MUHAMMAD ISLAM BHATTI, J,--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 who obliged the plaintiff to bring this suit for the issuance of a perpetual injunction against the defendant restraining his 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 him 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 on26.3.1997 the plaintiff got his earlier suit dismissed as withdrawn on 27.3.1997 though 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, CPC 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, CPC,
5. This application was hotly contested by the plaintiff who submited 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 lehgth, 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, CPC. 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 owned property in dispute in equal share, that on 4.9.1988 an agreement was executed between the brothers that if any one 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 concellation 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, CPC 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 CLC1532 and the Civil Judge wrongly relied on PLD 1983 SC 344.
9. Both the parties have addressed preliminary argument 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/repondent 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 L.C. 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, CPC 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, CPC.
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, CPC was, therefore, not at all attracted and the learned Civil Judge had 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 hot to contemporaneous suit. Order II, rule 2, CPC, therefore, obviously is no bar to the present suit and the contentions of the learned counsel for the petitioner in this behalf are misconceived.
Finding no good reason to admit this Civil Revision to' regular hearing I cannot but dismiss it and it is accordingly dismissed in limine.