2018 C L C 459
[Balochistan]
Before Muhammad Ejaz Swati and Abdullah Baloch, JJ
Haji ABDUL WAHID----Appellant
Versus
ABDULLAH and 5 others ----Respondents
R.F.A.No.96 of 2011 and Civil Revision No.108 of 2009, decided on 20th November, 2017.
(a) Civil Procedure Code (V of 1908) ---
----O. II, R. 2---Specific Relief Act (I of 1877), S.54---Suit (earlier) for recovery of mesne profit
and mandatory injuntion after dismissal of eviction petition ---Subsequent suit for ejectment from
the premises ---Relationsh ip between the parties for ejectment proceedings being of partners in a
business ---Defendant (partner) was to pay rent of the premises to the plaintiff ---Bar to
subsequent suit ---Different cause of action ---Effect ---Suit was dismissed being barred under
O.II, R.2, C.P.C.---Validity ---Defendant had neither denied the half share of plaintiff in the
business nor in the rent of the demised premises ---Occupation of defendant over the premises
was permissive subject to payment of half share of business run by the defendant and payment of
rent of the premises ---Defendant had denied rent to the plaintiff (owner of the premises) for
several years till filing of the present suit---Possession of defendant in circumstances could not be considered as wrongful in the property in question---Trial Court without referring the title of the suit and considering the claim of prior suit had passed the impugned order ---Bar provided
under O.II, R.2, C.P.C. was only with regard to subsequent suit and not with regard to suit filed simultaneously ---Order II, R.2, C.P.C. required the joinder of all claims and relief arising out of
same cause of action in a suit ---Order II, R.2, C.P.C. did not bar a subsequent suit on different
cause of action that had not accrued earlier ---Earlier suit was for mandatory injunction with
mesne profit and present suit was for ejectment ---Present suit was not barred under O.II, R.2,
C.P.C.--- Impugned judgments and decrees passed by the Courts below could not be sustained in
circumstances which were set aside---Case was remanded to the Trial Court to proceed with the matter on merits ---Revision was allowed in circumstances.
1993 CLC 2478; Qalandar Din and 4 others v. Rasul Khan 1991 SCMR 525; Muhammad
Tahir v. Abdul Latif and 5 others 1990 SCMR 751 and Ghula m Rasool v. Muhammad Waris
Bismil 1995 SCMR 500 rel.
(b) Civil Procedure Code (V of 1908) ---
----O. II, R. 2---Relinquishment of claim ---Effect ---If plaintiff omitted to sue for all the claim
and relief to which he was entitled with regard to cause of acti on then he would be precluded
from second suit for suing in respect of cause so omitted---Object of O.II, R.2, C.P.C. was to
prevent a party being vexed twice for the same cause of action.
(c) Civil Procedure Code (V of 1908) ---
----S. 2(12) ---'Mesne profi t'---Meaning and scope.
Wrongful possession is the very essence of claim for mesne profit. For seeking mesne
profit person must be owner of property and having right to its possession. Mesne profit is in the
nature of damages for being deprived of the be nefit, which the person is deriving from the
property. Section 2(12), C .P.C. provides that "Mesne Profit" of property means those profits, which the person in wrongful possession of such property actually received or might with the ordinary diligence have received therefrom. According to section 2(12), C.P.C. person became
entitled to mesne profit only when he has right to obtain a possession from another person whose
possession is unauthorized keeps him deprives of the possession. The first and foremost
condition for awarding mesne profit is unlawful possession of the occupant of the property.
Muhammad Akram Shah for Appellant/Petitioner.
Tahir Ali Baloch for Respondents.
Date of hearing: 6th November, 2017.
