CHAUDHARY MUHAMMAD TAJ, -J. This appeal is directed against the judgment and decree of the District Judge, Bagh, passed on August 29, 1998, whereby the case was remanded to the Trial Court after setting aside its order by accepting the appeal.
2. The facts forming the background of this appeal are that the plaintiff -respondent tiled two suits, on April 28, 1997 and May 28, 1997; for cancellation of sale-deed executed on March 2, 1996, and for perpetual injunction. Out of the afore-mentioned suits. One was dismissed for non- prosecution while the other for its having been withdrawn. The plaintiff-respondent tiled a third suit challenging the sale-deed dated March 2, 1996, referred to above and other sale-deed dated November 25, 1996, alongwith the prayer For cancelation of mutation.
The defendant-appellants moved an application to dismiss the suit on the ground that the plaintiff-respondent's suit was liable to he dismissed under Order 2, Rule 2, read with Order 23, & Order 7, Rule 11, CPC as, according to them, the former first suit filed by the plaintiff-respondent was dismissed for non-prosecution and the other on the same subject was withdrawn. It was also asserted that the plaintiff omitted to include the additional relief claimed in the present suit. As such, could not file a fresh suit on the same cause of action. The rial Court after receiving objections from the plaintiff-respondent and hearing him, dismissed the suit. An appeal tiled with the District Judge, Bagh, was accepted and the judgment and decree of the Trial Court was set aside by remaking the case to the Trial Court, to decide the same after receiving written statement and framing issues in accordance with law. This appeal challenges the judgment recorded by the District Judge.
3. Mr. Sardar Khan, the learned Counsel appearing on behalf of the appellants, maintained that the plaintiff-respondent filed two suits formerly on the same subject and cause of action which were dismissed for having been withdrawn and for want of prosecution. It was also contended that the present suit also contained an additional relief not found in the former suits, but the same was omitted by the plaintiff deliberately in those suits, therefore, the aforesaid relief shall he deemed to be refused to the plaintiff. It was further argued that in view of the aforesaid position, the plaintiff had no cause of action and the suit deserved to be dismissed at the earlier stage which was correctly done so by the trial Court but the District Judge set aside the judgment illegally and remanded the case to decide the same after receiving written statement and framing the issues.
4. The respondent appeared personally and also filed written arguments, defending the order of first appellate Court, mentioning therein that the trial Court dismissed the suit illegally, without receiving written statement and evidence of the parties. The former suits filed by him were claimed not to have been decided on merits, and did not dis-entitle the plaintiff-respondent to institute a fresh suit. It was also asserted that the relief claimed in the present suit, was not included in the former suits, as such, could not he refused without scrutiny of the merit.
5. I have heard the learned Counsel. For the appellants and the respondent and also gone through the written arguments filed by the respondent. The plaintiff-respondent tiled a declaratory suit fir cancellation of sale-deed executed on March 2, 1996 by defendant No. 2, Muhammad Aziz Khan, in favour of Muhammad Hanif defendant, to the extent of 7 marlas, on April 28, 1997. The suit was fixed for written statement when the same was dismissed for having been withdrawn on the statement made by the plaintiff-respondent. Another declaratory suit alongwith the prayer the permanent injunction, was also tiled in respect of the land mentioned therein, situate in village Makhyala, Tehsil Dhirkot, District Bagh, on May 28th, 1997, which was dismissed for want of prosecution, on October 15, 1997. No appeal or any application against the dismissal of the aforesaid suits was found to have been tiled. The present suit was filed for the cancellation of sale-deeds executed on March 2, 1996 and November 25, 1996, alongwith defendants-appellants. It may also he mentioned at this stage that the additional claim of prayer for cancellation of sale-deed executed on November, 25, 1996 and mutation attested on its basis was not included in the termer suits. However, the parties and the suit land were the same.
The primary question to he resolved is whether a suit filed by any . Party dismissed for non- prosecution or withdrawn by him without a permission for tiling a fresh suit, would dis-entitled the same plaintiff to tile a fresh suit. A for non-appearance of the plaintiff under Rule 8 of Order 9, CPC precludes the plaintiff to tile a fresh suit- under Rule 9 of the aforesaid Order. Though the aforesaid dismissal does not operate as res judicate but if the parties and cause of-action is the same, the fresh suit shall he barred. The relevant provision is reproduced as under: - "0.9, R.
9. Decree against plaintiff by default bars fresh suit,- (1)Where a suit is wholly or partly dismissed under rule 8, the plaintiff shall he 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 satisfied the Court that there was sufficient cause for his non-appearance when the suit was called on tor hearing, the Court shall .Make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks tit, and shall appoint a day for proceeding with the suit.
