2021 C L C 187
[Balochistan]
Before Muhammad Hashim Khan Kakar and Muhammad Ejaz Swati, JJ
Syed MUHAMMAD ILYAS ----Petitioner
Versus
Syed MUHAMMAD SHAFI and 7 others ----Respondents
R.F.A. No.69 of 2013, decided on 13th July, 2020.
(a) Civil Procedure Code (V of 1908) ---
----O.VII, R.11; O.II, R.2; Ss.11 & 12(1) ---Arbitration Act (X of 1940), S. 32--- Specific
Relief Act (I of 1877), S.42--- Suit for declaration and possession though partition---Earlier
suit was dismissed ---Constructive res judi cata, principle of ---Applicability ---Second suit on
same cause of action ---Plaint, rejection of ---Trial Court dismissed the suit under S.11 and
O.II, R.2 of C.P.C.---Validity ---Earlier suit for partition filed by the plaintiff against the
defendants had be en dismissed ---Arbitration proceedings initiated for making the award a
rule of Court with regard to decision of arbitrator pertaining to the partition of suit property
had also been dismissed---Nobody should be vexed twice for the same cause of action and
there should be an end of litigation--- Plaintiff was precluded to file present suit in
circumstances ---If plaintiff had not taken a particular ground of defence or attack in the
earlier suit then principle of constructive res judicata would be applicable ---Plaintiff could
not split the cause of action by filing subsequent suit with regard to same subject matter ---
Order II, R. 2 of C.P.C. barred a plaintiff, who had earlier claimed certain relief, from filing second suit with regard to other relief based on same cause of action ---Second suit could be
filed on different cause of action ---Constructive res judicata was applicable in the case as
earlier suit filed by the plaintiff on same cause of action for partition of suit property had been dismissed ---Appeal was dismissed, in circumstances.
2000 CLC 1107 and 1989 CLC 1718 ref.
Khushi Muhammad and 2 others v. The Province of the Punjab Through Secretary to
Government of the Punjab and 2 others 1999 SCMR 1633; Amanullah Malik v. Mian Ghafoor -ur-Rehman and ot hers 1997 SCMR 1796; PLD 2004 SC 178; PLD 1974 SC 80;
2006 SCMR 1262; PLD 2005 SC 430; State Bank of Pakistan through Governor and another v. Imtiaz Ali Khan and others 2012 SCMR 280; Greenhalgh v. Mallard 1947 (2) All ER 257; Abdul Hakim and 2 others v. S aadullah Khan and 2 others PLD 1970 SC 63; Trustees of the
Port of Karachi v. Organization of Karachi Port Trust Workers and others 2013 SCMR 238; and Ali Muhammad and another v. Muhammad Bashir and another 2012 SCMR 930 rel.
(b) Civil Procedure Code (V of 1908) ---
----O.II, R.2---Plea of bar under O.II, R.2(3), C.P.C., when attracted.
To attract the plea of bar under Order II, Rule 2(3), C.P.C., it must be made out.
i. That the second suit was in respect of same cause of action as that on which former
suit was based.
ii. That in respect of that cause of action the plaintiff was entitled to more than one relief.
iii. That plaintiff in former suit was entitled to more than one relief in respect of same cause of action, but without leave of the Court omitted to sue for the relief for which the second suit had been filed.
iv. That plaintiff was entitled to such relief at the time of former suit.
v. Suit be between the same parties and should arise out of same cause of action.
Mumtaz Hussain Baqri for Appellant.
Gul Hassan Tareeen for Respondents Nos.1 to 4.
Zahoor Ahmed Baloch, A.A.G. for Official Respondents.
Date of hearing: 26th June, 2020.
JUDGMENT
MUHAMMAD EJAZ SWATI, J. ---The appellant (plaintiff) initially filed a suit for
partition against the respondents (defendants) and claimed partition of the properties mentioned in the Para No.2 (i to viii) of the plaint. In former suit plaintiff al so claimed
partition of the properties purchased by the respondents (defendants). It was averred in the former suit that appellant and defendants Nos.1 to 3 are real brothers and legal heirs of late Syed Aslam Shah, who died in the year 1958, left behind t he properties mentioned in the
plaint.
