' On 30-10-1996 Tahir Saeed, respondent No,1 herein, brought a suit through his real father Saeed Ahmad as his Mukhtar-e-Aam against Khaleeq Ahmad petitioner for the issuance of a perpetual injunction against the defendant alleging in his plaint that he had entered into an agreement to purchase a house bearing Property No,BXXI-IS-175/C, fully described in para. 1 of the plaint, situated on Hafizabad Road Gujranwala on 15-7-1996 for a sum of Rs,13,00,000 and made the payment of a sum of Rs,3,00,000 as earnest money in the presence of the witnesses. It was agreed that the sale- deed would be registered on 15-12-1996. It was also agreed upon between the parties that the defendant would receive another sum of Rs,2,00,000 upto 15-8-1996 while the remaining balance of Rs,8.00,000 would be paid by the plaintiff upto 15-12-1996 whereafter the sale-deed would be registered. Although the plaintiff had to make the payment of another sum of Rs,2,00,000 upto 15- 8-1996 but on a demand made by the defendant, he paid this amount to the defendant on 4-8- 1996 and an endorsement to this effect was made on the back side of the agreement to sell. The plaintiff had, thus, made the payment of earnest money to the tune of Rs,5,00,000. The defendant had further agreed to get portion of the house on rent with someone vacated before registration of the sale-deed and hand over the possession of the same to the plaintiff at the time of registration.
The defendant, it was further alleged, got the said portion of the house vacated in September, 1996 and again agreed to get the registered sale-deed attested in accordance with the terms of the agreement but subsequently he made a futile attempt to rent out the house. He was again trying to sell the house to someone else which obliged the plaintiff to bring this suit for the issuance of a perpetual injunction against the defendant restraining him from selling the house to anyone else or to make any alteration therein.
2. On 26-3-1997, this very Tahir Saeed brought another suit for possession of this house through specific performance of the contract alleging that he had already made the payment to the tune of Rs,5,00,000 out of the stipulated sale price of Rs,13,00,000 upto 4-8-1996 but the defendant had failed to get the sale-deed registered after receiving the remaining sum of Rs,8,00,000 because he had changed his mind out of sheer greed. The plaintiff claimed that he served the defendant with a notice, dated 8-1-1997 but in vain. He, therefore, had to bring this suit.
3. It is worth-mentioning that after bringing this second suit on 26-3-1997 the plaintiff got his earlier suit dismissed as withdrawn on 27-3-1997, through his counsel Javaid Akhtar Sheikh, Advocate, who made a statement that since another suit had been brought which was pending in the Court of Mr. Ghafar Jalil, Civil Judge, the plaintiff did not like to proceed with the earlier suit.
4. It was on 17-11-1997 that the defendant moved an application for the dismissal of this second suit under Order II, Rules 1, 2 and 3, C.P.C. Alleging inter alia that the prayer for specific performance of the contract should have been made by the plaintiff in his earlier suit for mandatory and perpetual injunction because a cause of action had already accrued to him and since he failed to claim this relief wilfully and intentionally, this second suit was barred under Order II, Rule 2, C.P.C.
5. This application was hotly contested by the plaintiff who submitted a written reply maintaining therein that this application had been resorted to with mala fide intentions.
6. After hearing the learned counsel for the parties at some length, the learned Civil Judge 1st Class, Gujranwala seized of the matter came to the conclusion that the suit of the plaintiff for specific performance of the contract' was not hit by the provisions of Order II, Rule 2, C.P.C. He, therefore, dismissed the application on 7-3-1998.
