اگردعوی دائر کرتے وقت مدعی اپنا کوئی ریلیف چھوڑ دے تو بعد ازاں دعوی میں مدعی اس ریلیف کی استدعا نہ کر سکتا ہے

 اگردعوی دائر کرتے وقت مدعی اپنا کوئی ریلیف چھوڑ دے تو بعد ازاں دعوی میں مدعی اس ریلیف کی استدعا نہ کر سکتا ہے

Order 2 Rule 2 CPC

PLJ 2017 Lahore 145

Present: Shams Mehmood Mirza, J.

M/s. BHATTI BROTHERS RICE MILLS--Plaintiff

versus

SUMMIT BANK LIMITED--Defendant

C.O.S. No. 1 of 2012 and C.M. No. 207-B of 2015, decided on 16.3.2016.

Civil Procedure Code, 1908 (V of 1908)--

----O. II, R. 2 & O. VII, R. 11--Rejection of plaint--Suit was barred--Recovery of damages, redemption of properties, cancellation of documents, rendition of accounts was founded on different cause of action--Validity--Plaintiffs were entitled at time of filing of first suit to claim all reliefs, mentioned in subsequent suit--Plaintiffs admitted having suffered huge losses and also claimed for redemption of mortgaged properties and for rendition of accounts and yet necessary reliefs flowing out of cause of action were not claimed although plaintiff was entitled to same--If plaintiff omits to sue for all claims and reliefs to which he is entitled in respect of a cause of action, he will be precluded to sue for same in second suit--Plaintiffs omitted to sue for reliefs/claims flowing out of cause of action at time of filing of first suit thereby relinquishing same--Application was allowed. [P. 146] A, B & C

Mr. Akhtar Javid, Advocate for Plaintiff.

Mr. Akif Majeed, Advocate for Defendants.

Date of hearing: 16.3.2016.

Order

This is an application filed under Order VII Rule 11, CPC by the defendant bank for rejection of plaint on the ground that suit is barred under Order II Rule 2, CPC.

2.  It is stated that the plaintiffs had earlier instituted a suit against the defendant bank before the banking Court on 20.09.2011 on the same set of facts as has been alleged in the present suit. It is further stated that said suit on 17.07.2013 was disposed of on the statement recorded by learned counsel for the parties. It was according contended that the present suit was barred under the provision of Order II Rule 2, CPC.

3.  Learned counsel for the plaintiff submitted that the suit earlier filed before the banking Court was for permanently restraining the defendant bank from taking coercive measures against the plaintiff for the recovery of the amounts and that the same was disposed of on the conceding statement of the learned counsel for the defendant bank. It was accordingly urged that the present suit which sought recovery of damages, redemption of properties, cancellation of documents, rendition of accounts etc was founded on a different cause of action and was not hit by the principle laid down in Order II Rule 2, CPC.

4.  Argument heard and record perused.

5.  A comparison of the plaints in both the suits shows that the facts alleged therein are similar and identical in nature. It is thus clear that plaintiffs were entitled at the time of filing of the first suit to claim all the reliefs, mentioned in the subsequent suit. In the first suit, the plaintiffs admitted having suffered huge losses and also claimed to have asked the defendant bank for redemption of the mortgaged properties and for rendition of accounts and yet the necessary reliefs flowing out of the cause of action were not claimed although the plaintiff was entitled to the same. In terms of Order II Rule 2, CPC, if the plaintiff omits to sue for all the claims and reliefs to which he is entitled in respect of a cause of action, he will be precluded to sue for the same in the second suit. The plaintiffs omitted to sue for the reliefs/claims flowing out of the cause of action at the time of filing of the first suit thereby relinquishing the same. They are, therefore, precluded to sue for the same in the second suit.

6.  In the result, this application is allowed and the plaint is rejected in terms of Order VII Rule 11, CPC.

(R.A.)  Application allowed