1. ' The defendants through C.M.As. Nos.1103 of 1999, 1104 of 1999 and 5637 of 1999 have prayed for rejection of the plaint on the grounds of (1) barred under Order 23, Rule 1, C.P.C. (2) barred under the provisions of Rule 2 of Order 2, C.P.C. (3) barred by section 11, C.P.C. And (4) plaint does not disclose any cause of action against the defendants.
2. ' The facts which are not disputed can be summarized which are relevant for the disposal of the present application are that the plaintiffs are a private limited company, carrying on business in commercial venture, whereas, defendants' company is engaged in manufacturing and marketing of elevators and escalators and other several equipment. The plaintiff was appointed representative for the Pakistan territory by the defendants by agreement, dated 1-7-1984, representing the defendants for furnishing and installing of Otis equipment in Pakistan which was for the period of three years extendable year to year basis with right of termination by either party with 120 days' advance notice by registered mail address to the other party at its office. The defendant No,2 served, notice on the plaintiffs on 3-7-1992 intimating the termination to be effective 120 days after the date of the notice. The plaintiffs' efforts for reconciliation for continuation of the agreement remained futile, ultimately, Suit No,697 of 1992 was filed by the plaintiffs against the defendants for declaration, injunction and damages on account of termination of agreement in the sum of Rs, five Crores and on account of compensation and general damages due to the loss of reputation and goodwill in the sum of Rs, five crores. The cause of action shown in the plaint having arisen on account of termination notice on 3-7-1992 and lastly on 16-10-1992 on account of terminal action.
3. ' On 3-1-1996, C.M.A. No,1240 of 1996 under section 23, Rule 1, C.P.C. Was filed in the suit seeking permission to withdraw the suit as the claim of the plaintiffs has been settled out of Court. The suit was dismissed on 13-3-1996.
4. ' On 1-9-1998, the plaintiff filed present suit (second one), which was registered as Suit No, 1099 of 1998 for recovery of damages in the sum of Rs,1,101,555,000. The details of claim of damages per para. 12 of the plaint are as follows:-- Aiwan-e-Iqbal Complex Lahore Item Actual Cost Damages Claimed Spare parts Rs,7,00,000 Rs,50,00,000 Item Actual Cost Damages Claimed Replacement of 16 Nos.
5. Guide ShoeRs,76,000 Rs,3,80,000 Wrong Layout Drawing Labour charges of 2 years approximately (Rs.60,00,000 Approximately)Rs,30,00,000 Replacement of faulty PartsRs.1,00,000 Rs.5,00,000 Operation & Maintenance Manual--- Rs.5,00,000 Repair of Motor Rs.1,50,000 Rs.7,50,000 Repair of Logic Board Rs.75,000 Rs. 3,75,000 Holdup our payment of Rs,37,00,000--- Rs.5,00,00,000 Labour charges being Incurred due to delay In Handing over of the lifts.Rs.6,00,000 Rs.60,00,000 Overseas Pakistanis Foundation Islamabad Item Actual Cost Damages Claimed Delay in payment of Rs.30,00,000 due to faulty EPROM Non-provision of Arrival Gong Facility.--- Rs .1,50,00,000 N.D.F.C. KARACHI Rs .50,000 Expenses incurred on Purchase of damaged Encoder Holdup of our retention Money of Rs.
6. 3,50,000 since last three years which is still held up Rs,2,00,00,000 Total: 10,15,55,000 ' The accrual of cause of action has been shown in para. No,14 in the following words:- "That the cause of action accrued to the plaintiff against the defendants on 3-7-1992 when the defendants terminated the sole agency, dated 1-7-1984 for furnishing and installing Otis equipment in Pakistan exclusively, thereafter on 13-3-1996 when the plaintiff withdrew their Suit No,697 of 1992 and made the payments to the defendants of the rental of MECS Tools and on 12-8- 1998 when the plaintiffs sent legal notice to the defendants and is continuing to date."
7. ' The defendants were served. They have also filed their written statement as well as the applications under disposal, for rejection of the plaint.
8. ' At the hearing of the application, I had the advantage of the hearing full arguments from the learned Advocates, who appeared in this case. The grounds raised and conversed before me by the defendants' counsel can be summarized as follows:--
(1) The suit is barred under the provisions or Order 23, Rule 1, C.P.C.
(2) The suit is barred under the provisions of Order 2, Rule 2, C.P.C.
9. ' Rule 11 of Order 7 casts a duty upon the Court to reject the plaint under the circumstances which have been enumerated therein, which reads as follows:- "11. Rejection of plaint.--- The plaint shall be rejected in the following cases--
(a) where it does not disclose a cause of action;
(b) where the relief claimed is under-valued, and the plaintiff, no being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;
(c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp paper within a time to be fixed by the Court, fails to do so;
(d) where the suit appears from the statement in the plaint to be barred by any law."
