DEEDAR HUSSAIN SHAH, J.---This appeal under Article 185(2) of the Constitution of Islamic Republic of Pakistan, 1973 is directed against the judgment dated 13-6-1994, passed by the High Court of Balochistan, Quetta in RFA No,16 of 1994.
2. The relevant facts of this case are that Hashim Khan appellant opened a Current Account No,985 in the National Bank of Pakistan, Jinnah Road, Quetta. In ordinary course of business the appellant had been depositing various amounts on the basis of pay-in-slips, counterfoils whereof were retained by him. Between 31-5-1981 to 7-5-1983 he deposited an amount of Rs,31,24,918 in the bank through pay-in-slips validly issued by Bank Manager and other officials in ordinary course of business. Bahadur Khan, Manager, who was posted in the said Branch during the relevant period, was found responsible for misappropriating huge amounts from the Bank. The appellant lodged his claim with the National Bank Authorities and thereafter filed a civil suit on 11-12-1985, seeking the following reliefs:-- "The plaintiff thus begs to pray for grant of decree against the defendant in the terms as under:
(a) The defendant be directed to allow the credit of 35 pay-in-slips for the sum of Rs,34,24,980 in Account No,CA-985 with its Jinnah Road Branch at Quetta.
(b) And/or a decree for payment of Rs,34,24,980 be granted in favour of plaintiff and against the defendant."
3. Vide judgment and decree, dated 9-10-1988, the Additional District Judge-I, Quetta, granted an ex parte decree in favour of the appellant, which was challenged by the respondent-Bank before the High Court through RFA No,2/89. The said appeal was accepted vide judgment dated 10-6- 1989, and the case was remanded. Against the aforesaid judgment the appellant preferred a petition for leave to appeal before this Court, which was ultimately dismissed on 5-8-1991. During the remand proceedings the parties reached at compromise and the appellant agreed to receive a sum of Rs,24,40,110. Consequently the suit for recovery of Rs,34,24,980 was withdrawn on 3-11-1991.
However, after receipt of Rs,24,40,110, the appellant claimed payment, of Rs,28,47,720 for blocking his amount with calculation of loss at 8% per annum. Thereafter, the appellant filed a suit for the recovery of said amount alongwith interest at the prevailing banking rate. The respondent-bank resisted the suit and filed detailed written statement on 21-11-1992.
4. By judgment and decree dated 28-2-1994, the learned trial Court decreed the suit in favour of the appellant in the following terms:-- "As such the plaintiff has proved his case and Issues Nos.3 to 5 are settled in his favour, thus the suit of the plaintiff is decreed as that plaintiff is entitled for a sum of Rs,28,47,720, alongwith interest/profit at the rate of 14% per annum with quarterly rests with effect from 1-11-1991 till today i,e, 28-8-1994. Further he is entitled for an interest at the rate of 6% per annum with quarterly rests over the amount of Rs,24,40,110 for the period the amount remained blocked with the defendant bank. The defendant is directed to pay the said amount to the plaintiff. Decree-sheet be prepared, file after completion be consigned to record. Parties are left to bear their own costs."
5. The aforesaid judgment and decree was challenged by -the respondent-bank through R.F.A.
No,16 of 1994 in the High Court of Balochistan, Quetta, which was accepted by a Division Bench vide judgment dated 13-6-1994.
6. Mr. Fazal-e-Ghani Khan learned counsel for the appellant, contended that the learned Judges of the High Court did not consider the case of the appellant in its true perspective and arrived at a conclusion which is not justified; that the impugned judgment has upset the decree of the lower Court mainly on the basis of provisions of Order II, rule 2, C.P.C. Which in any case, was not attracted to the facts of the present case; that the provisions of Order XXIII, rules 1(3) and 2, C.P.C. In this particular case were not attracted, inasmuch as the present suit was based on an independent cause of action which had only accrued at the time when bank admitted the blockage of the amount and that the bar of limitation was also not pleaded by the respondent- bank in their written statement before the trial Court and that for the first time during hearing of the arguments the same was raised before the learned High Court, which was also seriously contested, but the learned High Court, by misinterpreting the law held that the claim was barred by time.