(2) xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx x
(3) xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx x
6. A suit tiled by a plaintiff can he withdrawn after its institution against all or any of the defendants or the plaintiff all or any of the defendants or the plaintiff may abandon any part of his claim. The plaintiff can file a fresh. Suit on the same subject-matter if allowed by the Court to withdraw the same with permission to file a fresh suit, without which lie shall he precluded from instituting any fresh suit in respect of such subject-matter Or such part of the claim, under Order 23., CPC. The relevant provisions of the aforesaid Order are usefully reproduced:- "0.23.
1. Withdrawal of suit or abandonment of part of claim.-
(1) At any time after the institution of a suit, the plaintiff may, as against all or any of the defendants, withdraw his suit or abandon part of his claim.
(2) Where the Court is satisfied-
(a) that a suit must fail by reason of some formal defect, or
(h) that there are other sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter or a suit or part of claim , it may, on such terms as it thinks tit, grant the plaintiff permission to withdraw from such suit or abandon such part of a claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of a claim.
(3) Where the plaintiff withdraws from a suit, or abandons part of a claim, without the permission referred to in sub-rule (2), he shall he liable for such costs as the Court may award and shall he precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim.
(4) Nothing in this rule shall he deemed to authorise the Court to permit one of several plaintiffs to withdraw without the consent of the others."
7. Another point required to be attended before entering into the merits of the present case, is, whether a claim omitted by a plaintiff in a former suit finally disposed of, can he included in the subsequent suit tiled by him. Every suit tiled by any plaintiff shall include whole of his claim to which he is entitled, in respect of the cause of action, but he may relinquish any part of his claim. If he omits to sue intentionally or otherwise relinquishes any portion of his claim, he cannot sue in respect of the aforesaid claim. It may also he clarified that a plaintiff entitled to more than one relief in respect of the same cause of action, may sue for all, or any of such reliefs, but if he omits, he shall not sue for such relief so omitted, under Rule 2 Order 2 and shall also he hit by Section II (Explanation--IV), CPC. The aforesaid provisions (Rule 2, Order 2 and Section I 1 (Explanation IV), are reproduced as under:- "R. 2,0.2. 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, or intentionally relinquishes, any portion of his claim, he shall not afterwards suit in respect of the portion so omitted or relinquished.
Omission to sue for one of several relief. (3) A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.
Explanation.-- For the 'purposes of this rule, an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action."
"Section 11. Res Judicate. No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.
Explanation I ......................................................................... Explanation II ............................................... Explanation III ......................................................................... Explanation IV. Any matter which might and ought to have been made ground of defence or attack in such former suit, shall he deemed to have been a matter directly and substantially in issue in such suit.
Explanation V ........................................................................... Explanation VI .......................................................................... 8..........
The next question arises as to whether a suit disclosing no cause of action on the ground for lacking to show the right to seek relief, an incompetent suit, can he disposed of under Rule 11, Order 7, CPC, without framing any issue or receiving evidence from the parties, on an application moved in this regard. A suit under Order 7, Rule 11, CPC can he rejected or dismissed if the same does not disclose a cause of action. The term "cause of action" means that a plaintiff is not only to allege bundle of facts but is also required to show that not only the right has been infringed, but a right to seek relief was also in existence. It' such circumstances, if it appears at any stage that the suit is incompetent, the parties can draw the Court's attention by way of an application and the Court, without framing issues on the subject or receiving evidence, can dispose of the matter as the policy of law is that the incompetent suits should he laid at rest at the earliest moment. Reliance in this regard can he placed on Muhammad Ashraf Niazi'S case (PLD 1997 AJK II) wherein it was observed as under:- "Keeping in view the relevant law and the authorities quoted above, it can safely he resolved that a suit can be rejected under Order 7, Rule II, CPC it' the same does not disclose a cause of action tor which the plaintiff is not only to allege the bundle of 'acts but is also required to show that not only the right has been infringed but a right to seek a relief was in existence. It may also he observed that the provisions of Order 7, Rule 11, CPC are not exhaustive. Therefore, if at any stage, it appears to the Court-that the suit is incompetent, the parties to the suit are at liberty to draw the Court's attention to the same by way of an application and the Court can decide the matter under the above rule, i.e. Order 7, Rule 11, CPC-as the policy of law is that the incompetent suits should he laid at rest at the earliest moment so that no further time is wasted over what is hound to collapse as not; being permitted by law. In a cause where .a suit is not permitted implication of law in the sense that a positive prohibition can i.e spelt out of legal provisions, the Court has an inherent jurisdiction to reject the plaint,"
The proposition also .Came under consideration before a Division Bench of Dacca - jurisdiction in the case titled 'BurMah Eastern Ltd, v. Burman Easter Employees' Union and others' (PLD 1967 Dacca 190) wherein it was laid down: "Although under Order VII, Rule 11, of the Code' of Civil Procedure, it is the duty of the Court to reject the plaint if, on a perusal thereof, it appears that the suit is incompetent, the parties to the suit are at liberty to draw Court's attention to the same by way of an application. This Court can, and, in most cases, does hear lawyers' -on the points involved in the application. The principles involved are two-fold: In the first place, it contemplates that a still-horn suit should be properly buried, at its inception, so that no further time is consumed on a fruitless litigation. Secondly, it gives plaintiff a chance to retrace his steps, at the earliest possible moment, so that, if permissible under law, he may find properly constituted case. Order VII, rule 11 of the Code, enumerates certain categories under which the Court is called upon to reject a plant, but it is obvious that they are not exhaustive..
