' SARDAR SAID MUHAMMAD KHAN, C.J.---This appeal by leave, has been directed against the judgment of the High Court dated 19-9-1997, whereby the appeal filed by the appellant, herein, was dismissed.
2. The brief facts of the case are that the plaintiff-appellant was in the service of the respondents as General Manager when his services were terminated by respondent No,1 on 11-5-1987. The plaintiff-appellant filed a declaratory suit challenging the order of termination of his service before the Additional Sub-Judge, Mirpur, on 30-6-1987. His suit was decreed and the order of his termination of service was set at naught; the appeals to the District Judge and the High Court by the respondents also failed. Consequently, the appellant was re-instated in service by the respondents on 9-6-1991 but thereafter, he was againt relieved from the service on 15-6-1991. The appellant served a notice for payment of arrears of his pay and other emoluments etc. On the respondents on 1-12-1991 and, thereafter, filed a suit for the recovery of the damages and other emoluments before the District Judge, Mirpur, on 8-2-1992; on the same day, i,e,, 8-2-1992, after filing the suit before the District Judge, he filed another suit in the Court of Additional Sub-Judge, Mirpur, seeking a declaration in terms that he was entitled to 605 days leave, travelling expenses and pensionary benefits. A compromise was entered into between the parties in the suit before the District Judge whereby the plaintiff-appellant was paid some amount; an attested copy of the said compromise, which was entered on 27-7-1992, was also placed on the record of the suit which was pending before the Additional Sub-Judge. A perusal of the said compromise deed shows that the subject-matter of the suit in the Court of Sub-Judge was also partly compromised and the parties agreed to end all the litigation in future. However, no statement was recorded with regard to the said compromise deed by the Additional Sub-Judge. It may be stated here that issues in the suit before the Additional Sub-Judge were framed on 14-5-1992, i,e,, before the said compromise dated 27-7-1992. The trial Court, vide its order dated 3-3-1993, decided Issue No,2 against the plaintiff- appellant and dismissed that suit on the ground that the same was hit by the provisions contained in Order II, rule 2 of C.P.C. The appeals filed by the plaintiff-appellant before the District Judge and the High Court were also dismissed. It may be stated here that an amendment application was filed by the plaintiff-appellant in the Trial Court to amend his plaint on 8-3-1992 which was allowed by the Trial Court vide its interim order dated 8-3-1992 in terms that wherever the word 'superannuation' appeared in the plaint, that may be substituted by the word 'compensatory'.
However, the perusal of the record shows that no amended plaint was filed in the trial Court and written statement was filed by the respondents on 8-4-1992 to the plaint already filed.
3. We have heard the arguments and perused the file. A preliminary objection has been raised by the learned counsel for the respondents that the appeal is not competent in view of the fact that the decree-sheet of the trial Court was not filed with the petition for leave to appeal. He has referred to the cases reported as Azad Jammu and Kashmir Government v. Sikandar Khan (1991 CLC 561) and Rafique Shah v. Muhammad Aslam (1993 SCR 344) in support of his contention that appeal or petition for leave to appeal filed in contravention of the relevant rules should be dismissed on this sole ground. He has also referred to rule 5 of Order XII of the Azad Jammu and Kashmir Supreme Court Rules to support his contention that memorandum of appeal should have also been accompanied by the decree-sheet of the trial Court. The learned counsel has further argued that as the title of Order XII of the Supreme Court Rules shows that the provisions of the Order would be applicable to the appeals filed under section 42(11) and (12) of the Azad Jammu and Kashmir Interim Constitution Act, it implies that the copy of decree-sheet should have also been filed with the petition for leave to appeal. He has submitted that as under subsection (12) of section 42 of the Interim Constitution Act, an appeal can be filed only after obtaining the leave, the aforesaid provision shall also govern the appeals which are filed after obtaining the leave from the Court.
4. In reply, Ch. Muhammad Sharif Tariq, Advocate, the learned counsel for the appellant, has submitted that the aforesaid provision does not apply to the appeals which are filed after obtaining the leave under subsection (12) of section 42 of the Interim Constitution Act, rather such appeals would be governed by rule 3 of Order XIII of the Supreme Court Rules; the said provision does not envisage that copy of decree-sheet of the trial Court must also accompany the petition for leave to appeal or for that matter the same should be furnished after the petition for leave to appeal is granted.
