' On 17-10-1991, Muhammad Mansha petitioner herein filed a suit against respondent No,1 praying for declaration that the plaintiff is entitled to get the sale-deed registered in his favour on the basis of an agreement of sale, dated 22-4-1991. During the pendency of the said suit, the petitioner filed another suit for specific performance of the same agreement and also prayed for permanent injunction. During the course of hearing of the second suit, a miscellaneous application was moved by respondent No,1 for dismissal of the suit on the ground that it was barred by Order 2, Rule 2, C.P.C. That application was rejected by the Civil Judge but on revision the learned Additional District Judge took the view that the petitioner should have claimed the relief of specific performance in the first suit and the second suit was barred by Order 2, Rule 2, C.P.C. He consequently, dismissed the suit leaving the parties to bear their own costs.
2. It has been contended by the learned counsel for the petitioner that the first suit for declaration was not competent and as such the petitioner was entitled to file a suit for specific performance during the pendency of the other suit and the suit for specific performance could not be said to be barred by Order 2, Rule 2, C.P.C. He has relied upon Ghulam Nabi and others v. Seth Muhammad Yaqoob PLD 1983 SC 344.
3. The learned counsel for the respondents has, on the other hand, argued that it was the duty of the petitioner to have included the whole claim in the earlier suit and also to pr.Ay for specific performance but he failed to do so with the result that the second suit was barred from filing a second suit under Order 2, Rule 2, C.P.C.
4. There is no merit in the stand taken by the learned counsel for the respondents. The only competent suit filed by the petitioner was the suit for specific performance and the earlier suit for declaration was not competent in law, therefore, the petitioner was not barred from filing the second suit claiming an appropriate relief. The case is squarely covered by the ratio of Ghulam Nabi's case (supra) wherein the Supreme Court was pleased to rule that Order 2, Rule 2 does not apply where the first suit was incompetent or was barred by law. In that case, a suit for injunction had been filed on the basis of agreement for safe and during the pendency of that suit, the suit for specific performance was initiated. An objection was raised that the second suit was barred by Order 2, Rule 2, C.P.C. But the same was repelled by observing that the earlier suit for permanent injunction was not competent and the only appropriate suit was the suit for specific performance which could not be dismissed on the basis of Order 2, Rule 2, C.P.C.
' In view of what has been said above, this petition is allowed and the judgment and order of the learned Additional District Judge, dated 3-3-1996 is declared to be without any lawful authority and of no legal effect, with the result that the suit of the petitioner shall be deemed to be pending before the trial Court and shall be decided afresh in accordance with law.
' As the matter has remained pending for a long period, it is directed that the hearing of the suit shall be completed by the Civil Judge concerned within a period of three months from today. No order as to costs.