7. Feeling aggrieved, Khaleeq Ahmad defendant has filed this revision petition.
8. It has been claimed by the petitioner in the amended revision petition inter alia that he and Saeed Ahmad respondent are real brothers and they jointly wned property in dispute in equal share, that on 4-9-1988 and agreement was executed between the brothers that if anyone desired to sell the house, he would offer it for sale to the other brother but would not sell it to any third person but by means of agreement, dated 15-7-1996 Saeed Ahmad sold his portion of the house to his son Tahir Saeed which obliged Khaleeq Ahmad to file a suit for declaration and cancellation of this document based on misrepresentation. On the other hand Tahir Saeed brought a suit through his father for a permanent injunction against the petitioner on 30-10-1996 which was still pending when he brought another suit on 26-3-1997 for specific performance and the earlier suit was then withdrawn on 27-3-1997. The petitioner has, thus, asserted that the subsequent suit is barred under Order II, Rule 2, C.P.C. And the impugned order dated 7-3-1998 had been passed without lawful jurisdiction ignoring the law as well as the citations of the High Court and the Supreme Court including 1987 SCM R 527 and 1990 CLC 1532 and the Civil Judge wrongly relied on PLD 1983 SC 344.
9. Both the parties have addressed preliminary arguments at a bit length. There is no controversy between the parties that the earlier suit was withdrawn on 27-3-1997 by the learned counsel for the plaintiff/respondent immediately after the second suit for specific performance-had been instituted on 26-3-1997. There also cannot be a cavil with the proposition that no one was to be vexed twice for the same cause of action as held in Aziz Ahmad and others v. Mst. Hajiran Bibi and another 1987 SCM R 527. But I do not find any weight in the contention of the learned counsel for the petitioner that the institution of the second suit amounts to vexing the revision petitioner again for the same cause of action. The other judgment relied upon by the learned counsel for the petitioner in case Barkat v. Muhammad Sadiq and others 1990 CLC 1532 (Lahore) had facts totally distinguishable from those of the present dispute. The earlier suit in the reported case was decided on merits and it was on the basis of the decision in the said earlier suit that the plea that second suit was barred by Order II, Rule 2, C.P.C. Was resorted to and it was held that plaintiff having earlier filed a suit for permanent injunction against the defendant with regard to the same property wherein no relief either for declaration or for specific performance of agreement to sell was claimed, his present suit for declaration relating to the same property was barred by the provisions of Order II, Rule 2, C.P.C. In the instant case, the earlier suit was brought on 30-10-1996 when according to the agreement of sale the defendant had to receive the entire sale price upto 15-12- 1996 and then to get the sale-deed registered. Since the defendant who had executed the sale- deed failed to receive the balance of the sale consideration and get the sale-deed registered upto 15-12-1996, the plaintiff filed a separate suit for specific performance of the contract and on the next day got his earlier suit dismissed as withdrawn. The provisions of law as contained in Order II, Rule 2, C.P.C. Was, therefore, not at all attracted and the learned Civil Judge has rightly relied on what has been laid down in Ejaz Hussain v. Abbas Ali 1993 CLC 2478 (Lahore) in which the earlier case law was fully discussed and it was held that the principle of constructive res judicata would be applicable to the subsequent suit and not to contemporaneous suit. Order II, Rule 2, C.P.C., therefore, obviously is no bar to the present suit and the contentions of the learned counsel for the petitioner in this behalf are misconceived.
10. Finding no good reason to admit this Civil Revision to regular hearing I cannot but dismiss it and it is accordingly dismissed in limine.
1998 CLC 1977 [Peshawar] Before Muhammad Azam Khan, J ALAMSHER and others---Petitioners versus HUKAM KHAN---Respondent Civil Revision No,211 of 1997, decided on 15th June, 1998. Civil Procedure Code (V of 1908)--- ----S. 115 & O.XXXIX, Rr.1 & 2---Specific Relief Act (I of 1877), Ss.42 & 54---Suit for declaration and perpetual injunction---Temporary injunction, grant of---Such suit was filed on basis of unregistered sale-deed in favour of plaintiff in respect of suit property---Application for temporary injunction was also filed by plaintiff for restraining defendant not to undertake any type of construction on suit property or to alienate same without consent of plaintiff---Suit was resisted by defendants alleging that they had purchased suit property from its original owner and they were in possession of same since its purchase---Documents produced by parties in proof of their respective ownership did not reflect that such documents were in respect of same property which was subject-matter of dispute between the parties---Documents produced by parties to prove their respective claim did not identify suit property as boundaries given in both documents were not identical---Suit was in initial stages and a correct adjudication could not be made on available record---Relief sought for being of temporary nature, order of Court below according to which temporary injunction was granted to plaintiff till final disposal of suit, was correct and could not be interfered with. [p. 1979] A Sabah-ud-Din for Petitioners.