It appears from the language of rule 11 of Order VII that it requires that an incompetent suit should he laid at rest at the earliest moment so that no further time is wasted over what is hound to collapse as not being permitted by law. A suit may he specifically barred by law and, in such an event, the matter would come under the express terms of clause (d) of rule 11 of Order VII of the Code. But, even in a case where a .Suit is not permitted by necessary implication of law in the sense that a positive prohibition can be spelt out of legal provisions, the Court has an inherent jurisdiction to reject the plaint. This really amounts to saying that Order VII, rule 11, is not exhaustive."
A similar view was taken by the Supreme Court of India in AIR 1977 SC (Ind.) 2421, where the proposition was resolved in the following manner:- "--If on a meaningful--not formal-reading of the plaint it is manifestly vexatious, and maritless, in the sense of not disclosing a clear right to sue, the trial Court should exercise its power under 0.7 R.
11, CPC taking care to see that the ground mentioned therein is fulfilled. The trail Court should insist imperatively on examining the party at the first hearing so that bogus litigation can be shot down at the earliest stage."
The proposition also attracted the attention of the Karachi High Court in a Division Bench case (Muhammad Yusuf Memon v. Karachi Stock Exchange (Guarantee) Ltd. 1995 CLC 183, wherein it was held as under:- "--Order 11, R. 2, 0.XXXIII, R. 1(3) & 0.VII, R. 11--rejection of plaint of subsequent suit filed by plaintiff-- Plaintiff had withdrawn his earlier suit unconditionally-Plaintiff's subsequent suit contained same cause of action as the earlier one--Plaintiff, in subsequent suit, however, had included an additional relief for settlement of outstanding account which he had not included in the earlier suit--Effect--Provisions of 0.11, R. 2 CPC. Clearly specify that in any suit whole of the claim to which plaintiff was. Entitled should be included--Where plaintiff omits to sue in respect of any portion of his claim or any relief, then he would be debarred to sue for the same afterwards--Earlier suit on the same cause of action as the subsequent one having not included relief for settlement of accounts, subsequent suit demanding such relief was barred under provision of 0.11, R. 2, CPC-- Remaining reliefs were obtained in earlier suit which having been withdrawn unconditionally, plaintiff would be barred from bringing subsequent suit on the same cause of action.--"
9. In the present case, the admitted position is that the plaintiff filed 2 suits before tiling the present one, out of which one was dismissed for want of prosecution and the other was withdrawn by the plaintiff, in respect of the land, the subject of dispute herein between the same parties, except the additional relief claimed which was omitted by him in the earlier suits, i.e. To challenge the sale- deed executed on November 25, 1996 and mutation attested on its basis. It is also undenied that the suits earlier dismissed by the Court, attained finality as no application, appeal or revision is pending or has been decided. It is also not disputed between the parties that the present suit was tiled without any permission from the Court to tile a fresh suit, at the time of withdrawal of the earlier suit. Therefore, no elaborate discussion is required that the latter suit cannot proceed as the plaintiff is precluded from tiling a fresh suit on the same subject-matter against the same parties.
It may also be clarified that the plaintiff's suit, apart from being barred under Rule 9, Order 8, Rule 2, Order 2 and Order 23, CPC is also hit by the doctrine of res judicata, under Section .111 (Explanation- 1V), reproduced above. The District Judge failed to apply his mind keeping in view the law that incompetent suits should be laid at rest at the earlier moment, under the inherent jurisdiction of the Court, to reject or dismiss the plaint, under Order 7, Rule 11, CPC, for the aforesaid rule being not exhaustive. Therefore, it is safely held that the District Judge has acted in an illegal manner, as such, the order passed by him, is set aside by accepting the appeal. Consequently, the suit of the plaintiff-respondent is dismissed.