JUDGMENT
MUHAMMAD EJAZ SWATI, J. --- The app ellant (plaintiff) filed a suit for mandatory
injunction, recovery of mesne profit and permanent injunction against the respondents with the
averments that the predecessor of the appellant (plaintiff) namely Haji Khan owned a property hearing Khasra Nos.110, 111, 112 and 113 situated at Qandhari Road, Chaman (property in dispute) and after his death, the property in dispute has devolved upon the appellant (plaintiff). The property in dispute godown/garage on the front, it is consisting of shops, upon which there are flats. The shops, which are consisting of godown/garage were rented out to the predecessor of defendants Nos.1 to 5 at a monthly rent of Rs.500/ - payable on 5th of every succeeding
month. For the purpose of establishing flour Mill, all the materi als so required were supplied and
provided by the predecessor in interest in respect of establishing flour Mill. According to the plaintiff, it was settled between the parties that income of the flour Mill would be distributed among the predecessor of the plaintiff and the predecessor of the defendants equally and that joint venture was entered in the year 1980 and till 1990, the predecessor in interest of defendants had been paying a little amount in respect of income out of Mill, however, after 1990, the predecessor of defendants Nos.1 to 5 declined the agreed income of business of flour mill; that without consent of the plaintiff, the respondents sublet the business of flour mill to his brother i.e. defendant No.6. The appellant further averred that the defendants also installed a generator in the flour Mill, which creates a lot of nuisance for the inhabitants of the area. The defendants also raised some construction in the property in dispute without consent of the plaintiff. It was averred that in the year the income of flour Mill was Rs.2,000,000/ - per annum and half share of
the plaintiff was Rs.1,000,000/ - and thus share of the appellant till filing of suit comes Rs.15
Million. Cost of impairing property comes to Rs.10 Million.
2. In written statement filed by the respondents Nos.1 to 6 contested the suit with the
averments that in the property belonging to the father of the plaintiff Haji Shah Sarwar raised
construction of six shops, four rooms two godwon and between the shops, one flour mill and posse ssion of shops along with four rooms was handed over to Haji Khan (father of the plaintiff)
and Haji Shah Sarwar with his permission started the business of flour Mills, so the Mills and
godown are in the use and occupation of the defendants family source etc. With regard to the
business of flour mill and claim of rent of Rs.500/ - per month has not been denied.
3. The execution of the agreement between the predecessor of the parties had also not been
denied by the respondents.
4. Out of pleadings of the par ties, following issues were framed:
1. Whether the suit is not maintainable in presence of the Eviction applications filed
by the plaintiff? O.P.D.
2. Whether the suit is barred by Limitation? O.P.D.
3. Whether the suit is hit by the provisions of section 10, C.P.C.? O.P.D.
4. Whether the property in dispute was rented out to the predecessor of the defendants Nos.01 to 05 at the monthly rent Rs.500/ - by the plaintiff and his
predecessor? O.P.P.
5. Whether the predecessor of plaintiff and the predecessor of defendants Nos. 01 to
05 entered into a (contract) that an establishment of flour Chakki the income will be distributed equally? O.P.P.
6. Whether the predecessor of defendants Nos.01 to 05 used to pay a libel amount up
to 1990 out of the income of flour Chakki? O.P.P.
7. Whether the property in dispute was constructed by the predecessor of the defendants Nos.01 to 05 with the permission of the predecessor of plaintiff? O.P.D.
8. Whether it was settled be tween the predecessor of plaintiff and the predecessor of
defendants Nos.01 to 05 that their income of the flour mill will be shared by the parties on profit and loss basis, besides the predecessor of defendants Nos.01 to 05 has to pay Rs.500/ - per month t o Haji Khan? O.P.D.
9. Whether the defendant No.06 is working jointly with remaining defendants, which is in the knowledge of the plaintiffs? O.P.D.
5. The appellant produced two witnesses and recorded his statement through attorney
Muhammad Siddique. The respondents also produced two witnesses and recorded their statements through attorney Haji Daro Khan.
6. The learned Senior Civil Judge, Chaman (hereinafter the "trial Court") vide
judgment/decree dated 30th November, 2011 (hereinafter the "impugned judgm ent/decree")
dismissed the suit.
7. The facts of Civil Revision Petition No.108 of 2009 are that the petitioners filed a suit for
ejectment of the premises mentioned in the suit on the ground of non- payment of rent, utility
charges, subletting and impairing the value of the property in dispute.
8. The respondents/defendants contested the suit by way of filing written statement.
9. Out of pleadings of the parties, following issues were framed:
1. Whether property in question had been rented out to Mullah Sha h Sarwar
predecessor in interest of defendants Nos.1 to 6 and thereafter, the defendants
have been violated the terms of tenancy and had sublet the same to defendant No.7? OPP.