5. We have given due consideration to the matter. In the instant case, the appeal has been filed after getting the leave as envisaged under subsection (12) of section 42 of the Interim Coonstitution Act. Such an appeal is governed by Order XIII of the Supreme Court Rules and not by the provisions contained in Order XII of the Supreme Court Rules; the bare reading of rule 5 of Order XII of the Supreme Court Rules shows that the same deals with the appeals filed under section 42(11) of the Interim Constitution Act and not the appeals 'filed under section 42(12) of the Act. The mere fact that the title of Order XII of the Supreme Court Rules makes a reference to subsection (12) of section 42 of he Interim Constitution Act, therefore, all the provisions contained in the said Order are applicable to appeals filed under section 42(11) is not correct; there are other rules, such as rules 6, 7 and 8 which would also be attracted in case of the appeals filed under section 42(12) and it is for this reason that in the title of Order XII, section 42(12) of the Interim Constitution Act has also been mentioned. It is well-settled principle of law that where a specific provision of law governs a situation, the general provision would stand excluded. Therefore, the contention of the learned counsel for the respondents that the petition for leave to appeal should have been accompanied by the decree-sheet of the Trial Court is not correct and is hereby repelled.
6. Dealing with the merits of the case, it may be stated that the High Court has dismissed the appeal filed by the plaintiff-appellant because he did not include the reliefs now claimed in the suit filed before the District Judge on the same day; thus, his suit was hit by the provisions contained in rule 2 of Order II of C.P.C. Ch. Muhammad Sharif Tariq, Advocate, the learned counsel for the appellant, has argued that as the cause of action in the suit filed before the Additional Sub-Judge was different, it was not necessary for the plaintiff-appellant to seek the reliefs in the suit filed in the Court of District Judge. He has maintained that if the cause of action in two suits is different, the suit subsequently filed is not hit by the mischief envisaged under the aforesaid provisions of the C.P.C. He has further submitted that as both the suits, one instituted in the Court of District Judge and the other in the Court of Additional Sub-Judge, were filed on the same day, the provisions contained in rule 2, Order II, C.P.C., are not even otherwise attracted. The learned counsel has referred to the following authorities in support of his contention:-- ' In case reported as Ghulam Nabi v. Seth Muhammad Yaqub (PLD 1983 SC 344) it has been held that the provisions contained in Order II, rule 2, C.P.C., would not be attracted because the relief claimed in the first suit was incompetent and the suit was also barred by section 56(1) of the Specific Relief Av.
' In case reported as Hussain Bux v. Dur Muhammad (PLD 1963 Karachi 969), it was observed that where the first suit was instituted for the specific performance of an agreement-to-sell and after obtaining the transfer inpursuance of the decree passed in the first suit, the subsequent suit for possession could not be held to be hit by the provisions of Order H, rule 2, C.P.C., because in the second suit the cause of action would arise after the execution of the sale-deed.
' In the case reported as Saeed Ahmad v. Tanveer Ahmad (1990 MLD 788), it was held that as the subsequent suit under rule 1(3) of Order XXIII of the C.P.C., was instituted after the withdrawal of first suit, the same was not hit by rule 2 of Order II of C.P.C.
' In case reported as Rama Kallappa Pujari v. Saidappa Sidrama Pujari (AIR 1935 Bombay 306), it was held that where the first suit was filed for the possession of land, the subsequent suit for mesne profits was not barred by Order H, rule 2, C.P.C. Because in view of provisions contained in Order II, rule 4, the cause of action in both the suits was different.
' In case reported as Fayyaz Hussain v. Tahir Naseem (PLD 1992 Kar. 423), it has been observed that if a cause of action to file a suit was not available at the time of institution of the first suit and the same arose subsequently, the second suit is not barred under Order H, rule 2, C.P.C. It was held that the loan which was to be paid by instalments, the default in payment of each instalment would give a fresh cause of action to the plaintiff and second suit on the basis of the subsequent default in paying instalment would be competent.
' In case reported as Habib Bank Ltd. v. Green Garments Manufacturers (PLD 1978 Karachi 1027), it was held that as the number of defendants in two suits was different, the overdraft facilities in two suits were also separate, the documents executed in respect of each suit were also different and both the suits were filed simultaneously, the subsequent suit cannot be said to have been barred under rule 2 of Order II, C.P.C.