2. The former suit was contested by the respondents on the ground that according to the
family settlement all the inheritance properties had already been partitioned amongst the parties. The former suit was dismissed by the learned Civil Judge, Pishin vide judgment/decree dated 30th November, 1998. On appeal filed by the appellant, the learned Additional District Judge, Pishin, vide judgment dated 13th May, 2000 dismissed the appeal as under: -
"Being aggrieved by the judgment and decree dated 30- 11-1998 the appellant /
plaintiff field the present appeal/case. On 13- 05-2000 the appellant field an
application under Article 163 of Qanun- e-Shahadat Order for taking special oath in
Holy Quran where -as the appellant stated that if the attorney of respondent/defendants
take special oath in Holy Quran under the following terms:
Then his appeal be disposed of in accordance with law of Administration special oath.
The notice of the application was given to the respondents/def endant and the attorney
of respondents/defendants took the special oath and had got recorded his statement in which he explained the partition of properly of his father among all brothers.
As the attorney of respondents/defendants has taken special oath a s per Article 163 of
Qanun- e-Shahadat Order, therefore, the appeal is dismissed as per law."
3. The appellant had also filed an application under Arbitration Act, against the
respondents for making award rule of the Court with regard to the partition of the properties and said application was dismissed in default by the Additional Sessions Judge -V, Quetta
order dated 27th November, 2011.
4. The appellant filed the instant suit (subsequent suit) for declaration, possession
through partition cancellation and transfer of mutation entries against the respondents on
27th June 2018, in respect of the properties left by their father namely Syed Aslam Shah, who died in the year 1958.
5. The respondents Nos.1 to 4 contested the suit by way of filing joint written sta tements
and besides contesting suit on merit also raised objection , that suit of the appellant is barred under Section 11 of Civil Procedure Code (C.P.C.) (both actual and constructive resjudicata)
and under Order II, Rule 2, C.P.C. as well.
6. The learned Civil Judge -I, Quetta (the trial Court) vide order dated 18th June, 2013
(the impugned order) dismissed the suit under Section 11 and Order II, Rule 2, C.P.C.
7. Learned counsel for the appellant contended that while passing the impugned order,
the learned trial Court has failed to consider the pleadings and documents of parties; that
neither provision of Section 11 nor Order II, Rule 2, C.P.C. attracted in the instant case; that
the subject matter of the instant suit was not in issue, either actual ly or constructively; that in
the former suit the properties of the instant suit left undecided; that question relating to
Section 11 and Order II, Rule 2, C.P.C. was mix question of law and facts, which under the
law cannot be decided summarily; that impu gned order is contrary to law and facts and is
liable to be set- aside.
8. Learned counsel for the respondents Nos.1 to 3 contended that provision of Section
11 both actual and constructive resjudicata and Order II, Rule 2, C.P.C. were attracted in the case; that in respect of all the properties left by the predecessor in interest of the parties was decided in previous suit for partition on special oath under Section 163 of the Qanun- e-
Shahadat, 1984, thus there was no matter remained between the parties in respect of partition
of the properties; that in the former suit the appellant had opportunity to assert all ground in
support of his claim, therefore, the claim omitted in the former suit preclude from raising
these ground in the subsequent suit; that the dismissal of the Arbitration Proceedings
initiated by the appellant in respect of same property for partition also debar the instant suit
under Section 32 of the Arbitration Act. Learned counsel placed reliance on case reported in 1999 SCMR 1633, 1997 SCMR 1796, 2000 CLC 1107 and 1989 CLC 1718.
9. We have heard the learned counsel for the parties and perused the record of the case.
Admittedly the appellant had earlier filed a suit (former suit) for partition against the respondents in respect of the propert ies of the predecessor in interest of the parties namely
Syed Aslam Shah (late), who died in the year 1958. The former suit was finally decided by the Additional District Judge, Pishin in appeal filed by the appellant vide judgment 13th May, 2000, holding that all the properties left by (late) Syed Aslam Shah had been
partitioned amongst his sons. The above judgment of the former suit had not been challenged by either party and thus attained finality. Thereafter; appellant had also initiated proceedings under Arbitration Act, for making an award rule of the Court in respect of the decision of an arbitrator pertaining to the partition of their properties amongst sons of late Syed Alam. That application was also dismissed in default by the learned Additional D istrict Judge -V, Quetta
vide order dated 27th November, 2001 and that order is still in field, which also preclude the appellant to file suit due to bar of Section 32 of the Arbitration Act and Section 12(1) of Civil Procedure Code (C.P.C.).
The rule of r esjudicata is based on the consideration that nobody is to be vexed twice
for the same cause and that it is in the interest of an individual and the State that there should be an end to litigation. Reference in this respect is to be made to cases reported as PLD 2004
SC 178, PLD 1974 SC 80, 2006 SCMR 1262 and PLD 2005 SC 430.
