JUDGMENT ALI NAWAZ CHOWHAN, J. -- The judgments of the Courts below are at variance. This has given rise to the present revision.
2. This was a suit for possession. The petitioner is owner of 16 marlas of land in Khewat No. 47, Khasra No. 43/45/3, situated in the revenue estate of Ghatay Phakani, in Tehsil Depalpur, the full description of which is recorded in the plaint. There is no denial about this fact by the respondents.
3. Before filing this suit the petitioner had previously tiled a suit for injunction against Mst. Neimatay, who was the predecessor-in-interest of the present respondents. He sought the relief that as he was the exclusive owner in possession of the land in question the respondents be permanently restrained from causing interference in his peaceful possession. During the pendency of that suit the parties agreed to refer the matter to an arbitrator. It seems that the arbitrator gave his award to the effect that although the petitioner was the owner of 16 marlas of land but in fact he was in possession of only 8 marlas. Whereas the remaining 8 marlas were in the possession of Mst.
Neimatay. The Trial Court In that case passed a judgment and decree on 30.10.1980 .In favour of the petitioner in accordance with the award and of course to the extent of 8 marlas of land while restraining the defendants from causing interference in his peaceful possession.
4. When the present suit came up it was opposed on the ground of res judicata.
5. The learned Trial Court on the divergent pleas of the parties had framed six issues. But for purposes of disposal of this revision petition issue No. 2 has become important which states: "Whether this Court is barred by res judicata".
6. The main claim of the petitioner was that he was held to be in possession of only 8 marlas of land in the previous suit. He had to seek a remedy through the present suit of possession for acquiring possession of the 8 marlas of land.
7. Issue No. 2 was decided in favour of the petitioner by the Trial Court. When the matter came up before Mr. Muhammad IIyas Khan, Addl. District Judge-Ill, Okara in appeal, he dismissed the suit on the ground that the suit was barred under Order 2. Rule 2 read with Section 12 of the Civil Procedure Code. Consequently this revision petition has arisen.
8. The question, therefore, tor determination is whether the first Appellate Court had correctly applied the penal provisions of Order 2. Rule 2 of the CPC. Order 2, rule 2 CPC reads as follows: "2. 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.
Relinquishment of part of claim - (2) 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) ............."
9. The Civil Procedure Code does not define the cause of action. But it is based on the maxim nemo lis vexavi (no one was twice vexed for the same cause of action).
10. In U.S. v. Craddock-Terry Shoe Corp. DC. Vs., 84 F. Supp. 842, 845 it was said that a "cause of action" is t(ie existence of those facts which give a party a right to judicial interference in this behalf. In the case Schwank v. Platte country, 40 N.W. 2d 863, 867, 152 Neb. 273 it was observed that a cause of action is not formal statement of facts stated in petition, but subject-matter on which plaintiff grounds his right to recover.
11. Every valid cause of action must involve a right possessed by plaintiff and duty devolving upon a dismissed to observe that right; a wrong done by defendant which results in breach of defendant's duty and violation of plaintiff's right; a remedial right recognized by the law in favour of plaintiff and corresponding reciprocal duty resting on defendant; and finally the relief to be rendered by the Court.
12. In the case Green v. Penzance (Lord) (88), 6 App. 657, Lord Seaborne observed: "I have no hesitation about the word cause. It is not a technical word i( is causa jurisdiction is, any suit, action, matter or other similar proceeding competently brought before and litigated in a particular Court".
13. In face the cause of action is not susceptible of a definition which is either unchanging or all inclusive and its meaning depends, in large measures, on the context in which it is employed. Thus the investiture of a legal right arises from and depends upon operative facts and circumstances which, under the law, create the right, preserve it and assure a remedy for its infringement, and such operative facts and circumstances constitute a cause of action.
14. In the case of Muhammad Khalil the Privy Council (AIR 1949 PC 78) observed that the cause of action 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.
15. Order 2, rule 2, CPC is against the splitting of a claim which the plaintiff is entitled to make in respect of the cause of action and enjoins that whole of his claim in respect of a cause of action should be agitated at one time. But Order 2, rule 2, CPC does not insist on joinder of all causes of action available to a plaintiff in one suit. This rule would not, therefore, bar a subsequent suit on a different cause of action or on a cause of action that had not accrued earlier. For instance a suit to eject a tenant under a lease does not bar a subsequent suit to recover rent. Where a suit for specific performance of contract is dismissed a subsequent suit for recovery of earnest money can lie. Likewise, a suit for possession of land is no bar to a subsequent suit for the mesne profits.
