SARDAR SAID MUHAMMAD KHAN, C.J.- This appeal has been directed against the judgment and decree of the High Court dated 28.5.1999, whereby the judgment and decree of the District Judge, Bagh were set aside and that of Sub-Judge, Dhirkot, were restored.
2. The brief facts of the case are that the appellant filed a suit on 13.10.1997 for the cancellation of the sale-deed dated 2.3.1996 and 25.11.1996 in the Court of Sub-Judge, Dhirkot pertaining to survey numbers mentioned in the plaint. He alleged that the sale-deed dated 2.3.1996 which was executed by respondent No. 3 in favour of respondent No. 1 while the sale- deed dated 25.11.1996 which was executed in favour of respondent No. 2 by respondent No. 3 were in excess of the ownership of the vendor and without any title respectively (the sale dated 2.3.1996 was in excess of ownership of the vendor by seven marlas while whole of the sale-deed dated 25.11.1996 was without any title). The respondents, herein, filed an application in the Trial Court on 20.10.1997 alleging that the suit filed by the appellant, herein, was not competent in view of the provisions contained in Order VII, rule 11 CPC and some other provisions of the Code. The appellant-plaintiff filed objections to the said application. The Trial Court, after hearing the parties, upheld the objection raised by the respondents, herein, and rejected the plaint on 8.1.1998. However, on appeal to the District Judge, the findings of the Trial Court rejecting the plaint were set aside and it was directed that the Trial Court should proceed in with the trial after taking written statements from the respondents- defendants. The respondents, herein, filed an appeal to the High Court against the findings of the District Judge, Bagh, which was accepted and the judgment and decree of the District Judge were set aside and that of the Trial Court were restored. It is against the aforesaid judgment and decree of the High Court that the present appeal has been preferred.
3. Raja Muhammad Yunus Tahir, the learned counsel for the appellant, has argued that the judgment and decree of the High Court are not maintainable, inter alia, on the ground that the withdrawal of the suit by the appellant-plaintiff so far as the same pertains to the sale-deed dated 2.3.1996 is concerned, was not considered by the High Court; the High Court decided it as if the appellant-plaintiff still seeks the relief so far as the same pertains to the cancellation of the sale- deed dated 2.3.1996. The learned counsel has contended that the claim regarding the sale-deed dated 2.3.1996 which was executed in favour of respondent No. 1 and was withdrawn in the Court of District Judge and only the controversy regarding the cancellation of sale-deed dated 25.11.1996 which was executed in favour of respondent No. 2 is still alive between the parties. Thus, according to the learned counsel for the appellant, the previous suit instituted on 28.5.1997 for perpetual injunction does not debar the appellant to seek the cancellation of the sale-deed which was executed in favour of respondent No. 2, especially so when previously sale- deed dated 25.11.1996 was not challenged in any of the earlier suits. The learned counsel has contended that both the previous suits were dismissed on 15.10.1997, when the present suit had already been instituted and was pending in the Court. Thus, according to the learned counsel for the appellant, as the present suit was instituted when the previous suits were still pending, the present suit could not be dismissed under Order II, rule 2, and section 11, CPC or any other provision of the Civil Procedure Code. The learned counsel has further argued that out of the previous to suits, one pertaining to sale-deed dated 2.3.1996 regarding seven marlas was dismissed in default on 15.10.1997 while the second suit for perpetual injunction was dismissed on the same day on the basis of withdrawal after recording the statement of the appellant under coercion; the plaintiff-appellant was brought in the Court room for recording his statement through Police as is evident from the relevant order of the Trial Court. Thus, according to the learned counsel for the appellant, the previous suit which pertained to sale-deed dated 25.1 1.19 96 cannot be deemed to have been decided as a result of any withdrawal by the plaintiff; rather the same should also be treated to have been dismissed in default. The learned counsel for the appellant has cited the following authorities in support of his contention:- In a case reported as Ghulam Nabi and others v. Seth Muhammad Yaqub and others (PLD 1983 S.C.
334), it has been observed that as the subsequent suit had already been instituted when the first suit was withdrawn, the withdrawal would not operate as res judicata.
In a case reported as Nawab Khan v. Sh. Munir Hussain and others (1990 SCM R 978), it has been held that as earlier suit which was withdrawn by the plaintiff involved the question of tenancy while the subsequent suit pertained to the question of ownership and possession and thus, the subsequent suit being based on a different cause of action was competent. Consequently, the petition for leave to appeal was dismissed.
4. In reply Syed Nazir Hussain Shah Kazmi, the learned counsel for the respondents has controverted the arguments advanced on behalf of the learned counsel for the appellant. He has argued that the plaintiff-appellant did not challenge the sale- deed dated 25.11.1996 in the earlier suit and thus, he was debarred from filing the subsequent suit alleging that sale-deed dated 25.1 1.1996 which was executed in favour of Muhammad Saleem was null and void because vendor had no share in the joint land. He has submitted that it was incumbent upon the plaintiff to include whole of his claim about the suit land against the defendants-respondents. He has cited the following authorities in support of his contention:-- In a case reported as Allah Dad v. Feroze Khan (1990 CLC 1920), it has been observed that as the previous suit for declaration of the title and perpetual injunction was dismissed on the ground that the plaintiff was not in possession of the property, the second suit which was instituted for possession would not barred for the simple reason that the cause of action for filing the second suit was different as the same arose after the dismissal of his first suit.