10. To define clarity the principle contained in Section 11, C.P.C., six explanations have
been provided. Explanation I, states that expressions "former suit" refer to a suit which had
been decided prior to the suit in question. Explanation II. states that competence of a Court shall be determined irrespective of whether any provision as to a right of appeal from the decision of such Court. Explanation III, states that the matter direct ly and substantively in
issue in the former suit, must have been alleged by one party either denied or admitted expressly or impliedly by the other party. Explanation IV, provides that any matter which might or ought to have been made a ground of defence or attack in such former suit, shall be deemed to have been a matter directly and substantially in issue in such suit.
Principle of constructive res judicata emerges from Explanation IV of Section 11,
C.P.C., which read with explanation III, both of which explain the concept of "matter directly and substantially in issue".
As per explanation IV, of Section 11, C.P.C. even though a particular ground of
defense or attack was not actually taken in the earlier suit, if it was capable of being taken in the earl ier suit, it become a bar in view of titled principle of constructive resjudicata.
Constructive resjudicata deal with grounds of attack and defence which ought to have been raised, but not raised, such omission attracted the principle of constructive res j udicata.
Reference in this respect is to be made to a case titled Khushi Muhammad and 2 others v. The Province of the Punjab Through Secretary to Government of the Punjab and 2 others
1999 SCMR 1633 wherein the Hon"ble Supreme Court of Pakistan observed as under: -
"It has been urged that many of the questions, which surfaced, pursuant to the
memorandum, dated 10 -8-1982 and which thereupon came up again before the High
Court, were not raised during the previous litigation and, therefore, could freely be re -
agitated. The premise is erroneous both on the factual and legal planes. Thus, it does not seem that any of the crucial questions were not raised in the earlier round of litigation. Besides, even if there were some such questions, each one of the same ough t to have been raised in the previous adjudication and in the event any of them
was not raised, such, as well, attracted the principle of constructive re judicata".
In case of Amanullah Malik v. Mian Ghafoor -ur-Rehman and others (1997 SCMR
1796) the Hon'b le Supreme Court observed as under:
"The learned judge in the High Court has held that the suit, out of which, this petition has arisen was hit by the principle of constructive res judicata. This doctrine is embodied in Explanation IV to section 11, C.P.C . and is an essential constituent of
doctrine of res judicata. It is because of principle of res judicata that the doctrine of res judicata is rendered filly effective. The aim of the doctrine is to compel both the
parties to the suit to raise before the C ourt in support of their contentions all the
ground of attack and defence available to them. By force of this doctrine, the parties
have to bring their whole case to the Court and cannot reserve for the purpose of a second suit grounds available to them in support of their case. The rationale behind
the constructive res judicata is that if parties have had an opportunity of asserting a ground in support of their claim or defence in a former suit and have not done so, they shall be deemed to have raised such grounds in the former suit and it shall be further
deemed that these grounds had been heard and decided as if these matter had been actually in issue. As such, such parties be precluded from raising these grounds in a subsequent suit. Such matters will by virtue of this legal fiction be construed to res
judicata"
In case titled State Bank of Pakistan through Governor and another v. Iintiaz Ali
Khan and others 2012 SCMR 280. The Hon'ble Supreme Court observed as under: -
"It is well settled law that party once approaching the Court for seeking relief shall
seek all the relief to which it thinks is entitled to and if such relief even if available but not asked for, cannot be claimed by filing a subsequent legal proceedings as it would fall within the mischie f of constructive res judicata".
The principle under lying Explanation IV to Section 11, C.P.C. becomes clear from
Greenhalgh v. Mallard [1947 (2) All ER 257).
"It would be accurate to say that res judicata for this purpose is not confined to the issues which the Court is actually asked to decide, but that it covers issues or facts
which are so clearly part of the subject matter of the litigation of so clearly could have been raised that it would be an abuse of the process of the Court to allow a new proceeding to be started in respect of them"
From the above it is clear that in view of Explanation -IV of Section 11, C.P.C. an
adjudication is conclusive and final, not only as to the actual matter determined, but as to
every other matter which the parties might and ought to have litigated and have had decided, as incidental to or essentially connected with subject matter of the litigation and every matter coming into the legitimate purview of the original action, both in respect of claim and
defence.
Now adverting to Order II, Rule 2, C.P.C. of C.P.C. reads as under: --
"Suit to include the whole claim.--(1) Every suit shall include whole of the claim
whcih the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may reli nquish any portion of his claim in order to bring the suit within the
jurisdiction of any Court.
