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Petitioner: Kamila Aamir and another VS Respondent: Additional District & Session Judge and JUDGMENT
Court Name: Lahore High Court Judge(s): Shams Mehmood Mirza Title:Kamila Aamir and another vs Additional District & Session Judge and
JUDGMENT
Reported As: 2023 LHC 3572, PLD 2023 Lahore 601, PLJ 2023 Lahore 735 Result: Petition Dismissed Judgment JUDGMENT SHAMS MEHMOOD MIRZA, J.- The orders passed by the courts below are at variance on an application filed by respondents No.2 under Order VII Rule 11 of the Code of Civil Procedure 1908 (the Code). The trial court dismissed the application on 16.10.2020 whereas the additional district judge while accepting the revision of respondent No.2 on 31.03.2021 allowed the application and rejected the plaint of the suit of the petitioners in terms of Order II Rule 2 of the Code. 2. The relevant facts necessary for the decision on the issue involved in this petition may be stated as follows. The parties who are closely related with each other are litigating over the estate left by Mian Muhammad Sharif, their predecessor-in-interest. Mst. Naseem Akhtan and Shughfta Saleem, the mothers of the petitioners, were the daughters of Mian Muhammad Sharif. The petitioners in the two suits filed by them claimed share of their mothers in the estate of Mian Muhammad Sharif and challenged the Deed of Family Settlement registered on 03.08.1991 (deed of family settlement) and Surrender Deed registered on 13.08.1999 (surrender deed) through which the properties left behind by Mian Muhammad Sharif were distributed amongst his legal representatives. 3. The first suit was filed on 12.05.2016 by petitioner No.1 (first suit) in which petitioner No.2 was cited as defendant No.10. She was subsequently transposed as co-plaintiff. This suit made a challenge to the surrender deed. 4. While the first suit was pending, the petitioners instituted the second suit on 16.01.2020 (second suit) for declaration, possession and cancellation of documents i.e. deed of family settlement, surrender deed and Hibas.
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5. The application under Order VII Rule 11 of the Code was filed by respondent No.2 on 10.02.2020 in the second suit for rejection of the plaint, inter alia, stating that the first suit filed by the petitioners seeking cancellation of the surrender deed is pending and during its pendency the petitioners could not have instituted the second suit. The petitioners contested the application by filing their reply. The trial court, as noted above, dismissed the said application which was allowed in the revision filed by respondent No.2 and the plaint of the suit was rejected in view of the bar contained in Order II Rule 2 on the ground that the claim made by the petitioners in the second suit was not included in the first suit. 6. Learned counsel for the petitioners submit that the plaint could not be rejected summarily and that at best an issue ought to have been framed for receiving evidence from the parties. It was furthermore submitted that while passing decision on the application the court was only required to look at the averments of the plaint to ascertain whether the suit is barred by any law or whether the plaint does not disclose any cause of action. It is added that respondent No.2 could not have filed the application under Order VII Rule 11 without first filing the written statement. It was also the case of the petitioners that the decision in the first suit was necessary before invoking the provisions of Order II Rule 2. 7. Learned counsel for the respondents controverted the stance of the petitioners by stating that the facts regarding filing of the two suits were admitted and as such there was no requirement for framing of an issue and recording of evidence of the parties. The learned counsels informed that the written statement was filed in the suit. The attention of this Court was drawn towards the first suit in which the petitioners in paragraph No.2 categorically admitted the deed of family settlement which was subsequently challenged in the second suit. The respondents also referred to the suit filed by Mrs. Farkhanda Anwar, one of the legal representatives of Mian Muhammad Sharif, for laying a challenge to the deed of family settlement in which proceedings the mothers of the petitioners were also party who filed their written statement accepting the deed of family settlement. The suit was decided on the basis of the compromise entered on 18.02.2000 between the parties and that the mothers of the petitioners appeared in person and got recorded their statements before the court. It was thus contended that the additional district judge was correct in applying the provisions of Order II Rule 2. 