' MUHAMMAD YUNUS SURAKHVI, J.---This appeal, with the leave of the Court, has been preferred against the judgment had decree of the High Court passed on 15-12-1998, whereby the appeal filed by the appellants, herein, was dismissed.
2. The necessary facts, giving rise to the present appeal, are that the plaintiff-appellants instituted a suit in the Court of District Judge Mirpur for recovery of an amount of Rs,63,000 against the defendant-respondents for the period falling between 13-9-1990 to 31-12-1995. Earlier a decree of the income of Shrine known as Shrine of "Saboot Shah" we passed in favour of plaintiff-appellants against the defendant-respondents on 30-9-1990, whereby they were held entitled to one half share of the income of the aforesaid Shrine at the rate of Rs,1,000 per month from the date of institution of the suit. The execution proceedings were started by the plaintiff-appellants on the basis of said decree in their favour for a period falling between 30-9-1990 to 31-12-1995, but their claim beyond the date of trial Court's decree was dismissed on the ground that decree in their favour was passed till the date of the decree of the trial Court, i,e, 30-9-1990.
3. Thereafter, the plaintiff-appellants filed a subsequent suit for their share for a period falling between 30-9-1990 to 31-12-1995. The objections were filed by the defendant-respondents to the effect that suit of the appellants was hit by the principle of resjudication was also not maintainable because the Shrine which was a necessary party, was not arrayed is one of the defendants. The objections were upheld by the District Judge and the suit filed by the appellants was dismissed. On appeal the findings of the District Judge were maintained by the High Court vide the impugned judgment and decree, dated 15-2-1998. Hence this appeal by way of leave of the Court.
4. It has been vehemently argued by Mr. Abdul Ghafoor Qureshi, the learned counsel for the appellants, that the previous decree which was passed in favour of appellant, was for the period which fell between the date of institution of the suit and date of decree of the trial Court. There was no question of claiming the share in income for the period which fell between 13-9-1990 to 11-12- 1995, or thereafter because the same had not expired when the previous suit was filed. The learned counsel has argued that The Court below as well as the High Court have committed error on both the counts in holding that the suit was hit by the principle of res judicata and the Shrine was a necessary party.
5. In reply Ali Muhammad the learned counsel for respondents, has urged that it was incumbent upon the appellants to claim the share in the income in the previous suit in such a manner that the plaintiffs would have got the relief for ever on the basis of said decree. Thus, according to the learned counsel, the plaintiff-appellants having failed to do so could not institute another suit for the recovery of their share as the same was hit by the principle of res judiata. The learned counsel pressed into service the submission that as the income liable to be recovered was the income of the Shrine, therefore, the same being a necessary party and in the event of its non-impleadment as one of the defendants the suit of the plaintiff was liable to be dismissed and the same was rightly dismissed by the trial Court and the High Court. The learned counsel further maintained that under Explanation IV of section 11 of the Code of Civil Procedure a point which might and ought to have been taken but is omitted to have been taken by the plaintiff in the previous suit, it would operate as resjudicata. The learned counsel also submitted that even under Order 11, Rule 2 of the Code of Civil Procedure the suit filed by the plaintiff-appellants was liable to be dismissed, as according to him, 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.
Thus, the learned counsel for the respondents maintained that the plaintiff's suit was rightly dismissed by the District Judge and the High Court.
6. After giving our due consideration to the arguments addressed at the Bar and perusing the relevant record, it may be stated that in a previous suit between the parties the decree was passed in favour of plaintiff-appellants from the period falling between 27-9-1987, the date of institution of the suit till 30-9-1990, the date of decision of the trial Court. In the present suit between the parties the plaintiff-appellants have claimed the share of income for the period which fell between 13-9- 1990 to 31-12-1995 and thereafter. Therefore, the controversy in issue between the parties at the present moment was not a point in issue between the parties in a previous litigation nor the plaintiff-appellants at that time had a cause of action with regard to the claim of the amount falling due from 30-9-1990 to 31-12-1995 and onwards. Thus, the cause of action for the above stated period accrued to the plaintiff after 13-9-1990. Hence it cannot be said that the matter in issue between the parties at the present stage was in any way in issue between them in a previous litigation. Therefore, we are clear in our mind that the principle of res-judicata has no application whatsoever in the instant case. Similarly the point urged by Kh. Ali Muhammad, the learned counsel for respondent, that the principle embodied in Order 11, Rule 2 of the Code of Civil Procedure that if a point has been omitted or intentionally relinquished by the plaintiff he shall not afterwards sue in respect of the point so omitted or relinquished, is also not tenable for the simple reason that the plaintiff-appellants could not possibly foresee the income of the period starting from 13-9-1990 to 31-12-1995 and onwards., as it was likely to increase or decrease with the passage of time. Thus, the question of -omitting or relinquishing a point which was not foreseeable in the future could not have been taken by the plaintiff-appellants in the previous suit. Suffice it to say that on the said point no issue was framed by the trial Court, therefore, the objection of the learned counsel for respondents stands disallowed.
7. As regards the objection for not impleading the Shrine as one of the defendants is concerned, the argument seems to be devoid of any legal force. The plaintiffs have filed the suit against the defendants for recovery of the amount of income of Shrine which the defendants were bound to pay to the plaintiffs in accordance with the compromise arrived at between the parties. The shrine itself has to pay nothing to the parties. Therefore, in our considered view the Shrine was not a necessary party entailing the dismissal of the suit of the plaintiff-appellants. A party is always necessary in the event if an effective decree could not have been executed in absence of that party but in the instant case previously a decree was passed in favor of plaintiff-appellants against the defendant-respondents which was executed for the period falling between 27-9-1987 to 13-9-1990, and now that this belated stage it could not be said that in the present suit the decree if passed in favor of plaintiffs could not have been executed in absence of implement of Shrine as a party. Moreover, Order 1, Rule 10 sub-rule (2) of the Code of Civil Procedure provides that the Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added. Had the trial Court felt the necessity of addition of any party, it could have asked die plaintiff to do the needful, but no such course was adopted by the trial Court. Even otherwise we are of the view that since the amount in dispute is liable to be recovered from the defendants the Shrine would not be a necessary party so as to entail the dismissal of the suit of the plaintiff-appellants
8. In the light of what has been stated above, by accepting the appeal and setting aside the impugned judgment and decree of the High Court and that of the District Judge Mirpur, we remand the case to the District Judge for deciding it afresh on merits in accordance with law.