2. Whether construction had been built on property in question by predecessor i n
interest of defendant on partnership basis with plaintiff or not? OPD
3. Whether the suit of the plaintiff is not maintainable under preliminary legal objections "B" and "D" of written statement? OPD.
4. Relief.
10. The Civil Judge, Chaman (hereinafter t he "trial Court") on the basis of legal issue No.3
dismissed the suit being barred under Order II, Rule 2, C.P.C. vide order dated 31st October,
2008 (hereinafter the "impugned order"). On appeal, the learned District Judge, Pishin (hereinafter the "appell ate Court") vide order dated 21st March, 2009 (hereinafter the "impugned
order") also dismissed the appeal.
11. The petitioner through Civil Revision Petition No. 108 of 2009 challenged the above
impugned orders.
Since the facts of R.F.A No. 96 of 2011 and Civil Revision Petition No. 108 of 2009 are
between the same parties related to same premises, therefore, are being disposed of through this
common judgment.
12. Learned counsel for the appellant contended that the business of flour chakki on share
basis on rent of Rs.100/ - p.m. payable on 5th of every succeeding month was specifically
admitted by the respondents; that the possession of the respondents in the premises in question was permissive both subject to condition; that after 1990, not a single penn y towards half share
of business of flour chakki nor payment of Rs.100/ - was paid by the respondents, therefore, their
possession became wrongful without payment of any amount, as such, the appellant was entitled for the mesne profit; that the trial Court has neither adhered towards the half share of the appellant from the business nor considered the case of the appellant with regard to mesne profit; that the findings rendered by the trial Court reflect misreading and non- reading of evidence.
13. In respect of Civil Revision Petition No. 108 of 2009, learned counsel for the petitioner
contended that prior to suit for ejectment besides suit arising out of RFA No.96 of 2011, an
eviction application was also filed, which was dismissed for want of jurisdi ction and after that
the suit for ejectment was filed; that Order II Rule 2, C.P.C. was not applicable in such circumstances; that the matter related to issue No.3 was mix question of facts and law, but the
trial Court decided the same without affording op portunity of producing evidence; that Order II,
Rule 2, C.P.C. was not applicable in respect of prior suit as in the suit the petitioner sought
mandatory injunction with regard to mesne profit.
14. The learned counsel for the respondents in respect of suit arising out of RFA No.96 of
2001, contended that the appellant sought relief of mesne profit in respect of property and business in lawful possession of the respondents; that the mesne profit is applicable in respect of property occupied wrongfully by the respondents; that the findings rendered by the trial Court
reflect that each and every issue has properly been decided, therefore, the impugned judgment is liable to be sustained.
The learned counsel for the respondents in respect of Civil Revision Petit ion No. 108 of
2009 contended that in the suit prior to ejectment suit, the petitioner omitted to seek ejectment, therefore, under Order II, Rule 2, C.P.C. his subsequent suit was barred under the law and the trial Court as well as the appellate Court have rightly dismissed the same being barred under
Order II, Rule 2, C.P.C.
15. We have heard the learned counsel for the parties and perused the record. Whereas the
case arising out of R.F.A No.96 of 2011 is concerned, the appellant sought two relief that the
respondents had failed to pay rent of Rs.100/ - p.m. and half share from the business of flour
chakki run by the respondents in the shape of mesne profit. The respondents neither denied the
half share of the appellant in the business of flour chakki nor re nt of Rs.100/ - of the premises
p.m. The relevant para. No.1 of the written statement is reproduced herein below:
"That unfortunately a dispute arose in the year 1982, whereby it was settled that income of the flour mill will be shared by the parties on pro fit and loss basis besides the
predecessor of the defendants has to pay Rs.500/ - per month to said Haji Khan, hence
assertions to the contrary are not admitted and denied vehemently."