8. To understand the controversy, it is essential that the causes agitated, and the claims made in the two suits be considered and analyzed. The first suit sought declaration regarding the surrender deed which was executed in favour of respondent No.2 by the other legal representatives of Mian Muhammad Sharif in respect of certain plots which were to be exempted in lieu of acquisition of land belonging to Mian Muhammad Sharif. It was stated in the first suit that the surrender deed was executed on the understanding that after the conclusion of litigation and clearance of the plots the same shall be delivered by respondent No.2 to the other legal representatives of Mian Muhammad Sharif as per their share. The suit was filed on account of failure and refusal of respondent No.2 to hand over the plots and his claim of ownership on the said plots. The petitioners of course claimed the share of their mothers in the plots. It may be pointed out that the petitioners admitted in the plaint that after the death of Mian Muhammad Sharif his legal representatives distributed their properties through the deed of family settlement. The plaint also mentioned the suit by one of the legal heirs namely Farkhanda Anwar challenging the deed of family settlement which was decided through a compromise between the parties. It was accordingly stated in paragraph 2 of the plaint that "So, the parties left with no controversy between them in respect of family settlement deed dated 3/08/1991 thus, the Family Settlement Deed attained finality." 9. Notwithstanding the admission made in the first suit regarding the veracity of the deed of family settlement, the petitioners filed the second suit, inter alia, for laying a challenge to the deed of family settlement. After giving details of the properties in paragraph 2 of the plaint including the
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plots that were subject matter of the first suit, it was specifically alleged in paragraph 3 that the legal heirs of Mian Muhammad Sharif including the mothers of the petitioners became owners of his properties through inheritance. Most importantly, the petitioners stated in the plaint that the cause of action arose from the date of demise of Mian Muhammad Sharif. The petitioners sought declaration in respect of the entitlement of their mothers to share in the inheritance of Mian Muhammad Sharif. The petitioners also sought declaration in respect of the deed of family settlement and surrender deed on the basis that these instruments were illegal, void and non- existent. The Hibas made in the year 1985 and 1988 were also brought under challenge. 10. The order passed by the Additional District Judge on 31.03.2021 in allowing the revision of respondent No.2 placed reliance on Order II Rule 2 CPC for rejection of plaint in the second suit by holding that "In view of the bar contained under order II rule 2 CPC, no useful purpose would be served to try this suit." 11. The provisions contained in Order II Rule 2 in so far as they are relevant read 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. (2) Relinquishment of part of claim. 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. (3) Omission to sue for one of several reliefs. 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. 12. A cursory look at the provision indicates that it has the following three main aspects (i) Every suit shall include the whole of the claim a plaintiff is entitled to make in respect of a cause of action; the plaintiff can, however, relinquish any portion of his claim; (ii) where a plaintiff omits to sue or intentionally relinquishes any portion of the claim which he is entitled to make, he shall not afterwards be permitted to sue for the portion of the claim that has been omitted or relinquished; (iii) where a plaintiff is entitled to more than one relief on a particular cause of action, he may sue for all or any of such reliefs. Omission to sue for all such reliefs, except with the leave of the court, shall preclude him from bringing a subsequent suit to claim the relief so omitted. 13. The Additional District Judge dealt with the issue in a rather straightforward manner, but this Court is required to consider several interrelated matters which were raised by the parties at the hearing to determine what rules will apply to resolve the competing claims. It will be the endeavour of this Court to conduct an in-depth analysis of the rule against claim/relief splitting as contemplated by Ordre II Rule 2 with reference to judgments from this jurisdiction and foreign jurisdictions. 14. There are three specific terms used in Order II Rule 2 which are required to be interpreted as these shall have bearing on a just decision of this case. These terms are cause of action, claim and relief. 