P L D 2021 Balochistan 67
Before Abdul Hameed Baloch, J
ZIAUDDIN---Petitioner
Versus
KHAN MUHAMMAD and 7 others ---Respondents
Civil Revision No. 118 of 2017, decided on 17th December, 2020.
(a) Civil Procedure Code (V of 1908) ---
----O. II, R. 2--- Specific Relief Act (I of 1877), Ss. 12 & 54--- Suit for possession, mense
profit and permanent injunction--- Bar on further suit ---Splitting of claim ---Scope ---
Petitioner/plaintiff filed a suit in respect of legacy of his father which was decreed /acted
upon, where after he filed civil suit again on the same subject -suit/cause of action, which was
dismissed ---Held, that under O. II, R.2 of the Civil Procedure Code, 1908, the splitting of
claim was not permissible and all the claims based o n same cause of action against the same
party should be included in one suit ---O. II, R. 2 of the C.P.C, 1908, was devised to prevent a
party from splitting up its claim, and if the plaintiff omitted or relinquished any part of his
right/entitlement, he wa s precluded from agitating the relinquished part of claim in
subsequent suit ---Suit of the petitioner was hit by the O. II, R.2, C.P.C.---No illegality or
infirmity was found in the impugned findings of both the Courts below ---Revision was
dismissed, in ci rcumstances.
Safdar Ali v. Muhammad Nawaz 2006 YLR 1137 and Syed Basharat Hussain Shah
Gillani and 3 others v. The Azad Government of the State of Jammu and Kashmir 2018 YLR 31 ref.
(b) Civil Procedure Code (V of 1908) ---
----O. II, R. 2--- Specific Relief Act (I of 1877), Ss. 12 & 54--- Suit for possession, mense
profit and permanent injunction--- Bar on further suit ---Object ---Object of R.2 of O.II, C.P.C,
was to prevent further litigation between the same parties over the same cause of action ---
Where the plaintiff relinquished a claim which was available to him during the previous suit, the same could not be suited in part left subsequently.
Abdul Hadi Tareen for Petitioner.
Ahmed Ali Baloch, A.A.G. for Official Respondents.
Date of hearing: 11th Decem ber, 2020.
JUDGMENT
ABDUL HAMEED BALOCH, J. ---This Revision Petition is directed against the
order dated 09.10.2015 and 25.02.2017, passed by the learned Senior Civil Judge Pishin
("trial court") and the learned Additional District Judge, Pishin ("the appellate court") respectively, whereby the Suit for Possession, Mesne Profit and Permanent Injunction, filed by the petitioner was dismissed, against which the appeal filed thereon was dismissed by the
appellate court.
2. Brief facts leading to file the instant petition is that the petitioner filed a Suit for
Possession, Mesne Profit and Permanent Injunction before the trial court with the following
prayers:
"It is, therefore, accordingly respectfully prayed that keeping into consideration the above facts and circumstances, a decree may kindly be passed in favour of plaintiff
against the defendants in the following terms.
(a) To direct the defendants Nos.1 to 2 to hand over the vacant possession of property Khasra Nos. 186, 188, 190 measuring 5 rod 2 8 pole situated at Mahal and Mauza
Mian Khanzai, Tapa Manzaki, Tehsil and District Pishin to the plaintiff.
(b) To direct the defendants Nos.3 to 9 to hand over the vacant possession of property bearing Khasra Nos.347, 378 measuring 1 rod 28 pole situated at Mahal and Mauza
Mian Khanzai, Tapa Manzaki, Tehsil and District Pishin to the plaintiff.
(c) To direct the defendants Nos. 1, 2 and 10 to 16 to hand over the vacant possession of one share i.e. 142 rode 16 pole of property bearing Khewat Khatooni Nos. 36/36
and 59/59 out of total property i.e. 48 shares i.e. 6836 rod 8 pole to plaintiff, disruption whereof has been given in Para -5 of plaint.
(d) To declare that private defendant being in illegal possession of suit and is liable to pay mesne profit to plaintiff at the rate of one hundred thousand per year by each defendant from 2006 upto realization of suit.
(e) Any other relief may be granted in favour of plaintiff deems fit and proper in the circumstances of the case.
(f) Cost of the suit may also b e awarded.
3. The defendants Nos. 1 and 2 contested the suit by way of filing written statement and
submitted that the suit of the plaintiff/petitioner is not maintainable under Order II, Rule 2, C.P.C. as the plaintiff has previously filed a Suit No.09 of 2008 in respect of the same
subject matter.
4. The defendant No.10 filed a separate written statement and refuted the claim of the
plaintiff.
5. The trial court out of the pleading of the parties framed issues and additional issue
and directed the parties to argue on the additional issue, which is based on legal objection
"D" of the written statement of dependents Nos.1 and 2, which reads as under:
"That the suit is not maintainable in view of Order II, Rule 2, C.P.C. which say that
the suit should include the whole claim and once a person waives of any portion then
he cannot subsequently file suit over the waived off portion, on this ground too, the suit under reply is liable to be dismissed."