It appears that the occupation of the respondents was over the premises in question was
permissive subject to payment of half share of running business of flour chakki run by the respondents and rent of Rs.100/ - p.m. which was denied to the appellant for several years till
filing of the suit, therefore, the appellant filed su it for mesne profit. Mesne profit is damages or
compensation recoverable from a person, who has been in wrongful possession of immovable property. It is settled principle of law that wrongful possession is the very essence of claim for mesne profit. For se eking mesne profit person must be owner of property and having right to its
possession. Mesne profit is in the nature of damages for being deprived of the benefit, which the person is deriving from the property. Section 2(12), C .P.C. provides that "Mesne Profit" of property means those profits, which the person in wrongful possession of such property actually received or might with the ordinary diligence have received therefrom. According to section 2(12), C.P.C. person became entitled to mesne profit only when he has right to obtain a
possession from another person whose possession is unauthorized keeps him deprived of the
possession. The first and foremost condition for awarding mesne profit is unlawful possession of
the occupant of the property. In the i nstant case, the appellant in paragraph No.1 averred as
under:
" and behind the shops which is consisting of godown/ garage was rented out to Defendant No.1 at the monthly rental of Rs.500/ - for the purpose of establishment of a
flour chakki and regarding establishment of flour chakki, all the material so required was supplied and provided by the predecessor of plaintiff as well as plaintiff, even for the construction of the flour chakki, veranda and grinding station as well as place, all the expenses were borne by the predecessor of plaintiff, and plaintiff whereby, the rent of garage/godown was fixed as Rs.500/ - which was payable by the Defendant No.1 on the
5th of every succeeding month while regarding establishment of flour chakki and its income, it was settled between the parties that income of the same would be distributed among the predecessor of plaintiff and defendant equally."
16. The respondents in paragraph No.2 of the written statement admitted that it was settled
between the parties that income of the flour mill will be shared by the parties on profit and loss basis, besides, the predecessor of the defendants has to pay Rs.500/ -per month to the father of the
appellant Haji Khan. It appears that relationship between the parties was of partners in the
business of flour mills and rent of Rs.500/ - p.m. was to be paid by the respondents to the
appellant, therefore, in such kind of relationship, the possession of the respondents cannot be
considered as wrongful in the property in question. The trial Court after proper appreciation of evidence has declined the relief to the appellant with regard to mesne profit. The respondents Nos.1 to 5 in the written statement contended that property in dispute was constructed by the predecessor of the defendants Nos.1 to 5 with the permission of the predecessor of the appellant
(plaintiff). In this respect issue No.7 was framed. The findings of the trial Court in respect of issue No.7 are that, "This issue is not proved by the defendants to support their plea". The respondents (defendants) had neither filed appeal against the aforesaid plaint decided against
them, nor filed cross -objection within the meaning of Rule 22 of Order XLI, C.P.C., therefore, to
the extent of aforesaid plaint, matter has taken finality. Since t he appellant had filed suit for
injunction and his claim was based on mesne profit, which has not been attracted in the case, therefore, findings of the trial Court warrant no interference.
l7. Whereas the case of petitioner arising out of Civil Revision P etition No. 108 of 2009 is
concerned, the petitioner prior to filing of suit for ejectment had filed eviction application against the respondents with regard to property in question. The eviction application was dismissed by the Civil Judge/Rent Controller , Chaman for want of jurisdiction. This Court in F.A.O No.18 of
2007 filed by the petitioner vide judgment dated 30th March 2007 upheld the judgment of the trial Court and dismissed the appeal. It is relevant to mention here that, since for mandatory injunction arising out of RFA No.96 of 2011 was pending, when the petitioner filed the instant suit for ejectment arising out of Civil Revision Petition No.108 of 2009, and the instant suit was filed by the petitioner after dismissal of F.A.O. No.18 of 2007. Th e trial Court dismissed the suit
in view of issue No.3 and passed following order:
"In view of above I am of the considered view that while deciding legal issue No.3, the suit of plaintiff falls under Order II, Rule 2 of C.P.C. due to non claiming as a whole when a plaintiff omits to sue in respect of or intentionally relinquishing any portion of his
claim be sued not after wards sue in respect of the portion so admitted or relinquished,
plaintiff through an other separate suit under trial, before this cour t about same subject
matter already suing/taking against the same defendant. Therefore, the suit in hand is dismissed with no order as to cost. Decree sheet be drawn."
18. The trial Court merely dismissed the suit of the petitioner on the ground that another suit
arising out of RFA No.96 of 2011 against the respondents was pending.
