Judgment ^Sheet

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Civil Revision No. S – 07 of 2007

Date of hearing: 06-09-2021

Date of order: 06-09-2021

Mr. Tariq G. Hanif Mangi, Advocate for the applicants.

M/s Abdul Qadir Shaikh and Abdul Aziz Shaikh, Advocates for respondents No.4 to 6.

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O R D E R

Muhammad Junaid Ghaffar, J. – Through this Civil Revision Application, the applicants have impugned judgment dated 04-12-2006 and decree dated 14-12-2006 passed by the 2^nd Additional District Judge, Khairpur in Civil Appeal No. 50 of 2006, whereby judgment dated 24-05-2006 and decree dated 29-05-2006 passed by the Senior Civil Judge, Mirwah in F.C. Suit No. 06 of 2003, through which the plaint in Suit of the Applicants was rejected in terms of Order 7 Rule 11 CPC, has been maintained.

2. Learned Counsel for the applicants submits that the Courts below have fallen in error by dismissing the Suit on the ground of res judicata, whereas, Section 11 CPC would not apply in a case where plaint has been rejected in terms of Order VII Rule 11 CPC; that earlier the Plaint was filed on rights claimed under muhag, whereas, second Suit was filed claiming rights under a lease; that the applicants had a fresh cause while filing the second Suit, and once a Plaint has been rejected, a fresh Suit / Plaint is maintainable and cannot be rejected under section 11 CPC as no adjudication was done on merits in the first round.

3. On the other hand, the learned Counsel for the respondents has argued that a Civil Court cannot grant any land; that the Suit was not maintainable; that the applicants had earlier approached the Revenue hierarchy and lost in all proceedings, but never challenged those orders any further, hence, no case is made out. In support, he has relied upon Allah Warayo v. Khalifo Muhammad Ashraf (PLD 2009 Karachi 373), Muhammad Riaz and others v. Mst. Ameer Bevi and others (2008 SCMR 1427), Syed Shujhat Hussain Kazmi v. Mst. Nazish Kazmi (2007 CLC 1771), Sar Anjam v. Abdul Raziq (1999 SCMR 2167), Abdul Rahim and another v. Mrs. Jannatay Bibi and 13 others (2000 SCMR 346) and Muhammad Hussain Munir v. Sikandar (PLD 1974 Supreme Court 139).

4. I have heard both the learned Counsel and perused the record.

5. It appears that earlier a Suit No.47 of 2002 for Injunction was filed in respect of the same property by one Zafar Ali, (son of Applicant No.2 herein), claiming the said property on the basis of inheritance, on the ground that the same was owned by his grandfather and was situated in Muhag of the land of the Plaintiff; that they were being dispossessed without due process; hence, the Suit for Injunction against the Defendants. It is an admitted position that the plaintiff in that Suit is the son of the present Applicant No.2. The Plaint in that Suit was rejected by order dated 29‑06‑2002 passed by the Senior Civil Judge, Mirwah, and the said rejection of Plaint attained finality as no further appeal was preferred. Subsequently, the father of the said plaintiff, the present Applicant No.2 filed a fresh Suit in respect of the same Suit property claiming the same on the basis of some lease; however, it is a matter of record that the title was claimed to have been devolved on the present Applicant No.2 from the same source that is the grandfather. To that effect there appears to be no dispute that neither of the Plaintiffs in both the Suits had ever claimed to be owners of the suit property in their own right and capacity.

6. Now the only legal question, which has been argued by the present applicants’ Counsel, is that if a Plaint has been rejected under Order VII Rule 11 CPC, then a fresh suit is not always barred; and secondly, Section 11 i.e. Res judicata does not apply against an order of rejection of plaint under Order VII Rule 11 CPC as the issue has not been decided on merits.

6. As to the first proposition, there is no cavil that if a plaint has been rejected under Order VII Rule 11 CPC, it can again be presented again after curing the defect so pointed out in the order of rejection. However, insofar as this legal proposition is concerned, it is not the case of the applicants that they had presented a fresh plaint after curing the defect. What has been attempted is a fresh plaint on an alleged new cause of action. The first suit was on some right under Muhag; whereas, the second suit was on lease rights. This was not the case. The property was the same; the parties remained the same (as the ownership has been claimed on the basis of heirship) and so also the cause of action. Mere change of words in the second plaint would not suffice.

7. The second proposition that Res judicata under section 11 CPC, does not apply on an order of rejection of plaint under Order 7 Rule 11 CPC; again there appears to be no cavil to this proposition. However, in this case it does not appear to be so. The Suit property is the same; the parties are also the same in the sense that they both claimed ownership upon devolution of inheritance rights from their ancestors, and therefore, even if the rejection of plaint and the principle of Res judicata does not apply, the provisions of Order II Rule 2 CPC is fully attracted. The provision of Order 2 Rule 2 CPC is clear to that extent and reads as under.

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 Suit within the jurisdiction of any Court.

Relinquishment of part of claim—(2) 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.

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.

Explanation: For the purposes of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action.”

The aforesaid provision provides that 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 Suit within the jurisdiction of any Court and 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. Rule further provides that 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. Though the Counsel made an attempt to argue that the relief being sought through subsequent Suit is not arising out of the same cause of action for which the earlier Suit was filed; however, I am not inclined to agree with his submissions. Nothing prevented the Applicants to claim all the relief(s) in the first suit; as the cause of action for doing so had already accrued. They admittedly, relinquished such claim and therefore, now at this stage the principle of Res-judicata squarely applies and the second Suit would to be barred under Order 2 Rule 2 CPC. If in the first suit, something was left out in the prayer as to the claim of ownership in respect of the same property, then it would be deemed to have been waived that no further relief would be sought subsequently. It is settled law that all reliefs are to be claimed together and not in piecemeal. If not, then it would be deemed to have been waived and abandoned. The parties are required to claim all reliefs together and cannot split the same in two parts, which in the instant case, has been argued that the first suit was on muhag basis and the second was on some lease.

8. Notwithstanding the above, it is an admitted position that the learned Appellate Court has already taken pains to address the issue on merits of the case as evidence was already on record. The point for determination in this context was that “whether revenue authorities granted the land to deceased Wazir illegally and the appellant are entitled for the relief as claimed in the plaint?” The Learned Appellate Court after a thread bare examination of the evidence on record came to the conclusion that the Appellants had failed to establish their case in any manner; that they lost the proceedings before the Revenue authorities; that the lease of the ancestors of the Applicants had expired after 5 years; that the land was then granted to the Respondents in terms of the land grant policy; that the Appellants had failed to lead any evidence in their support; that all official witnesses who came before the court had supported the case of the Respondents; that no relief of ownership was properly claimed in the plaint; that only the order in favor of the Respondents was challenged; that they failed to prove that any compromise was ever reached between their predecessor in interest with the predecessor in interest of the Respondents; that the entire land was found in possession of the Respondents. All this has gone unchallenged and unrebutted before this Court in any manner. Therefore, the argument that only a legal question as noted above was involved in the matter and it ought to have been remanded to the trial court for deciding the same on merits of the case is ill-founded.

9. In view of hereinabove facts and circumstances of this case, I do not see as to any misreading and non-reading in the orders passed by the two Courts below, as even otherwise, if Section 11 is not applicable, the second suit of the applicants was hit by Order II Rule 2 CPC and would have met the same fate as the subsequent suit was not maintainable. Besides this the Applicant in view of the finding of the Appellate Court, even otherwise have no case on merits.

10. In view of the above, this Revision Application being misconceived was, therefore, dismissed by means of a short order on 6.9.2021 and these are the reasons thereof.

J U D G E

Abdul Basit