' RANA BHAGWAN DAS, J.---This petition for leave to appeal is directed against the judgment dated 31-5-2000 of High Court of Sindh in which arguments were heard on 13-12-1999 and 20-12-1999. By the impugned judgment a learned Judge in Chambers, in the exercise of civil revisional jurisdiction under section 115, C.P.C., set aside the appellate Court's judgment holding that the second suit in relation to the same property was not maintainable and restored the judgment passed by Senior Civil Judge expressing the view that the second suit filed after dismissal of the earlier suit under Order IX, Rule 9, C.P.C. Was maintainable.
2. One Khuda Bux Samtio owned 12-29 acres of land and died in 1954 leaving behind his widow Mst.
Shahul, three sons, namely, Gul Muhammad, Ali Muhammad and Atta Muhammad and a daughter Mst. Ghulam Fatima as his legal heirs. After his death, his daughter Ghulam Fatima and his widow Mst. Shahul, statedly illiterate and Purdanasheen ladies, lived with Gul Muhammad, the full brother of Mst. Ghulam Fatima. However, two brothers, i.e, Atta Muhammad and Ali Muhammad lived separately. Mst. Shahul and Mst. Ghulam Fatima enjoyed and shared the produce of the suit land with Gul Muhammad until 1964 when he died. After Mst. Shahul's death in 1981, Mst. Ghulam Fatima continued to enjoy the possession and proceeds of the land. In 1983 petitioner Muhammad Chuttal made an application to the Mukhtiarkar Larkana claiming ownership rights on the basis of a registered sale-deed purportedly executed by Mst. Shahul and Mst. Ghulam Fatima in 1962. He complained that Haris of the land were not sharing the produce with him, which fact was enquired into by the Mukhtiarkar. He summoned the Haris who denied Muhammad Chuttal's claim and informed Mst. Ghulam Fatima about it. Consequently, Mst. Ghulam Fatima filed Suit No,113 of 1982 in the Civil Court Larkana against Muhammad Chuttal seeking cancellation of the sale-deed and permanent injunction on the averments that Muhammad Chuttal had influenced her and her mother and taking advantage of their illiteracy made them in sign a document what he called the power of attorney, which later turned out to be a sale-deed. She prayed for following reliefs:--
(1) That the impugned sale-deed dated 25-7-1962 be cancelled as being fraudulent and void document;
(2) That the defendant be restrained from interfering with her possession and enjoyment of the suit land.
3. During the pendency of the proceedings Mst. Ghulam Fatima died and Atta Muhammad, her consanguine brother, was substituted in her place. The suit was, however, dismissed for default on 22-10-1984. An application for restoration in terms of Order IX, Rule 9, C.P.C. Was dismissed, as also an appeal against the order of dismissal. Later, when Muhammad Chuttal challenged his ownership, said Atta Muhammad filed Suit No,57 of 1985 in Civil Court Larkana against the petitioner for cancellation of the sale-deed and perpetual injunction claiming that after the death of Mst. Ghulam Fatima, he had been in possession and enjoyment of suit land and that the alleged sale-deed by which Mst. Shahul and Mst. Ghulam Fatima allegedly sold the land was false, forged and fraudulent. In the relief clause he made same prayers as in the earlier suit brought by Mst.
Ghulam Fatima.
4. In his written statement the petitioner asserted that the sale-deed was executed by Mst. Shahul and Mst. Ghulam Fatima with full knowledge and understanding of the nature of transaction. He raised a question of law that the subsequent suit was not maintainable as the previous suit had been dismissed in default under Order IX, Rule 9, as also the appeal filed against the dismissal order which attained finality. After settlement of issues and recording evidence, trial Court came to the conclusion that defendant Muhammad Chuttal had failed to prove his title and decreed the suit. In Civil Appeal No,82 of 1991 before an Additional District Judge, vide judgment dated 25-2- 1998 findings of fact by the trial Court were maintained but the suit was dismissed on the legal score as being barred by Order IX, Rule 9, C.P.C.
5. Again as the luck would have been, during the pendency of litigation, Atta Muhammad also died and was substituted by his legal heirs who impugned the judgment and decree of the appellate Court in civil revision before the High Court, which was accepted leading to this petition for leave to appeal.
6. In arriving at the conclusion, learned High Court relied upon the definition of "cause of action" as given in Black's Law Dictionary, VIth Edition (1990) page 221, judgment of this Court in Jumma Khan v. Mahmud Khan 1973 SCM R 289 and a Lahore High Court decision in Fazal Begum v. Municipal Corporation Lahore 1983 CLC 1643.
7. It may be pertinent to observe that operative part of rule 9 of Order IX, C.P.C. Contemplates that where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action.
8. Laying much emphasis on the expression "same cause of action", Mr. M.L. Shahani, Advocate Supreme Court, learned counsel for the petitioner, inter alia, contended that the judgment of High Court rendered after more than five months of the conclusion of the arguments cannot be sustained in law and the case should have been heard afresh; that the subsequent suit in respect of same cause of action after the dismissal of the earlier suit in default relating to same corpus was patently not maintainable and that the High Court was not legally justified in holding that the subsequent suit in respect of same transaction was a new cause of action. Lastly, learned counsel strenuously urged that the relief granted by the High Court was violative of the law of limitation inasmuch as a suit for cancellation of a registered instrument could be filed within a period of three years in terms of Article 91 of the Schedule to the Limitation Act and the judgment offended section 39 of the Specific Relief Act.
9. As there is a conflict of opinion on an important question of law between the Courts below, in order to examine the contentions raised and to ensure whether the ratio in Juma Khan's case (supra) was correctly applied by the High Court, we are inclined to grant leave to appeal. Order accordingly.