19. Order II Rule 2, C.P.C. states that if the plaintiff omits to sue for all the claim and relief
to which he is entitled in respect of cause of action, he will be precluded in a second suit from suing in respect of the portion so omitted. The object of Rule 2, C.P.C. is to prevent a party being vexed twice for the same cause of action. In the instant case, the trial Court without referring the title of the suit and considering t he claim of prior suit had passed the impugned order. The bare
perusal of Order II, Rule 2, C.P.C. reveals that the bar is only respecting a subsequent suit and not with respect to suit filed simultaneously as held in the judgment reported in 1993 CLC 2478. Further Order II, Rule 2, C.P.C. only requires the joinder of all claims and relief arising out of same cause of action in a suit. This rule does not bar a subsequent suit on different cause of action that had not accrued earlier. Reference is to be made to the case titled Qalandar Din and 4
others v. Rasul Khan 1991 SCMR 525, wherein the Hon'ble Supreme Court of Pakistan observed as under:
"In the third suit the sale itself was accepted as lawful and complete and then it was brought under challenge through a suit for pre -emption. Similarly there are other factors
constituting in the causes of action in the two suits which are totally different. Accordingly, the bar urged by the learned counsel as contained in Order II, Rule 2,
C.P.C. was not attracted."
In the case titled Muhammad Tahir v. Abdul Latif and 5 others, 1990 SCMR 751, the
Hon'ble Supreme Court of Pakistan observed as under:
"The institution of the third suit while the first was pending, on fresh grounds that became available during the pendenc y of that suit and continuance of the second suit
even after the dismissal of the first suit under Order IX, Rule 8, C.P.C. could not on any ground be objected.
The causes of action were different, the occasions when the causes of action arose were differe nt and the High Court has also recognized this difference by saying that the
plaintiff ought to have amended the plaint and incorporated the subsequent causes of action and the relief in the first suit. That was at best an option open to the plaintiff. He could not, however, be penalized for not availing of it and adopting the other course of restricting in the third suit the controversy to the causes of action which had arisen after the institution of the first suit."
20. It is clear on record that when the instant suit was filed and the impugned order was
passed by the trial Court, the earlier suit was pending before the trial Court, but without considering the above aspect of the matter has passed the impugned order. The record further reveals that earlie r suit filed by the petitioner was for mandatory injunction with regard to mesne
profit. Subsequently, the suit (instant suit) was for ejectment, therefore, the instant suit was not
barred under Order II, Rule 2, C.P.C. Reference in this respect is to be m ade to the case titled
Ghulam Rasool v. Muhammad Waris Bismil, 1995 SCMR 500, wherein the Hon'ble Supreme Court of Pakistan observed as under:
"Adverting to the above first submission of Mr. Ali Akbar that the suit was barred by Order II, Rule 2, C.P.C. inasmuch as in an earlier suit, namely Suit No. 1595 of 1982, the respondent did not claim any of the reliefs, which was subject -matter of the present suit,
it may be observed that a perusal of the plaint of Suit No.1595/1982 (which was filed on 18-4-1982), indicates that it was a suit for permanent injunction on the basis of the
averment that the respondent was apprehending that he might be dispossessed from shop No.3 forcibly, as he was dispossessed from shop No.4 on 15- 4-1982 at 8 -30 p.m. It is,
therefore, evident that the above earlier suit does not relate to the shop and, hence, the
second suit relating to the shop was not barred by Order II, Rule 2, C.P.C. or by section 11 of the C.P.C."
21. In the instant case, the trial Court without considering the above legal and factual aspect
of the matter decided issue No.3 in wrong premises, therefore, the impugned order/decree arising out of Civil Revision Petition No. 108 of 2009 cannot be sustained and is hereby set aside.
In view of the above, Regular First A ppeal No.96 of 2011 is dismissed.
The Civil Revision Petition No.108 of 2009 is allowed, the judgment/decree dated 31st
October, 2008 passed by Civil Judge, Chaman and Judgment dated 21st March, 2009 passed by District Judge, Pishin are set aside and the case is remanded to the trial Court to proceed with the
matter on merits and after providing opportunity to the parties of adducing evidence decide the same in accordance with law possibly within a period of six months.
ZC/177/Bal. Case remanded.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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