been challenged through present appeal.
16. ' Mr. Tariq Mehmood, learned counsel for appellant has emphatically raised following contentions:-
(i) That any party to suit when entitled to claim more than one reliefs, he may sue for all or any such relief, available to him. However, if any relief is not claimed while instituting the suit; same is deemed to have been relinquished.
(ii) Settlement of dispute includes all benefit which directly or indirectly may be flowing out of main claim, therefore, suit for compensation or interest on the basis of original claim after dispute having been compromised cannot be entertained.
(iii) Withdrawal of suit operates as relinquishment of total claim, and fresh suit in respect of said cause of action or anything flowing out of the same is totally untenable and operates as constructive res judicata.
(iv) Amounts of interest awarded by. Trial Court is contrary to section 34, C.P.C.
17. ' Whereas Mr. H. Shakeel Ahmad, opposing the appeal has canvassed that:-
(i) Cause of action for compensation claimed in suit had accrued when liability for payment to the tune of Rs,24,40,110 was admitted by appellant-Bank. Therefore, relief regarding compensation could not be simultaneously claimed in previous proceedings.
(ii) Objection concerning limitation does not arise, because neither this point was raised nor emanates from the controversy culminating in present appeal.
(iii) Withdrawal of suit was agreed for settlement of amount payable by appellant-Bank on the basis of pay-in-slips. Whereas consequential liabilities regarding compensation arose when payment of principal amount was accepted by the appellant-Bank. Therefore it does not debar respondent from claiming compensation being an independent relief. Section 34, C.P.C. Is not applicable because, compensation for blocking the amount factually due to respondent was claimed which has no relevancy with interest.
18. ' We have carefully considered the arguments advanced by learned counsel for parties in the light of available record and case-law. Firstly we may examine basic principle, whereby it is obligatory to include whole claim and causes of action in the same suit as contemplated by Order II, Rule 2, C.P.C. Below:- "Order II rule 2, C.P.C.:
(1) 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.
(2) Relinquishment of part of claim.--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.
(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, except with the leave of the Court to sue for all such reliefs, he shall not afterwards sue for any relief so omitted."
19. Bare reading of above provision clearly discloses that failure or omission to include any of the reliefs operates as relinquishment of such claim. It is essential that party instituting proceedings should include all reliefs flowing out of main grievance otherwise omission would be fatal. It therefore, becomes imperative for the plaintiff to assert claimable reliefs concerning main grievance or cause of action. However, if any such relief which flows out of basic grievance is not claimed or omitted, then such party stands precluded from agitating those reliefs subsequently.
20. Primary object of said provisions is to avoid splitting of claim and restrict multiplicity of litigation. It would be profitable to reproduce below principle enunciated by reported judgments: "(i) Abdul Hakim and 2 others v. Saadullah Khan and 2 others PLD 1970 SC 63: ' The expression "cause of action" in Order II, rule 2, C.P.C. Means the cause of action for which a suit is brought. In order that the cause of action for the two suits may be the same, it is necessary not only that the facts which would entitle the plaintiff to the right claimed must be the same but also that the infringement of his right at the hands of the defendants complained against in the two suits, must have arisen in substance out of the same transaction. In considering the application of this bar, regard is to be had to the allegations in the two suits without reference to the defence that may be set up by the defendants. As laid down by their Lordships of the Privy Council in Muhammad Khalil Khan and others v. Mahbub Ali Mian and others (PLD 1948 PC 131) "the bar under Order II, rule 2 refers entirely to the grounds set out in the plaint as the cause of action or, in other words, to the media upon which the plaintiff asks the Court to arrive at a conclusion in his favour". A rought test although not a conclusive one is to see whether the same evidence will sustain both suits which would be the case if both the suits are founded on continuous and inseparable incidents in the same transaction. The question, however, is to be examined in substance and not merely on from as the cause of action in the two suits may be found to be the same, in spite of the facts alleged not being exactly identical in the two cases. It is not open to the plaintiff to split up the parts really constituting the same cause of action and file different suits in respect of them-In other words, a plaintiff must ask for all his reliefs which flow from the grievances caused to him by the infringement of his rights by the defendant in the course of the same transaction, but he cannot and is under no obligation to add to his grievances which did not occur in that transaction."