Mazullah Khan Barkandi for Respondent.
Date of hearing: 15th June, 1998.
' This revision petition is directed against the order of the learned District Judge/Zilla Qazi, Malakand at Batkhela, dated 2(1-3-1997 whereby the order of the learned Senior Civil Judge/Alla Illaqa Qazi, Malakand at Batkhela dated 18-2-1997 was set aside and temporary injunction was granted to the plaintiff-respondent till the final disposal of the suit.
2. Facts of the case, in brief, are that Hukam Khan plaintiff-respondent instituted a suit in the Court of Senior Civil Judge/Alla Illaqa Qazi, Malakand at Batkhela against Alam Sher and others, defendants-petitioners for declaration and perpetual injunction of the property mentioned in the heading of the plaint. Alongwith the suit an application for temporary injunction was also filed, restraining the defendants-petitioners not to undertake any type of construction on the disputed land or to alienate the same without his consent.
3. The assertions of the plaintiff are that he had purchased the suit land vide an unregistered deed, dated 15-9-1990 from one Muhammad Tahir son of Khan Hidayatullah Khan. This deed is available on the file but has not been exhibited so far.
4. Confronting the assertions of the plaintiff-respondent,Alam Sher etc.,defendants-petitioners alleged that they had purchased the suit property from Dawa Jan through a Bainama, dated 12-7- 1987 and ever since they were in possession of the same having planted trees and constructed houses thereupon. Besides, over a portion of the same they had completed the construction work upto D. P.0 . Level.
5. Having heard the counsel for the parties on the aforesaid application, the learned trial Judge visited the spot without giving notice to both the parties and without the presence of the plaintiff- respondent observed that the plaintiff-respondent had no good prima facie case and the balance of convenience was also not in his favour. He, therefore, dismissed the application of the plaintiff- respondent vide his order, dated 18-2-1997.
6. Feeling aggrieved of the aforesaid order the plaintiff-respondent preferred an appeal before the District Judge/Zilla Qazi, Malakand at Batkhela who after hearing counsel for the parties and perusing the record, accepted the appeal and set aside the order of the learned Senior Civil Judge/Alla Illaqa Qazi dated 18-2-1997 vide his order dated 20-3-1997 and directed the parties to maintain status quo.
7. Being not satisfied with the said order of the learned District Judge, Alam Sher etc. Petitioners herein, have preferred the present revision petition. Before this Court.
8. I have heard the counsel for the parties and perused the record. The learned counsel for the petitioners argued that the learned District Judge/Zilla Qazi has not appreciated the principles and spirits of section 115, C.P.C. In its true perspective and alleged that he has passed an illegal order in excess of his jurisdiction. The learned counsel further contended that the defendants-petitioners were within their rights to carry on construction over the suit property as the same had been purchased by them from one Dawa Jan on 12-7-1987 through a transfer deed. He next argued that the claim of the plaintiff-respondent is mainly on receipt of sale-deed, dated 15-9-1990 which is not an authentic document.
9. The record reveals that both the documents placed on the file i,e, document, dated 15-9-1990, the alleged sale-deed in favour of the plaintiff-respondent and the document, dated 12-7-1987 do not reflect that these documents are in respect of the same property which is the subject-matter of the present dispute. These two documents do not identify the suit property as the boundaries given in both are not identical and similar. Since the suit is in the initial stages and a correct adjudication cannot be made out on the present available record, therefore, the relief sought for is of temporary nature and the order of the learned District Judge/Zilla Qazi appears to be correct and needs no interference by this Court. I, therefore, dismiss the instant revision petition and direct the Trial Court to dispose of the matter within six months in accordance with law, failing which the status quo ordered by the learned District Judge shall automatically stand vacated.