10. ' (The clauses (b) and (c) of Rule 11 of Order 7 are not applicable to proceeding before the High Court in cases of its ordinary or extraordinary Civil jurisdiction).
11. ' Under Order 7, 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. The Court can, and, in most cases, hear lawyers on the points involved in the application. In fact, this is what has happened in the present case.
12. The principles involved are two-folds: in the first place, it contemplates that a still born suit should be properly buried, at its inception, secondly, it gives plaintiff a chance to retrace his steps, at the earliest possible moment, so that, if permissible under law, he may find a properly constituted suit.
13. ' It appears from the language of Rule 11 of Order 7 that it requires that an incompetent suit should be laid at rest at the earliest moment so that no further time is wasted over what has been bound to collapse as not being permitted by law.
14. ' Mr. Khalid Rehman, learned counsel for the defendants has conversed before me with vehemence that the present suit of the plaintiff for damages is based on the termination of representative agreement. He further contended that on the same cause of action, the plaintiff had filed a suit not only for damages but declaration and injunction as well by way of Suit No,697 of 1992, which was withdrawn by the plaintiff under Order 23, Rule 1, C.P.C. As such the present suit of the plaintiff is barred under the provisions of Order 23, Rule 1, C.P.C. To support his contentions, he has referred the cases of (1) Abdul Rasheed Saudagar v. S.M. Lalita Rai PLD 1959 SC 287, (2) Mir Zaman v. Mst.
15. Magum Jan PLD 1983 Pesh. 100, (3) Abdul Karim Butt v. Government of Balochistan 1989 CLC 1625 and lastly, (4) Bashiran Bibi v. Hidayatullah 1996 SCMR 1051.
16. In above cases, the ratio decided was that if a suit is withdrawn by a party under Order 23, Rule 1, sub-rule (1), C.P.C. Unconditionally, he is precluded from bringing a fresh suit under sub-rule 3 of Rule 1 of Order 23 on the same cause of action.
17. ' The basic principle in Bar of a parties right to sue is that he is not barred from suing unless the suit is barred by some provisions of C.P.C. Such provisions are found in scattered places in the Code, and most important of them are section 11, Order 2, Rule 2. Order 9, Rule 9, Rule 1 of Order 23. The provisions of Rule 1 of Order 23 and Order 2, Rule 2, which are relevant for the disposal of the present applications are reproduced in order to appreciate the contentions raised.
18. "Order 23 Rule 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
(b) that there are other sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim, it may, on such terms as it thinks fit, 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 such subject of such suit or such part of a claim.
(3) Where the plaintiff withdraws from a suit, or abandons part of a claim, with the permission referred to in sub-rule (ii), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim.
(4) Nothing in this rule shall be deemed to authorise the Court to permit one of several plaintiffs to withdraw without the consent of the others.
19. ' Order 2, Rule 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.
20. 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.
21. Omission to sue for one of several reliefs.--(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.'
22. ' In the present case, the plaintiff's suit was based on the cause of action on termination of agency agreement on 3-7-1992 being Suit No,697 of 1992, which was dismissed as withdrawn on the statement made by the plaintiff, in their application under Order 23, Rule 1, C.P.C. In the following terms:-- "It is respectfully prayed on behalf of the plaintiff above named that this Honourable Court may kindly be pleased to permit the parties to withdraw the suit as the claim of the plaintiff has been settled out of Court.
23. ' It is further prayed that the abovementioned suit may kindly be dismissed as withdrawn."
24. ' On perusal of the plaint of the present suit, the plaintiff has also based the suit on the cause of actions on termination of the agreement on 3-7-1992 date of withdrawal of the suit on 13-3-1996 and payment made to the defendants on 12-8-1998 and have claimed damages, the details of which have been given in para. 12 of the plaint reproduced hereinabove.
25. ' In Haji Abdul Rasheed Saudagar (supra) referred by learned counsel for the defendants, late Justice Munir (as he then was) pointed out the difference between the sub-rules (i) and (ii) of Rule 1 of Order 23 of the C.P.C. And opined that under sub-rule (ii), the withdrawal is complete the moment, the order of that effect is recorded and the right to bring a fresh suit follows from the withdrawal so permitted to such an order of withdrawal. Whereas the result of a withdrawal without permission, under sub-rule (1) is that plaintiff by sub-rule (3) is precluded from instituting a fresh suit. It was further pointed out that provisions of sub-rule (3) do not apply to withdraw under sub- rule (2) it being restricted to the withdrawal under sub-rule (1) of Rule 1 of Order 23, C.P.C.