(ii) PLD 1983 Kar. 200 (M.K. Abbasi v. United Bank Ltd.).
21. ' Order II, Rule 2, C.P.C. Provides that if the plaintiff omits to sue for all the claims and the reliefs to which he is entitled on a cause of action then the plaintiff would not be entitled afterwards to sue in respect of the portion of claim so omitted or relinquished. But where the plaintiff is entitled to more than one relief in respect of the cause of action and fails to seek all the reliefs then he can ask for it only with leave of the Court. The provisions of Order II, rule 2 therefore clearly distinguished between claim and relief. A claim once omitted or relinquished cannot be made subject-matter of a subsequent suit on the same cause of action. In case a relief is omitted the plaintiff would be precluded from afterwards suing for any relief so omitted. However Order II, rule 2(3) provides an exception and if the omission is with the leave of the Court then this bar will not apply. The bar provided by Order II, Rule 2 shall apply where the previous and subsequent suits are based on the same cause of action. Reference can be made to Muhammad Khalil Khan and others v. Mahboob Ali Mian and others (PLD 1948 PC 131), Abdul Hakim v. Saadullah Khan (PLD 1970 SC 63) and AIR 1935 Lah.
672. Another condition for applicability of Order II, Rule 2, C.P.C. As held in PLD 1970 SC 63 is that in both the suits the parties should be same. It is thus well settled that the law does not permit splitting of claim arising out of the same cause of action, as a party cannot be vexed twice for the same cause and it will avoid multiplicity of suits."
22. The instant case relates to compensation for blocking amount due to respondent from appellant.
23. Obviously it is interconnected with main claim. The cause of action concerning payment of principal amount and compensation for blockade or interest relating to said amount could be simultaneously claimed. It was certainly not dependent upon acceptance of claim by respondent.
24. Factum of compensation if any had accrued when amount was allegedly withheld, The objections raised by learned counsel for respondent attempting to show that cause of action arose after liability on the basis of pay-in-slip was approved, by appellant-bank is not only far-fetched but totally misconceived.
25. ' Learned counsel for respondent has relied upon following reported cases:--
(a) AIR 1923 Patna 575: First suit was filed for compulsory registration of property. Subsequent claim for possession of said property was maintained.
(b) AIR 1927 Madras 273: First suit possession based on sale-deed whereas second suit relating to breach in the terms of sale-deed.
(c) AIR 1930 Lah. 688: ' Contract for repairs was not permitted. Suit for specific performance failed. But subsequent claim for damages including misappropriation of property held not barred.
(d) AIR 1930 Allahabad 116: "It is clear from what I have said above, that it would be unnecessary to prove the same facts in both these cases and it is equally clear that the evidence which would suffice to enable the plaintiff to obtain a decree in both suits is not the same. As regards the case quoted above, it is laid down there that; 'an action against a general agent, simply on the allegation that he has received money on account of the principal without remitting it to the latter, is not sustainable because the facts stated do not constitute a cause of action, it being alleged that there are grounds for believing that the money so received has not been disbursed on the plaintiffs account, but misappropriated by the agent.
26. ' This was the allegation in the first case, and on the authority of this case it is clear that the first case did not disclose a cause of action. It is, therefore, clear that the causes of action in both these cases cannot be the same and therefore, Order 2, Rule 2(3) does not apply. The appeal is dismissed with costs."
(d) AIR 1933 Lah. 1017: Suit for declaration to title of property dismissed. Subsequent suit for refund of purchase money held maintainable.
27. (0 AIR 1936 Madras 699: ' In this case effect concerning conscious omission to include properties claimable, in the same suit have been considered.
(g) PLD 1981 Lah. 623: "17. On Issue No, 2, it was submitted on behalf of the appellants that the finding of the trial Court that the present suit was not barred under Order II, rule 2, C.P.C. Was based on the erroneous assumption that the other suit had been filed later in time. Actually the other suit was filed on 17-12- 1965 and the present one on 14-1.1-1967.
