1. This revision application has been filed against the orders passed by the District Judge, Hyderabad in Civil Appeal No. 19 of 1994 maintaining the orders passed by the Senior Civil Judge, Hyderabad in Civil Suit No.95 of 1992 rejecting the plaint under Order VII, Rule 11, C.P.C.
2. Briefly the facts relevant for the purposes of this revision application are that the present applicant had filed the said civil suit seeking the following relief---s---
(1) That the plaintiff be declared as legal owner of the house and its construction situated at Plot No.477, Makrani Para Unit No.7, Latifabad, Hyderabad and further it may be declared that the agreement of re-sale, if any, is a forged one and has no legal effect in the eye of law.
(2) That the defendant No.2 be permanently restrained from dispossessing plaintiff from the house as well as Plot No.477, Makrani Paara, Unit No:7, Latifabad, Hyderabad.
(3) Costs of the suit be borne by the defendants.
(4) Any other relief this Hon'ble Court deem fit and proper be granted to the plaintiff."
3. The suit was contested by the respondent No.2. An application under Order VII, Rule 11, C.P.C. Was filed by the respondent for rejection of the plaint and the learned Senior Civil Judge was pleased to reject the plaint on the ground that admittedly a suit was previously instituted being Suit No.134 of 1990 which was dismissed under Order XVII, Rule 3, C.P.C. And thus the doctrine of res judicata was applicable to the suit. The said order was challenged in the above said Civil Appeal before the District Judge who maintained the said order and also held that even if it be held that the provisions of section 11, C.P.C. Would not apply then also the suit was hit by the provisions of Order IX, Rule 9, C.P.C. And, therefore, the plaint had to be rejected under Order VII, Rule 11, C.P.C. Being aggrieved the present revision application has been filed by the applicant.
4. I have heard Mr. Jhamat Jethananad, the learned counsel for the applicant and Mr. Sultan Ahmed, the learned counsel for respondent No.2. The main contention raised by the learned counsel for applicant is that Order IX, Rule 9, C.P.C. Does not bar institution of a fresh suit on a cause of action which would be recurring from day to day. He has further argued that his suit was not only for declaration but also for injunction, which could be treated as independent relief and suit had to be maintained.
5. I have considered the above submissions made by the learned counsel. In order to appreciate the facts in the case, it would be pertinent to reproduce the paras. 12 and 13 of the plaint which read as under: "12. That prior to present suit plaintiff filed same Suit No. 134 of 1990 before this Hon'ble Court but such was dismissed in non-- prosecution/dismissed in default of appearance.
13. That the cause of action accrued to the plaintiff on 22-4-1990 when he came to know that defendant No.1 in collusion with defendant No.2 have deprived him from his legal right and character the cause of action is accruing day to day in the competency and jurisdiction of this Hon'ble Court."
6. The mere reading of the above provisions would show that admittedly a suit was filed in the year 1990 which was dismissed for non-prosecution/in default of appearance as is contended therein.
7. Para. 13 also mentioned that cause of action had accrued initially on 22-4-1990 although it has been said in the same para, that it is a recurring cause of action.
8. In the first instance, the previous suit admittedly was for declaration of title as the contents of the plaint disclosed and the fact that it is mentioned that the alleged title was denied as early as in 1990 goes to show that the cause of action had accrued to the plaintiff on 22-4-1990. Therefore, this second suit for declaration is obviously based on same cause of action and could not be permitted under the provisions of Order IX, Rule 9, C.P.C. If not the provisions of section 11, C.P.C. It may be observed that the dismissal of an earlier suit under Order XVII, Rule 3, C.P.C. Amounts to a dismissal on merits and the provisions of section 11, C.P.C. Do apply in such a case. Reference may be made to the case of Shahid Hussain v. Lahore Municipal Corporation PLD 1981 SC 474, wherein in identical circumstances their Lordships were pleased to hold that section 11, C.P.C. Does apply in such cases.
9. Even if the contention of the learned counsel for applicant is accepted that the earlier order in fact was not passed on merits, the provisions of section 11, C.P.C. Would not apply as there is no finding on any independent issue, then also the provisions of Order IX, Rule 9, C.P.C. Would be a bar to the tiling of the present suit. The said provision reads as under "9. Decree against plaintiff by default bars fresh suit.---(1) Where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non --appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with suit.
(2) No order shall be made under this rule unless notice of the application has been sserved on the opposite-party.
(3) The provisions of section 5 of the Limitation Act, 1908 (IX of 1908) shall apply to applications under sub-rule (1)."
10. Thus it is clearly seen that in view of the above provisions no suit arising out of same cause of action praying for same relief could be instituted.
11. Coming to the second contention of the learned counsel that he had also prayed for relief of injunction, the cause of action for such relief is a recurring cause of action that accrued even at a date subsequent to dismissal of earlier suit, it may be observed that such suit would fall under the provisions of section 54 of the Specific Relief Act which reads as under: "54. Perpetual injunction when granted. ---Subject to the other provisions contained in, or referred to by, this chapter, a perpetual injunction may be granted to prevent the breach of an obligation existing in favour of the applicant, whether expressly or by implication.
12. When such obligation arises from contract, the Court shall be guided by the rules and provisions contained in Chapter I] of this Act. "
13. The plain reading of this provision would show that in order to seek a relief of perpetual injunction the plaintiff ought to show that there is likelihood of breach of an obligation existing in favour of the applicant. Now the obligations as contemplated under section 54 of the Specific Relief Act is an obligation, which can be protected or enforced under any provision of law through a Court of law.
14. As discussed above, in case when relief of declaration of title or right in favour of the plaintiff cannot be granted, the injunction in such case would also not be allowed in favour of the plaintiff. A legal right is a right which can be enforced through Court of law under any provision of law'.
15. Reliance may be placed on the case of Government of East Pakistan v. Government of Pakistan PLD 1962 Kar. 353. Reliance may also be placed on the case of Burmah Eastern Ltd. v. Burmah Eastern Employees' Union and others PLD 1967 Dacca 190.
16. In view of the above discussion, I find no substance in this revision application, which i6 accordingly dismissed summarily.