7. Mr. Ghulam Mughal, Advocate, the learned counsel for the respondents, has controverted the arguments advanced by the learned counsel for the appellant. He has contended that the bare reading of Order II, rule 2, C.P.C., shows that if the plaintiff has to seek more than one reliefs arising out of the same cause of action, he must seek all the reliefs in the same suit. If any of such reliefs is not sought at the time of institution of first suit, the same cannot be sought by filing a second suit.
The learned counsel has argued that the relations between the appellant and the respondents were that of employee and employers and all the reliefs to which the appellant thought himself to be entitled, should have been included in the suit filed before the District Judge. The learned counsel has contended that the appellant is not permitted to bifurcate his claims arising out of the same cause of action and bring different suits at his will. The learned counsel has submitted that the logic behind the provisions contained in Order II, rule 2, C.P.C., is that the plaintiff must sue for whole of his claim arising out of the same cause of action or the transaction so as to avoid the multiplicity of proceedings. The learned counsel has submitted that according to the case of the appellant, he was entitled to all the reliefs when he filed tfie suit before the District Judge, therefore, he was bound to include all the reliefs in the aforesaid suit; it was not permissible to him to split up his reliefs and file one suit in the Court of District Judge and the other in the Court of Additional Sub-Judge. The learned counsel has argued that omission to seek relief in one suit could be made only for giving the jurisdiction to the Court and, in any such eventuality, subsequent suit would be competent only if the plaintiff obtained permission from the Court at the time of filing of his first suit. The learned counsel has argued that under explanation to sub-rule (3) of rule 2 of Order II, C.P.C., the expression 'cause of action' has been given extended meaning in context of provisions contained in rule 2, Order II, C.P.C. Thus, if an obligation of a defendant to perform an act gives rise to the successive claims, it would constitute one cause of action. The learned counsel has maintained that in view of the extended meaning assigned to expression 'cause of action', under Order II, the successive claims arising out of the breach of an obligation would constitute one 'cause of action' and, thus, the subsequent suit cannot be held to have a different cause of action so as to justify the institution of a separate suit. The learned counsel has cited following authorities in support of his contentions: ' In case reported as National Bank of Pakistan v. Hashim Khan 1995 CLC 88, it has been observed that a plaintiff should include all the reliefs flowing from the main grievance in one suit and if he fails to sue for all the claimable reliefs concerning the main grievance or cause of action, he would not be permitted to claim any relief subsequently through another suit. It was observed that the object of Order II, rule 2, C.P.C., is to avoid splitting up the claims and restricting the multiplicity of obligations. It was further observed that inter-connected causes of action should be joined in one suit; a cause of action concerning payment of principal amount and compensation for blockade or interest relating to said amount should have been simultaneously claimed. It was also opined that where the original suit for the recovery of the principel amount was compromised, the subsequent suit for compensation regarding the blockade of money for interest pertaining to the principel amount was patently ill-grounded.
' In case reported as Ghulam Nabi v. Seth Muhammad Yaqoob (PLD 1983 SC 344), it was observed that the object of Order II, rule 2, C.P.C., is to avoid the multiplicity of the suits. Thus, the plaintiff must include whole of the claim and (except with leave of Court) any subsequent suit in respect of any portion of claim omitted or intentionally relinquished in first suit, cannot be permitted to be pressed by filing a second suit.
' In case reported as Muhammad Iqbal v. Mir Mukhtar Hussain (1996 SCMR 1047) it was observed that rationale behind rule 2(1), (2) and (3) of Order II, C.P.C., is that the Legislature introduced the provision to control splitting up of claims and to restrict multiplicity of suits. It was observed that as the cause of action in both the suits could be joined in one suit, which was not done, the latter suit was barred under Order II, rule 2, C.P.C. Thus, the Court declined to give leave to appeal in the case.
' In case reported as Abdul Hakim v. Saadullah Khan (PLD 1970 SC 63), it has been held that the expression cause of action' occurring in Order II, rule 2, C.P.C., means all causes of action for which a suit is brought. For being a cause of action in two suits same, it is necessary that not only the facts which 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 in the two suits, must have arisen in substance out of the same transaction. The question with regard to the cause of action should be examined in substance and not merely on the basis of form; in spite of the fact that the facts alleged in two suits are not exactly identical, the cause of action may be same. It was observed that it is not for the plaintiff to split up the facts which really constitute one cause of action and file separate suits. It was further observed that all the reliefs which flow from the grievance caused by the infringement of rights by the defendants in the course of the same transaction, must be joined together.
