1. ' Through listed-application under order XXXIX rules 1 and 2, C.P.C. Plaintiff seeks restraining order against the defendants.
2. ' While arguing the application it has been pointed out that the plaintiff has instituted an earlier Suit No,17 of 2001 before learned Civil and Family Judge Malir with respect to the same subject-matter with the following prayer:--
(i) That the defendants Nos.l to 6 may kindly be directed not to dispossess the plaintiff from the Trust property Jamia MasjidRehmania and Jamia Madaressah Furqania situated at Khulabad, near Abbot Laboratory, Landhi Qaidabad and also not to interfere into the affairs of said Trust.
(ii) Any other relief or reliefs which this Hon'ble Court may deem fit and proper.
(iii) Cost of the suit.
3. ' Thereafter, the plaintiff on failure to obtain a favourable order restraining the defendants by an order of injunction, preferred the present suit alongwith Civil Miscellaneous Application No,3309 of 2001. On 7-5-2001 notice of Civil Miscellaneous Application 3009 of 2001 was ordered to be served upon the defendants. Due to non-service of notice interim orders were passed on 10-5-2001. The matter then came up for hearing of the above application on 17-5-2001 when for the first time it was pointed out by the learned counsel appearing for the defendants that the plaintiffs have not approached this Court with clean hands and obtained the interim orders after showing wrong addresses of the defendants that were practically different from their actual address as contained in the plaint of the earlier suit. However, a short adjournment was allowed to enable the parties to file their counter-affidavits and argue their application, on merits. This matter has since been adjourned before various Benches.
4. ' Today while hearing of the application learned counsel of the plaintiff could not produce the title documents of the property/Trust and candidly admitted that the title of the land does not vest in the plaintiff or of the Trust as claimed. Further learned counsel could not explain as how this suit is maintainable in view of provisions of Order OIL rule 2, C.P.C.
5. ' In view of the above as the claim was omitted by the plaintiffs their earlier Suit No,17 of 2001 which cannot be made subject-matter in this subsequent suit which is based on the same cause of action as splitting of claims of the same cause of action is not permissible as a party cannot be vexed twice of the same cause of action. Reliance is placed on the cases of M.K. Abbas v. United Bank Ltd. (1983 CLC 482), Muhammad Khalil Khan and others v. Mahboob Ali Mian and others (PLD 1948 P.C. 131), Abdul Hakim v. Saddullah Khan (PLD 1970 SC 63). Accordingly the suit is hit by provision of Order II, rule 2 and the plaint is rejected under Order VII, rule 11, C.P.C. Suit is accordingly dismissed alongwith the listed-application.
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