18. There is no doubt that the other suit was brought much earlier, but the provisions of Order II, rule 2, C.P.C. Are still not attracted because the previous suit was based on altogether a different cause of action. The previous suit under section 53 of the-Transfer of Property Act, was, brought for the benefit of all creditors and the cause of action for that suit arose on 10-6-1964 when Siraj Din executed a sale-deed in favour of the appellants to defeat his creditors. The cause of action for the present suit arose on 25-2-1965 when the agreement to sell was made. There is, therefore, no question of the present suit being barred by the provisions of Order II, rule 2, C.P.C. Issue No, 2 is decided accordingly."
28. ' With respect it is observed that above reports have absolutely no applicability to facts of instant case, where the relief of interest or compensation is directly linked with payment of amount by appellant-Bank, and could not be split-up.
29. ' Now reverting to next aspect, it may be seen that during previous suit, payment was made subject to conditions contained in letter Exh. P/7 dated 10-10-1991 already reproduced above. Respondent gave reply vide Exh. D/22 and applied for unconditional withdrawal subject to payment of Rs,24,40,110 towards full satisfaction of his claim. The order of withdrawal passed by trial Court on 3- 11-1991 further confirms that withdrawal simpliciter was without granting permission to file fresh suit.
30. Therefore, on such withdrawal under C Order XXIII, Rule 1 (3), C.P.C. Party stands precluded from instituting any fresh proceedings concerning same subject-matter or part thereof. Provisions of Order XXIII, rules 1 and 2 are self-explanatory however it would be helpful to reproduce the same here:-- "1. Withdrawal of suit or abandonment of part of claim.--(1) At any time after the institution of a suit the plaintiff may, as against all or any of the defendants, withdraw his suit or abandon part of his claim.
(2) Where the Court is satisfied--
(a) that a suit must fail by reason of some formal defect, or
(b) that there are other sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or abandon such part of a claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of a claim.
(3) Where the plaintiff withdraws from a suit, or abandons part of a claim, without the permission referred to in sub-rule (2), he shall be liable for such costs the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim.
(4) Nothing in this rule shall be deemed to authorise the Court to permit one of several plaintiffs to withdraw without the consent of the others."
2. Limitation law not affected by first suit.--In any fresh suit instituted on permission granted under the last preceding rule, the plaintiff shall be bound by the law of limitation in the same manner as if the first suit had not been instituted."
31. Besides, undoubtedly payment of rupees 24,40,110, was made in full and final settlement of total liabilities, accruing in connection with deposit made by respondent with appellant-bank. Since originally neither compensation or interest was claimed, nor while making settlement any such demand was put-forth, therefore, subsequent suit for compensation regarding blockade of money or interest pertaining to original amount is patently ill-founded.
32. ' Without prejudice to above, it may be seen that suit culminating in present proceedings was instituted on 14-9-1992, which related to compensation calculated on the basis of 8% upon amount deposited by respondent during 1981-83 through various pay-in-slips. It is not understandable what for additional 6% interest was claimed in suit or has been granted by the trial Court. Learned counsel for respondent himself felt difficulty to justify the same.
33. ' Now examining the objection concerning bar of limitation, apparently compensation related to period commencing from year 1983 when amount deposited by respondent was allegedly blocked.
34. Whether Article 60 or Article 115 of Limitation Act is applied, ex facie compensation beyond three years from institution of suit would be expressly barred by time. This is well settled that plaintiff must satisfy the Court that suit did not suffer from limitation even if objection has not been raised.
35. It would be profitable to refer principle of law contained in PLD 1985 Supreme Court 153 (Hakim E Muhammad Buta and another v. Habib Ahmed and others) and PLD 1993 Supreme Court 147 (Province of the Punjab through Member, Board of Revenue (Residual Properties) v. Muhammad Hussain through Legal Heirs). Thus it was responsibility of plaintiff to explain how compensation for a period beyond three years, when it is not legally due could be claimed. Unfortunately trial Court has awarded the decree by glaringly overlooking above-discussed aspects of the case.
36. Thus considering all the factors we unhesitatingly hold that trial Court has recklessly contravened essential requirements and basic principles of law, while granting decree. Accordingly appeal is accepted, impugned judgment/decree dated 18-2-1994 passed by learned Senior Civil Judge, Quetta is set aside and suit filed by respondent directed to be dismissed. Parties are however, left to bear their own costs.
37. ' This appeal was decided by short order of even date and here are reasons for the same.