Relinquishment of part of claim.--(2)Where a plaintiff omits to sue in respect of, or intentionally relinquish any portion of his claim, he shall not afterwar ds sue in respect
of the portion so omitted or relinquished.
Omission to sue for one of several reliefs.---(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."
11. The object of Order II, Rule 2 of C.P.C. is two fold, first to ensure that no defendant
is sued and vexed twice in regard to the same cau se of action. Second is to prevent a plaintiff
from splitting any claim and remedies bases on the same cause of action. The effect of Order II, Rule 2 of the C.P.C. is to bar a plaintiff, who had earlier claimed certain relief/remedies
action. for filing s econd suit in regard to other relief bases on same cause of action. It does
not, however bar a second suit based on different cause of action.
To attract the plea of bar under Order II, Rule 2(3), C.P.C., it must be made out.
i. That the second suit was i n respect of same cause of action as that on which former
suit was based.
ii. That in respect of that cause of action the plaintiff was entitled to more than one relief.
iii. That plaintiff in former suit was entitled to more than one relief in respect of same cause of action, but without leave of the Court omitted to sue for the relief for which the second suit had been filed.
iv. That plaintiff was entitled to such relief at the time of former suit.
v. Suit be between the same parties and should arise out of same cause of action.
In case titled Abdul Hakim and 2 others v. Saadullah Khan and 2 others PLD 1970 SC
63, the Hon'ble Supreme Court observed as under: -
"The expression "cause of action" in Order II, Rule 2, C.P.C. means the cause of
action for whi ch a suit is brought. In order that the cause of action for the two 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 ha nds of the defendants complained against in the two 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 two suits without reference to the
defence that may be set up by the defendants. As laid down by their Lordship of the
Privy Council in Muhammad Khalil Khan and others v. Mahbub Ali Mian and others (1) "the bar under Order II, Rule 2 refers entirely to the grounds set out in the plaint as the cause of action or, in other words to the media upon which the plaintiff asks the Court to arrive at a conclusion in his favour". A rough test, although not a conclusive one is to see whether the same evidence will sustain both suits which would be the case if both the suits are founded on continue and inseparable incidents in the same
transaction. They question, however, is to be examined in substance and not merely on form as the cause of action in the two suits may be found to be the same, in spite of the facts al leged not being exactly identical in the two cases. It is not open to the
plaintiff to split up the Parts really constituting the same cause of action and filed different suits in respect of them. In other words, a plaintiff must ask for all his reliefs which flow from the grievances cause to him by the infringement of his rights by the
defendant in the course of same transaction, but he cannot and is under no obligation to add to his grievances which did not occur in that transaction."
In case titled Trus tees of the Port of Karachi v. Organization of Karachi Port Trust
Workers and others 2013 SCMR 238, the Hon'ble Supreme Court observed as under: -
"According to Order II, Rule 2, C.P.C. the splitting of claim and/or relief is prohibited
and that is a mandatory provision of law with consequence that if a claim/relief which a person is entitled on the basis of cause of action, but out of relinquished the same, such person/party shall be precluded to sue for the claim/relief so omitted. I do not find that the claim/relief now structured by the respondents is an a distinct cause of
action. In my view, therefore, the bar of Order II, Rule 2 is also attracted to the case in hand".
In case titled Ali Muhammad and another v. Muhammad Bashir and another 2012
SCMR 930, the Hon'ble Supreme Court of Pakistan observed as under:
"The law does not permit a second suit if a right to the plaintiff is available at the time of filling of the suit. A second suit in such- like situation is otherwise barred under
Rule II, Or der II, C.P.C."
12. In the instant case, the former suit filed by the appellant was in respect of partition of
the properties left by the predecessor in interest of the parties namely Syed Aslam Shah which was finally decided, vide judgment 13th May, 2000, on the basis of special oath taken
by the respondent that all the properties left by late Syed Aslam Shah had been partitioned amongst his sons including appellant. The subsequent suit for possession through partition of some of the above properties, squa rely fall within the preview of actual and constructive res
judicata as well as based on the same cause of action on which former suit was filed. The
properties listed in the former suit and the subsequent suit are the same and the fate
pertaining to parti tion had finally been decided by the competent Court of Law, thus, the
findings of the trial Court that appellant failed to put forth all the grounds of attack in support of his claim and omitted to claim all relief flowing from the same cause of action in
the former suit are based on proper appreciation of law and facts, thus, the impugned order
passed by the learned trial Court warrants no interference by this Court.
In view of the above, R.F.A. No.69 of 2013 is dismissed. Parties are left to bear their
own costs.
ZC/110/Bal. Appeal dismissed.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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