Learned counsel for the appellant has cited the following plethora of case law: Venkatadri Appa Rao v. Parthasabathi AIR 1925 PC 105; Indian Cable Co. Ltd. v. Sumitra Chakraborty AIR 1985 Cal. 248; Mitlia Khan v. Muhammad Younus 1991 SCM R 2030; Abdul Hakim v. Saadullah Khan PLD 1970 SC 63; Muhammad Tahir v. Abdul Latif 1990 SCMR 75; Nazima Begum v. Hasina Begum 1991 SCM R 177; Fayyaz Hussain v. Tahir Naseem PLD 1992 Kar. 423; Asghar Ali v. Sulaimanji AIR (34) 1947 Nag. 177; Muhammad Yateem v. Ghulam Nabi PLD 1975 Lah. 563; Hoosen Brothers Ltd. v. S. Abdullah & Co. PLD 1971 Kar. 729 Hoosain Bux v. Dur Muhammad PLD 1963 (W.P.) Kar. 969. Learned counsel has also referred to Halsbury's Laws of England,Vol. 12, para.1172, p.461; Tannan's Banking Law and Practice in India, and Megregar on Damages, 14th Edition.
7. Learned counsel for the respondent-bank pointed out that the appellant in the suit did not claim damages or interest; that during the pendency of the suit the appellant wilfully relinquished his claim which he did not claim in the first suit i,e, compensation, interest etc.; that the appellant did not reserve his right to claim compensation for filing subsequent suit; and that the above referred case-law, relied upon by the learned counsel for the appellant, was also cited before the learned High Court, which had been duly considered, analyzed and appraised in the impugned judgment, which is very extensive and based on sound and plausible reasons and, therefore, the same may be maintained.
8. For the just decision of this appeal it would be advantageous to refer to the application of the appellant addressed to the Regional Head, National Bank of Pakistan, Quetta, which reads as under:-- "Re: PAYMENT OF MY CLAIM FOR RS.24,40,110 A/C 985 WITH M.A. JINNAH ROAD BRANCH, QUETTA, With reference to your letter No,PLQ/EF/NAJ/claim 279, dated 10-1-1991, I am enclosing the following:
1. All original receipts (2)
2. Court order (in original) regarding withdrawal of suit filed by me against the bank.
3. Indemnity Bond will be submitted to the Branch before payment. Further, I confirm that the above claim has been settled in my favour to my full satisfaction." On 3-11-1991 the case was anti-dated at the request of the appellant and the learned Additional District Judge-I, Quetta, passed the following order:-- "Counsel for plaintiff Mr. Abdus Samad Dogar Advocate present. Counsel for defendant Mr. Kalaan Kohli, Advocate present. Alongwith application for withdrawal of the suit the plaintiff has filed application for anti-date, the counsel for defendant has no objection on any of the application as the defendant vide letter dated 10-10-1991 has agreed to pay the claim of plaintiff on condition specified in the letter which includes withdrawal of the suit hence by the consent of counsel of defendants the suit is dismissed as withdrawn. Parties to bear their own cost."
9. In view of these two documents, we now refer to the provisions of Order II, rule 2, C.P.C. The reading of the said provisions in very clear terms discloses that omission or failure to include any of the reliefs operates as relinquishment of such claim, it is essential that party instituting proceedings should include all reliefs flowing out of main grievance, otherwise omission would be fatal, as such, it would be essential for the plaintiff to assert claimable reliefs concerning the grievance of cause of action. However, if any such relief which flows out of basic grievance is not claimed or omitted, then such party stands precluded from agitating those reliefs subsequently.
The main object of the above provisions is to avoid splitting of claim and restrict multiplicity of litigation in the matter. It would also be advantageous to refer to the provisions of Order XXIII, rules 1(3) and 2, which read as under:- "1. Withdrawal of suit or abandonment of part of claim.--(1) At any time after institution of a suit the plaintiff may, as against all or any of the defendants, withdraw his suit or abandon part of the 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 fresh suit for the subject-matter of a suit or part of 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 the subject-matter of such suit or such part of claim.
(3) Where the plaintiff withdraws from a suit, or abandons part of claim, without the permission referred to in sub-rule (2), 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.
2. Limitation law not affected by first suit.--In any fresh suit instituted on permission granted under the last preceding rule, the plaintiff shall be bound by the law of limitation in the same manner as if the first suit had not been instituted."