15. The expression cause of action has not been defined in the Code although several attempts have been made in the judgments to explain it. Various authorities have referred it to mean that every fact, which if traversed, it would be necessary for the plaintiff to prove to support his right to a judgment by of the court. This definition would generally suffice but it does not necessarily provide a satisfactory answer as to what is the cause of action. This Court shall not make an attempt to define the term cause of action in recognition of the fact that the scope thereof is vague and that it must be applied broadly to carry out the functions of the Code which are designed to achieve convenience and efficiency in trial of the suits. This policy of the Code is indubitably brought forth by Order II Rule 1 according to which all matters in dispute between the parties relating to the same
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transaction be disposed of in a single suit. Generally looking at the provisions of Orders I & II of the Code would make it evident that when the right recognized by law is violated constituting a legal wrong, a cause of action can be said to have arisen. A fortiori, it is the legally recognized wrong that creates the right to sue. It is axiomatic that facts which do not represent the existence of right in the plaintiff with a corresponding duty in defendant to observe that right and an infringement of that right or duty is no cause of action. In Stone v. Cass, 34 Okla. 5, 124 P. 960, the Court stated that "There can be no cause of action, unless there is a wrong for which redress is afforded. Nor can there be a subject of action, unless there is a right and a wrong done to it. The right might exist for ages, but is not a subject of action until it is infringed upon. The wrong might be continuous, but is not a cause of action, unless relief is afforded." Cause of action thus comprises material facts (to borrow the term from the Code) constituting the right and its infringement which entitles a person to sue the wrongdoer or anyone liable for it. The logical progression of this rule dictates that a cause of action must include a set of primary or operative facts that represent a legally recognized wrong that creates the right to sue which gives rise to a claim enforceable in court. Each cause of action consists of points the plaintiff must prove, and all these elements must be satisfied before the court can take action. This broad categorization of the rule is in accord with the scheme of the Code. 16. The Indian Supreme Court in the case of Om Prakash Srivastava v. Union of India and Anr. 2006 6 SCC 207 expressed the principle of cause of action on the following terms which are not very dissimilar to what has been stated above: The expression "cause of action" has acquired a judicially settled meaning. In the restricted sense "cause of action" means the circumstances forming the infraction of the right or the immediate occasion for the reaction. In the wider sense, it means the necessary conditions for the maintenance of the suit, including not only the infraction of the right, but also the infraction coupled with the right itself. (Emphasis Added) 17. Order II Rule 2 requires that a plaintiff must join all claims arising from the same set of facts in a single proceeding instead of bringing successive actions. The bar contained in the rule is against splitting the claim in respect of the cause of action and not the cause of action itself. A cause of action is simply the technical, legal name representing the facts which give rise to a claim enforceable in court. Although the term claim is generally used interchangeably with cause of action, its use within the confines of the rule refers to a right which would be enforceable if decreed by the court. The cause of action signifies and provides the pivotal ingredients for establishing the basis for legal claim and is also relevant for other purposes such as computation of limitation period, determination of the proper forum for filing of claim (jurisdiction) and locus standi etc. In the case of breach of contract, for example, the injured party might sue for damages or specific performance both of which shall be the claims and facts supporting the breach of contract and losses sustained by the injured party shall constitute the cause of action. A cause of action broadly speaking is the factual matrix forming basis of the claim and it also identifies the legal nature of those claims, which is the technical meaning of a cause of action. This position is best illustrated by 1309489 Ontario Inc. (formerly known as Xincon Technology (Canada) Inc.) v. BMO Bank of Montreal et al. 2011 ONSC 5505 in which Justice Lauwers of the Ontario Superior Court of Justice noted as follow: [18] As I observed in Ivany v. Financiere Telco Inc., [2011] O.J. No. 4162, 2011 ONSC 2785, the proper definition of the term "cause of action" is somewhat elusive even though lawyers and judges routinely use it. Halsbury's Laws of England, 5th ed., vol. 11 (London: LexisNexis, 2008), at para. 21, explains: Cause of action "has been defined as meaning simply the facts the existence of which entitles one person to obtain from the court a remedy against another person. The phrase has been held from