In a case reported as Muhammad Latif v. Muhammad Iqbal (1996 CLC 1672), it has been held that as the plaintiff had omitted to include in the earlier suit the recovery of the possession and thus, withdrew the same, he could not bring subsequent suit for possession in view of provisions contained in Order XXIII rule 1(3) and Order II, Rule 2, CPC.
In a case reported as Zaighum Saleem Khan v. Muhammad Saleem Khan and another (PLD 1992 SC (AJ&K) 38), it has been held that as former suit was instituted by the plaintiff for the recovery of the possession and the same purported to be under section 9 of the Specific Relief Act but in fact it was not so and was based on title, the subsequent suit on the basis of title was not competent as being res judicata.
In a case reported as Abdul Hakim Khan and 2 others v. Saadullah Khan and 2 others (PLD 1970 SC 63), it has been held as under:-- "The expression "cause of action" in Order, II, rule 2, CPC means the cause of action for which a suit is brought. In order that the cause of action for the to suits may be the same, it is necessary not only that the facts which would entitle the plaintiff to the right claimed must be the same but also that the infringement of his right at the hands of the defendants complained against in the to suits, must have arisen in substance out of the same transaction. In considering the application of this bar, regard is to be had to the allegations in the to suits without reference to the defence that may be set up by the defendants."
In a case reported as National Bank of Pakistan v. Hashim Khan (1995 CLC 88), it has been held that where a cause of action is inter-connected all such causes of action should be joined together in the same suit. It was observed that where in the suit for recovery of principle amount claims to interest or compensation were not included, the subsequent suit cannot brought for claiming the same.
5. We have given due consideration to the matter. It may be stated at the outset that the Trial Court rejected the plaint of the plaintiff-appellant under Order II, rule 2, of the CPC and the said order was set aside by the District Judge on appeal. However, the High Court has dismissed the suit of the plaintiff-under Order II, rule 2, Order XXIII, rule 1(3) and section 11, CPC. The High Court also resorted to its inherent powers. It may be stated that the High Court should have confined itself only to the question as to whether the provisions of Order II, rule 2, CPC were attracted in the case because the Trial Court rejected the plaint in view of the said provision and did not dismiss the suit on the other grounds which the High Court has pressed into service while passing the impugned judgment. It may be stated here that scope of Order II, rule 2, is limited and plaint can be rejected if it is found that the plaintiff has no cause of action, or his suit is hit by any other mischief envisaged in the aforesaid provision. For convenience Order II, rule 2 is reproduced below:- "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 stilt within the jurisdiction of any Court.
(2) Relinquishment of part of claim. 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.
(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.
Explanation. For the purposes of this rule an obligation and collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action."
Thus, ordinarily the question of res-judicata etc., cannot be resorted to for rejecting the plaint, specially so because the question of res-judicata postulates that plaintiff had a cause of action but he cannot be granted relief due to bar of res-judicata or any other similar bar; such question can be conveniently resolved only after framing the issues and recording the evidence, if any, produced by the contending parties. It has been contended by the learned counsel for the appellant that he does not seek any relief so far the sale-deed dated 2.3.1996 is concerned; he abandoned his claim regarding the said sale-deed in writing when the matter was pending before the District Judge. Thus, in the instant case the only question which needs resolution is as to whether the sale- deed dated 25.11.1 996 can be challenged when the plaintiff failed to do so in his earlier suit. It may be stated here that perusal of the earlier suit is indicative of the fact that same was for perpetual injunction against the respondents, herein, and some others on the ground that they were interfering in the possession of the appellant, herein; there was no averment in the plaint filed in the earlier suit that said interference was being caused on the basis of any sale-deed. In fact it was clearly mentioned in the plaint that respondents, herein and others were interfering in the possession of the plaintiff as being co-sharers despite that fact that their joint land had been privately partitioned and they were in exclusive possession of the same according to the said partition. The present suit is for the cancellation of a sale-deed on the ground that the same was executed by the vendor without any title to the land sold as he had transferred whole of his share by the sale-deed etc., prior to the execution of sale-deed in question. It is well- settled principle of law that Order II, rule 2 can only be pressed into service if the subsequent suit is based on the same cause of action on which the earlier suit was based. The question arises as to whether in the instant- case the cause of action in the subsequent suit for the cancellation of the sale-deed is the same as was in the earlier suit. It may be observed that it is evident even from some of the authorities cited by the learned counsel for the respondent that it is necessary for the application of Order II, rule 2, that cause of action in both the suits must be the same. The cause of action means bundle of facts which the plaintiff has to prove for obtaining a relief. In the earlier suit for perpetual injunction which the plaintiff had to prove that he was in possession of a particular piece of land as a co-sharer on the basis of the private partition but respondents, herein, and others, were after his forcible dispossession whereas in the instant case the plaintiff has to prove that the sale-deed dated 25.11.1996 was executed by vendor without any title to the land sold. The fact as to whether the vendor had any title in the land sold not, could not be made subject-matter of earlier suit in view of nature of the same. Thus, it cannot be said by any stretch of imagination that the relief sought in the present suit was based on the same cause of action on which the plaintiff had instituted earlier suit. Therefore, the provisions contained in Order II, rule 2 are not attracted to the case in had. So far as the questions of application of res judicata and Order XXIII, CPC are concerned, the plaint was not rejected by the Trial Court on the said grounds and that should not have been resorted to by the High Court. Therefore, the other questions except the application of Order II, rule 2, CPC, if raised, may be resolved by the Trial Court according to law.
In the light of what has been stated above, we accept the the judgment of the High Court and remand the case to the Trial Court to proceed with the trial according to law.