6. The trial court after hearing the parties, vide order and decree dated 09.10.2015
dismissed the suit, which reads as under:
"Suit of the plaintiff is dismissed under Order II, Rule 2, C.P.C."
7. The petitioner being aggrieved of the order passed by the trial court, filed an appeal
before the appellate court, whic h was dismissed vide judgment dated 25.02.2017. Hence this
petition.
8. Notices were issued to the respondents but despite service of summon respondents
Nos.13 to 15 did not appear, as such they were proceeded against ex- parte. On 04.09.2020
the petitioner filed an amended title by impleading the legal heirs of respondents Nos. 9, 11
and 12. Since this matter pertains to the year 2017 and short point is involved in the same, therefore the same cannot be kept pending for indefinite period, as such, I am left with no
other option but to hear the learned counsel for the petitioner and learned A.A.G. and to decide the same on the basis of available record.
9. Heard. Perused the record. The record transpires that the petitioner field a Suit for
Possessi on, Mesne Profit and Permanent Injunction, stating therein that the petitioner is
recorded owner of the property bearing KhataiKhatooni No.35/35, 9 Qitat, Khata/Khatooni No.36/36 and Khata/Khatooni No.59/59, shamilat share of the plaintiff is one share out of 48
shares, whereas his father was deprived by the predecessor of defendants Nos.1 and 2 in the
revenue record in Khatas mentioned above. The record further reveals that previously the plaintiff filed a Civil Suit No.09/2006, which was decreed and the a ppeal was met with the
same fate, whereas the decree passed in Civil Suit No.09/2006 was acted upon. Thereafter the petitioner filed the instant suit. It would be appropriate to reproduce Order II, Rule 2, C.P.C:
(2) Where a plaintiff omits to sue in resp ect of or intentionally relinquishes, any
portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.
Under the aforementioned rule, the splitting of claim is not permissible, all the claim
based on same cause o f action should be include in one suit. The object of Rule 2 of Order II,
C.P.C. is to prevent further litigation between the same parties over the same cause of action, where the plaintiff relinquishes the claim which was available during previous suit, c annot be
suit in part left of the property subsequently. The petitioner/plaintiff previously filed Suit No.09/2006 in respect of the legacy of his father which attained finality. Order II, Rule 2(2), P.P.C. provides that every suit must include all claim t o which plaintiff is entitled in respect
of same cause of action. It is quite evident from above referred sub- rule (2) of rule 2 as the
same was devised to prevent a party from splitting up of its claim arising out from the same cause of action against the same party. Under Order II, Rule 2(2), C.P.C., if the plaintiff omit
or relinquishes any part of his/their right, entitlement, he/they precluded from agitating the
relinquish part of claim in subsequent suit. Reliance is placed on the case of Safdar Ali v .
Muhammad Nawaz 2006 YLR 1137, whereby it has been held as under:
10. Second argument of petitioners' counsel is irrelevant because there is no material
on record on the basis of which it may be inferred that Courts in the previous round of litigation ha d no jurisdiction and lawful authority to decide the matter which was
before them.
It was not denied that in the previous suit, the petitioners had challenged validity of Mutation No.155 to the extent of land measuring 12 Marius only. Petitioners did not assail the mutation to the extent of remaining land, which was allegedly purchased by them through oral sale and had also omitted to assert that shares of the respondents were not correctly reflected in the said mutation. They were therefore clearly debarr ed
from again challenging that mutation on the grounds which were relinquished by them. Their subsequent suit C was therefore squarely hit not only by Order II, Rule 2, C.P.C. but also by constructive res judicata under Explanation IV of section 11, C.P.C.
In another reported case titled Syed Basharat Hussain Shah Gillani and 3 others v.
The Azad Government of the State of Jammu and Kashmir 2018 YLR 31, it has been held as under:
"9. Now, the petitioners, by filing the instant writ petition, have sought the same
remedy in respect of the rent amount which is not permissible under law. Under Order II of C.P.C., a plaintiff must include the whole of the claim for which he is entitled, with regard to the same cause of action. Under rule 2 of the said ord er, when a
plaintiff intentionally relinquishes any portion of his claim he cannot sue in respect of
that portion, afterwards. So, the reference of the petitioners, when was filed, the cause of action was the same as shown in the instant writ petition and on the same cause of action, the petitioners claim enhancement of the rent amount and substantially, in this writ petition, they have also claimed the same relief (i.e. increase in the rent amount) with the ratio of 25% after every three years."
In view of above, I am of the considered opinion that both the Courts below have
come to the right conclusion that the suit of the petitioner/plaintiff hit under Order II, Rule 2, C.P.C. The petitioner has failed to point out any illegality and irregularity in the concurrent findings of courts below, warranting interference by this Court. Hence, the petition is dismissed accordingly.
MQ/67/Bal. Revision dismisseThis 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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