8. We have given due consideration to the arguments raised at the Bar. Before dealing with the question, it would be expedient to reproduce below the averments made in the relief clauses of two suits, one instituted in the Court of District Judge and the other in the Court of Additional Sub- Judge on the same day, because it would be helpful to resolve the question as to whether the plaintiff-appellant had only one cause of action or had different causes of action. Paragraph 13 of the suit filed in the Court of Additional Sub-Judge is as under:-- ' "That the cause of action initially arose on 11-1-1989, the date of determination by the Additional Sub-Judge, then on 31-5-1989, the date of decision by the District Judge, again on 18-3-1991, when the matter was adjudicated upon by the High Court, and finally a few weeks previously when the defendants declined to acknowledge and grant the privileges, allowances and sup rannuation beneifits specified above."
' Paragraph 14 of the suit filed in the Court of District Judge is as under:-- ' "That the cause of action herein initially arose on 11-1-1989 (the determination by the Additional Sub-Judge), then on 31-5-1989 (the adjudication by the District Judge), then again on 18-3-1991 (the judgment of the High Court) and finally a few weeks previously when the defendants practically declined to reimburse to the plaintiff the aforesaid compensatory amounts."
' It is evident from the above averments made by the plaintiff-appellant in the relief clauses of the plaints filed in two suits that according to his own case, there was only one cause of action. In both the suits, he has mentioned that his cause of action arose when the plaintiff was reinstated on his post after previous litigation between the parties. In both the suits he has claimed compensation for the period of his leave and other compensatory benefits etc. Therefore, we are of the view that cause of action in both the suits was the same and the plaintiff was not legally competent to file two suits by splitting up his claim neither any reason has been given for filing separate suits nor any permission was sought from the District Court in which he had instituted the suit in the first instance. In view of the above mentioned, averments made by the plaintiff in the two suits, there is no force in the arguments of the learned counsel for the plaintiff-appellant that there were different causes of action and, thus, the second suit was C not hit by Order II, rule 2, C.P.C. The authorities relied upon by the learned counsel for the appellant, discussed above, are not relevant to the facts of he case in hand. On the other hand, the authorities relied upon by the learned counsel for the respondents fully support the view that if cause of action is one, all the reliefs flowing from such a cause of action must be included in one suit, the plaintiff cannot be permitted to split up his claim and file separate suits. If a claim is split up, the subsequent suit would be hit by the provisions contained in Order II, rule 2(1), (2) and (3) of C.P.C. Besides, the explanation to sub- rule (3) of rule 2 of Order II, C.P.C., makes it abundantly clear that if there is an obligation, successive breach of such obligation would be deemed to give rise to one cause of action for the purpose of Order II, rule 2, C.P.C. Thus, the expression 'cause of action' has been assigned extended meanings for the purpose of the provisions contained in Order II, rule 2, C.P.C.
9. It may also be pointed out that the contention of the learned counsel for the appellant that as both the suits, one in the Court of District Judge and the other in the Court of Additional Sub-Judge, were filed on the same day, the provisions contained in Order II, rule 2, C.P.C., will not be applicable, is also not tenable because it is clearly mentioned by the plaintiff in the suit filed in the Court of Additional Sub-Judge that he had already instituted a suit in the Court of District Judge. Therefore, there remains no doubt that although both the suits were instituted on the same date yet the suit instituted in the Court of District Judge was instituted first in time. Even otherwise, under sub-rule
(3) of rule 2 of Order II, C.P.C., it is clearly laid down that a person entitled to more than one reliefs with respect to same cause of action must sue for all the reliefs and if he fails to sue for any of the reliefs, he shall not afterwards sue for any relief so omitted.
10. Before parting with the case, it may be stated that the effect of the compromise in the suit before the District Judge has not been made basis for the impugned judgment; nor the said compromise is subject of Issue No,2. Therefore, some of the authorities cited at Bar which deal with the said aspect of the case need not be considered as being irrelevant.
' In the light of what has been stated above, finding no force in this appeal, it is hereby dismissed with costs.