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the earliest time to include every fact which is necessary to be proved to entitle the claimant to succeed, and every fact which the defendant would have a right to dispute." Cause of action "has also been taken to mean that particular act on the part of the defendant which gives the claimant his cause of complaint, or the subject matter or grievance founding the claim, not merely the technical cause of action. The same facts or the same transaction or event may give rise to more than one effective cause of action." (Internal footnotes omitted) [19] Note the two expressions used in this excerpt: "cause of action" and "technical cause of action". These identify the two senses in which lawyers and judges use the term "cause of action". Sometimes they are speaking of a factual matrix, that is, the factual cause of the plaintiff's complaint. At other times, however, lawyers and judges use the term "cause of action" to identify the legal nature of the claim; recognized causes of action in this legal sense include, for example, breach of contract, negligence, breach of fiduciary duty and so on, each of which has its own constituent elements. (Emphasis supplied) The Court thus made the distinction between the claim on the one hand and cause of action on the other by holding cause of action as the factual matrix and claim being the legal basis upon which relief is based. 18. The claim must, however, be distinguished from relief which relates to the form of remedy a person seeks from the court. Relief or remedy is the means through which the cause of action is effectuated and the wrong is redressed (see Balbir Singh v. Atma Ram AIR 1977 Allahabad 211). Generally speaking, there are four types of reliefs available in a civil action i.e. declaratory remedy, equitable relief, restitution, recovery and financial damages. Relief, it may be stated, does not form part of the cause of action. 19. The rule prevents the plaintiff from splitting the claims and the reliefs which are based on the same cause of action with the aim that a single cause should not be segregated among several suits. The objective appears to safeguard against the defendant being vexed twice in respect of the same cause of action underpinning the claim. In case of omission to sue or intentional relinquishment of a claim, the rule places a bar on bringing a subsequent action in regard thereto. Similarly, the rule compels a plaintiff to sue for all reliefs arising from the same cause of action and in case of his omission to do so he shall be barred from that relief in a subsequent suit except where he took the leave from the court. 20. The Supreme Court in Hashim Khan v. National Bank of Pakistan PLD 2001 SC 325 described the claim/relief splitting rule on the following terms. 9. The reading of the said provision in very clear terms discloses that omission or failure to include any of the reliefs operates as relinquishment of such claim, it is essential that party instituting proceedings should include all reliefs flowing out of main grievance, otherwise omission would be fatal, as such, it would be essential for the plaintiff to assert claimable reliefs concerning the grievance of cause of action. However, if any such relief which flows out of basic grievance is not claimed or omitted, then such party stands precluded from agitating those reliefs subsequently. The main object of the above provisions is to avoid splitting of claim and restrict multiplicity of litigation in the matter. (Emphasis added) This excerpt captures the essence of and in fact endorses what has been discussed above regarding the difference between claim and cause of action. It is worth noting that the Supreme Court being cognizant of the true import of the rule on purpose avoided the expression cause of action rather the term main grievance or basic grievance was employed. The judgment explicitly states that any omission to sue for relief emanating from the main/basic grievance in the first suit would bar a second suit subsequently.