10. It may also be observed that during previous suit payment was made to the appellant subject to conditions contained in letter dated 10-10-1991, referred to hereinabove. The appellant also submitted reply with willingness for unconditional withdrawal of the suit subject to payment of Rs,24,40,110 towards full satisfaction of his claim. The withdrawal order passed by the Court mentioned hereinabove further shows that withdrawal simpliciter was without granting permission to file fresh suit. Under the circumstances, such withdrawal under abovementioned orders debars institution of any fresh proceedings concerning such matter or part thereof. It is borne out from the record that payment of Rs,24,40,110 was made in full and final settlement of the total liabilities accruing in connection with deposit made by the appellant with the respondent-bank. Admittedly, originally compensation or interest was not claimed. Moreover, while compromising with the respondent-bank outside the Court, whereby such settlement was effected, no such demand was put forth by the appellant towards the payment of compensation or interest. Under these circumstances, the subsequent suit for compensation regarding blockage of money or interest with regard to original amount, in our considered view, is not based on sound reasons, which cannot be accepted.
11. Subsequently in the suit filed by the appellant no fresh cause of action had accrued to him. The statement/application tiled by the appellant as well as the order of the Court allowing withdrawal of the suit clearly shows that the appellant agreed to compromise with the bank and relinquished his other claim by filing statement for full and final settlement of his claim. It has rightly been pointed out by the learned counsel for the respondent that the appellant relinquished his claim and he did not reserve the right to claim compensation for filing the suit, as such his claim was not allowed by the learned High Court.
12. The case-law cited here by the learned counsel for the appellant has already been discussed in the impugned judgment of the learned High Court with sound and cogent reasons, holding that the same is neither relevant nor applicable to the facts of the present case. In Tennan's Banking Law and Practice in India, 19th Edition, 1997, Volume I, at page 182, it has been laid down that: "Banker to afford facility to the customer to draw funds from the bank by issue of cheques.--The essence of relationship of banker and customer is the affording of the facility to the customer to draw funds from the bank by issuing of cheques. In the absence of such a facility the term bankers, though loosely applied to money-lenders cannot be applied to ordinary money-lending business carried on by Nattukottal Chettiars to Indian or in foregoing parts. Hence the rules of common, law regarding the liability of a bank to pay the amount only at the branch where it is deposited cannot be applied to transactions with such money-lender. Where money is deposited in Indian currency with a money-lender, who is a permanent resident of India it is implicit that the borrower agrees to repay the money back to India and in Indian currency. The investment Of the amount is a foreign firm is merely incidental to the use of the loan. A debt arising out of a contract is deemed to be situated in the place where it is properly recoverable that is normally the country where the debtor is resident." In Megregor on Damages, 14th Edition, page 8, it is laid down that "the rule is that the plaintiff is entitled to be placed so far as money can do it, in the same position as he would have been in, had the contract been performed". In Haisbury's Laws of England Vol. 12, para.1172, at page 461, it is laid down that: "1172. Duty arising under contract.--It would seem that where a plaintiff has to rely on a contract in order to establish a duty (including a duty of care) the measure of damages will be that in contract, in so far as that may differ from the measure in tort. If a plaintiff can establish his cause of action in tort without recourse to a contract the action is one in tort, even though there may be a contract in which a duty of care is implied." Citations of these law books, in our opinion, are not attracted to the decision of the present appeal.
13. There is also another aspect of the case that the respondent-bank did not raise plea that the suit was barred by time. The learned High Court keeping in view the above position has dilated upon this aspect and observed as follows:-- "Now examining the objections concerning bar of limitation, apparently compensation related to period commencing from year 1983 when amount deposited by respondent was allegedly blocked.
Whether Article 60 or Article 115 of Limitation Act is applied, ex facto compensation beyond three years from institution of suit would be expressly barred by time. This is well-settled that plaintiff must satisfy the Court that suit did not suffer from limitation even if objection had not been raised.
It would be profitable to refer principle of law contained in PLD 1985 Supreme Court 153 (Hakim Muhammad Buta and another v. Habib Ahmed and others) PLD 1993 Supreme Court 147 (Province of the Punjab through Member Board of Revenue, Residual Properties v. Muhammad Hussain through legal heirs). Thus it was responsibility of plaintiff to explain how compensation for a period beyond three years, when it is not legally due could be claimed. Unfortunately trial Court has awarded the decree by glaringly overlooked above-discussed aspects of the case."
14. We have gone through the material placed on record and have also considered the arguments advanced by learned counsel for the parties. The learned High Court, after considering the contentions of the learned counsel for the parties, with sound and cogent reasons accepted the appeal of the respondent. We also do not find any error or irregularity in the impugned judgment, which is not open to exception at all. In view of what has been stated above, we are of the firm opinion that the appeal is without merit and substance, which is accordingly dismissed.