26. ' The result of the withdrawal without permission under sub-rule (1) is that the plaintiff by sub-rule
(3) is precluded from instituting a fresh suit on the same cause of action.
27. ' The learned counsel for the defendants further contended that the plaintiff in earlier suit had claimed the damages as well and they have again filed the suit claiming the damages. The plaintiff's subsequent suit is also barred under the provisions of Order 2, Rule 2. Once the 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.
28. ' Mr. Khalid Rehman, learned counsel for the defendants contended that once the plaintiff relinquished a part of the claim for damages cannot claim in a subsequent suit and he referred the cases of (1) Naba Kumar Hazro and another v. Radhashyam Mahish and others AIR 1931 PC 229, wherein it was observed that relief arising out of the same cause of action as in previous suit cannot be granted. (2) M.K. Abbasi v. United Bank Ltd. 1983 CLC 482, wherein it was held that relief once omitted plaintiff is precluded from afterwards suing for any relief so omitted, any subsequent suit even the splitting of claims arising out of same cause of action not permissible as a party cannot be vexed twice. The relevant passage is instructive which is reproduced as under:-- "Order II, Rule 2, C.P.C. Provides that if the plaintiff omits to sue for all the claims and reliefs to which he is entitled on a cause of _ action then the plaintiff would not be entitled afterwards to sue in, respect of the portion of claim so omitted or relinquished. But where the plaintiff is entitled to more than one relief in respect of the cause of action and fails to seek all the reliefs then he can ask for it only with leave of the Court. The provisions of Order II, Rule 2, therefore, clearly distinguish between claim and relief. A claim once omitted or relinquished cannot be made subject-matter of a subsequent suit on the same cause of action. In case a relief is omitted the plaintiff would be precluded from afterwards suing for any relief so omitted. However, Order II, Rule 2(3) provides an exception and if the omission is with the leave of the Court then this bar will not apply. The bar provided by Order II, Rule 2 shall apply where the previous and subsequent suits are based on the same cause of action. Reference can be made to Muhammad Khalil Khan and others v. Mehbub Ali Mian and others PLD 1948 PC 131 Abdul Hakim v. Saadullah Khan PLD 1970 SC 63 and AIR 1935 Lah.
672. Another condition for applicability of Order II, Rule 2, C.P.C. As held in PLD 1970 SC 63 is that in both the suits the parties should be same. It is, thus, well-settled that the law does not permit splitting of claim arising out of the same cause of action, as a party cannot be vexed twice for the same cause and it will avoid multiplicity of suits."
29. ' Ch. Zahid Jameel, Advocate for plaintiff while conceding about the proposition enunciated in cases referred by the learned counsel for the defendants, maintained that the plaintiffs had withdrawn their suit on the promise of the defendants that they will restore the agreement but after withdrawal, they have backed out from the compromise, as such, they are stopped by the principles of promissory estoppel to challenge the maintainability of the suit. He further contended that the plaintiff's claim regarding damages is based on continuous cause of action, as such, the subsequent suit would not be barred.
30. ' I am of the view that neither the plea of promissory estoppel is available for the reasons that no estoppel against the law nor the continuance of cause of action. Both suits filed by the plaintiff are based on the termination notice and termination of the agreement. I am of the view that matter of withdrawal of the previous suit nor the alleged payment by plaintiff will give them fresh cause of action to institute a fresh suit.
31. The earlier suit was withdrawn unconditionally under the provisions of sub-rule (1) of Rule 1 of Order 23, C.P.C. Thus, the plaintiff is precluded from instituting fresh suit on the same cause of action under sub-rule (3) of Rule 1 of Order 23, C.P.C.
32. ' Turning now to the plaint in the present suit, it is obvious from mere perusal that it is a suit for damages based on same cause of action. In earlier suit the plaintiff has claimed damages as well under clause (iii) as follows:-- "(iii) That on account of impugned termination, the plaintiffs claim the amount of Rs, 5 Crores on account of reimbursement, compensation and for general and special damages on account of loss of reputation, loss of goodwill etc. In the sum of Rs,5 Crores."
33. ' They cannot claim damages in subsequent suit in view of bar under the provisions of Order 2, Rule 2, C.P.C. For the reasons that the relief of damages was claimed in earlier suit, same cannot be done without leave of the Court which is missing in this case.
34. The result, therefore, is that under the provisions of sub-rule (3) of ' Rule 1 of Order 23 and under Order 2, Rule 2 the suit is barred and the plaint is liable to be rejected under Order 7, Rule 11, C.P.C.
35. ' Other points need not to be discussed as the same has not been argued. Consequently, the plaint of the plaintiff's suit is rejected under the provisions of Order 7, Rule 11, C.P.C., with costs of Rs,20,000.
36. ' These are the reasons of short order announced on 14-3-2000.
37. Plaint rejected.