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21. While interpreting Rule 2 of Order II CPC, the Indian Supreme Court in the case of Virgo Industries (Eng.) (P) Ltd. v. Venturetech Solutions (P) Ltd. 2013 (1) SCC 625 held as follows: 9. ...It is, therefore, clear from a conjoint reading of the provisions of Order 2 Rules 2(2) and (3) CPC that the aforesaid two sub-rules of Order 2 Rule 2 contemplate two different situations, viz., where a plaintiff omits or relinquishes a part of a claim which he is entitled to make and, secondly, where the plaintiff omits or relinquishes one out of the several reliefs that he could have claimed in the suit. It is only in the latter situations where the plaintiff can file a subsequent suit seeking the relief omitted in the earlier suit proved that at the time of omission to claim the particular relief he had obtained leave of the court in the first suit. 22. Similarly, in the case of V. Kalyanswamy (D) By Lrs. & Anr. v. L. Bakthavatsalam (D) By Lrs. & Ors. 2020(3) RCR (Civil) 404, the Indian Supreme Court made the following important observations. The difference between Order 2, Rule 2 (2) and Order 2, Rule 2 (3) of the CPC may be noticed. The law contemplates a distinction between a case where a claim arising out of the cause of action is either intentionally relinquished or omitted to be sued upon. Such a claim cannot be the subject matter of a fresh suit. However, when more than one reliefs are available stemming from the same cause of action, then, seeking further reliefs than sought in the first suit, except where leave is obtained, would be barred. However, present the grant of leave by the court, his subsequent suit seeking the reliefs which were originally not sought but for which leave is granted, is permissible. The principle of this provision is actually captured in Order 2, Rule 2 (1) of the CPC which is that every suit is to include the whole of the claim which arises out of the cause of action and which the plaintiff is entitled to make. It further declares that it is open to a plaintiff to omit any portion of the claim. However, the consequences of the same are declared in Order 2, Rule 2 (2) of the CPC. (Emphasis supplied) 23. In the case of Secor v. Sturgis, I6 N. Y. 548, the principle was stated by the Court of Appeal as follows: The principle is settled beyond dispute that a judgment concludes the rights of parties in respect of the cause of action stated in the pleadings on which it is rendered, whether the suit embraced the whole or only part of the demand constituting the cause of action. It results from this principle, and the rule is fully established, that an entire claim, arising either upon a contract or from a wrong, cannot be divided and made the subject of several suits; and if several suits be brought for different parts of such a claim, the pendency of the first be pleaded in abatement of the others, and a judgment on merits in either will be available as a bar in the other suits. 24. Barrow v. Bankside Agency Ltd. [1996] 1 W.L.R. 257 was a case in which negligent underwriting was in issue. Barrow being the member of an action group had successfully sued a number of members' agent and recovered a portion of the damages. Barrow subsequently initiated fresh proceedings against his members' agent on a different ground. The English Court of Appeal held as under: The rule in Henderson v. Henderson (1843) 3 Hare 100 is very well known. It requires the parties, when a matter becomes the subject of litigation between them in a court of competent jurisdiction, to bring their whole case before the court so that all aspects of it may be finally decided (subject, of course, to any appeal) once and for all. In the absence of special circumstances, the parties cannot return to the court to advance arguments, claims or defences which they could have put forward for decision on the first occasion but failed to raise. The rule is not based on the doctrine of res judicata in a narrow sense, nor even on any strict doctrine of issue or cause of action estoppel. It is a rule of public policy based on the desirability, in the general interest as well as that of the parties themselves, that litigation should not drag on for ever and that a defendant should not be oppressed by successive suits when one would do. That is the abuse at which the rule is directed.
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25. The principle underlying Order II CPC cannot be properly grasped without considering the principle of joinder of parties and joinder of causes of actions. The two suits filed by the petitioners involved joinder of plaintiffs and defendants. The provisions of Order I Rules 1 and 3 provide guidelines for who may be joined as plaintiffs and defendants. Rule 1 of Order 1 states that all persons may be joined as plaintiff in one suit in whom any right to relief in respect of, or arising out of, the same act or transaction or series of acts or transactions is alleged to exist, whether jointly, severally or in the alternative. The provision also specifies the test for such joinder to the effect that if separate suits were brought by such persons, any common question of law or fact would arise. Rule 3 is a similar provision regarding the joinder of defendants. Order II Rule 3 permits for joinder of causes of actions by a plaintiff in the same suit against the same defendant or the same defendants jointly. Order II Rule 4 qualifies the scope of joinder of causes of actions concerning recovery of immovable property by making leave of court as a necessary pre-condition. There are, however, certain exceptions to the rule one of which is where claim in which the relief sought is based on…
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