16. One test for finding out whether the subsequent suit would be a bar because of an earlier suit is whether the claim in the subsequent suit is in fact founded on a cause of action distinct that which was the foundation of the former suit. This was the principle which was laid in the case AIR 1977 Cal.
189 (202).
17. In the case of Read v. Brown 22 Q.B.D. 128 it was said: a "cause of action" is the entire set of facts that gives rise to an enforceable claim; phrases every fact which, if traversed, the plaintiff must prove in order tp obtain judgment.
18. After appreciating the law on the subject it has now to be seen whether former suit which was for perpetual injunction will place the penalty provisions enunciated by Order 2, rule 2, CPC as a hurdle in the way of the present suit.
19. The plaintiff under the assumption that he being the owner in possession of 16 marlas of land had claimed for the relief of perpetual injunction. The matter was referred to an arbitrator and it was on this account that it was decided that he was in possession of only 8 marlas. But nowhere the other party its ownership on the remaining 8 marlas. He. Therefore, brought about this suit on the basis of findings of the first Court where half of his claim had been already recognized. He had now to bring a different suit on a different cause of action which accrued to him alter the finding of the first Court.
20. In the case reported as Basanna v. Appa Rao (AIR 1959 Maysore 227) it was observed: "that dismissal of the previous suit tor declaration of title and perpetual injunction on the ground that the plaintiff was not found in possession of the property did not bar the subsequent suit for possession on the basis of the title. The principle laid down in the aforesaid case is that as the cause of action in the subsequent suit would arise after the dismissal of the former suit, the question of cause of action being the same does not arise. It was opined that if, in the former suit, it is found that the plaintiff made an incorrect averment that would not debar him from instituting a subsequent suit for recovery of the possession for the simple reason that the cause of action in the second suit would arise only when the plea taken by the plaintiff in the former suit is found to be incorrect and suit is dismissed."
21. This Indian authority was followed in a case captioned Allah Dad v. Feroze (1990 CLC 1920) by the Supreme Court of Azad Jammu and Kashmir and the observations given were:- "We have given our due consideration to the arguments raised at the Bar. It is correct that the appellant in his former suit prayed for a perpetual injunction alleging that whole of the land comprising Survey No. 257, measuring 72 kanals, 7 marlas was in his possession. However, it was found that he was in possession of the land only to the tune of 48 kanals, 17 marlas and the remaining 24 kanals of the land was not in his possession. Evidently, the plaintiff/appellant had failed to prove his possession over the suit land, measuring 24 kanals, at the time of the institution of the previous suit. It may be observed here that in the former suit the plaintiff was denied the relief of perpetual injunction to the extent of 24 kanals of the land on the sole ground that he was not found in possession of the suit land, rather the same was in possession of the defendant/respondent. However, the title of the plaintiff/appellant to the whole of the land comprising Survey No. 257 was held to have been proved by the appellant. Now, the sole point which needs to be determined is as to whether the incorrect averment regarding the factum of possession would be bar the plaintiff/appellant from bringing a fresh suit for possession of the suit land. The learned counsel for the appellant has stressed that the suit is hit under Order II, rule 2,.
CPC. The plain reading of the aforesaid provisions of law would reveal that the same would apply only when the cause of action in both the suits is the same. In the instant case the cause of action in the second suit accrued to the plaintiff/appellant after the dismissal of his former suit. Thus, the cause of action in two suits being different, the principle under Order II, Rule 2, CPC, would not apply to the subsequent suit. We are in respectful agreement with the proposition enunciated in case Basanna v. Appa Rao (AIR 1959 Maysore 227), referred to above, wherein it has been observed that dismissal of the previous suit for declaration of title and perpetual injunction on the ground that the plaintiff was not found in possession of the property, would not create a bar to the subsequent suit for possession for the simple reason that the cause of action in the subsequent suit would be deemed to have accrued to the plaintiff only after the dismissal of his former suit. It was further opined that the mere fact that the plaintiff made an incorrect averment in the former suit regarding the factum of possession would not bring his suit within the mischief of Order II, Rule 2, CPC. The said authority is applicable to the facts of the case in had on all four and we subscribe to the view expressed therein."
22. While relying on these authorities this Court is of the view that the mischief of Order II, rule 2, CPC is not attracted in the present case. Consequently the reasoning given by the first Appellate Court dated 10.9.1985 were based on erroneous appreciation of law leading to miscarriage of justice and are thus unsustainable. The judgment and decree impugned, therefore, is set aside. Consequently, the judgment and decree given by the learned Trial Court shall substitute the same.
23. Resultantly, the revision petition succeeds and is accepted with costs.