Dr. Tehsin Mazhar Sheikh Vs ADJ Gujranwala etc

Stereo. H C J D A 38.

Judgment Sheet

LAHORE HIGH COURT, LAHORE

JUDICIAL DEPARTMENT

Writ Petition No. 77145/2019

Dr. Tehsin Mazhar Sheikh Versus Additional District Judge etc.

JUDGMENT

Date of Hearing: 04.06.2025 Petitioner by: Ch. Shaheed Aslam Jaurah, Advocate. Ch. Farrukh Mahmud Suleria, Advocate.

Respondent No.3 Proceeded against ex-parte vide order by: dated 01.02.2023.

Anwaar Hussain, J. Through this constitutional petition, the petitioner has assailed order dated 15.05.2019 passed by the Trial Court, whereby the petitioner’s application filed under Order VII Rule 11 of the Code of Civil Procedure, 1908 (“CPC”) was dismissed, and the said finding was upheld by the Revisional Court below through judgment dated 31.07.2019.

2.Learned counsel for the petitioner submit that the impugned order and judgment are against law and facts of the petitioner’s case. Add that both the Courts below have not responded to the issue with regard to the limitation, which was very vital in this case. Add that the suit of respondent No.3 (“the respondent”) was also barred in terms of Order II Rule 2, CPC, however, the Courts below did not consider the facts and cause of action of the earlier suits.

3.The respondent has already been proceeded against ex-parte, vide order dated 01.02.2023.

4.Arguments heard. Record perused.

Writ Petition No. 77145/2019 2

5.Perusal of the record reveals that the respondent had earlier instituted a suit for declaration along with permanent injunction on 05.07.2013, asserting that the cause of action accrued on 25.06.2013, pertaining to a construction agreement dated 29.04.2011 (“the agreement”) and a monetary claim of Rs.3,666,352/- was raised with the prayer that the present petitioner alongwith few others be restrained from handing over construction contract in respect of same project to any other person. The said suit was dismissed for non- prosecution on 25.09.2013. Thereafter, a second suit was instituted on 18.12.2013, again based on the agreement, wherein the claim was increased to Rs.5,660,000/- and similar relief was sought. This suit was contested and issues were framed; however, on 22.01.2018, the same was also dismissed, under Order XVII Rule 3, CPC, for want of evidence.

6.Subsequently, a third suit was filed, out of which the present petition has emanated. This time, recovery of Rs.5,660,000/- was prayed for, once again premised on the agreement. Additionally, it was alleged in the plaint that arbitration proceedings had taken place between the parties and an award had been passed and the petitioner is not complying, with the same, by making the payment. However, factum of filing of the earlier litigation was not disclosed in the plaint of the third suit. The relevant paragraph No.6 of the plaint of the third suit is reproduced below:

وکدیپاوہیئبجامنیبرفنیقی(دمیعو014..40.22ہیہکانبےئدوعییلہپرمہبتومرہخ ۔۶’’ وگرجاوناہلےطاپایہکبجدورسی،واعقرٹباونایلایسوکلٹروڈ،دماعہیلع)اعمدہہریمعتامعرتوفراٹسرولفرزلم رمہبت بج دماع ہیلع ےن دمیع یک رٹسنکنشک یک ابتب ےننب وایل ارجت یک رمق ادا رکےن ےس ااکنر رکدای اور آرخی رمہبت دوعی دارئی ےس دو روز لبق بج دماع ہیلع ےن رحتریی ہلصیف اثیثل یک الخف ورزی رکےت ‘‘روےپادارکےنےسیعطقااکنرےسدیپادشہےہ۔56,60,000/- وہےئدمیعوکرمقغلبم While contesting the suit, the petitioner filed an application under Order VII Rule 11, CPC on two specific legal grounds: first, that the

suit is barred under Order II Rule 2, CPC, in view of the prior two suits having been filed and dismissed on the same cause of action; and second, that the suit is ex facie barred by limitation. The Trial Court dismissed the said application without adequately addressing either objection whereas the Revisional Court below, while upholding the order of the Trial Court, merely, observed that the existence of an arbitration award does not bar institution of a civil suit, without determining whether the earlier suits precluded the subsequent suit under Order II Rule 2, CPC or whether the limitation applied.

7.It is a settled proposition that where a plaintiff omits to sue for relief arising from the same cause of action in an earlier suit, he is barred from instituting a subsequent suit in respect thereof. In the present case, the respondent/plaintiff not only had the opportunity but did in fact claim monetary relief on two earlier occasions, more particularly, Rs.5,660,000/- in the second suit, which is exactly the claim of the third suit. After dismissal of first two suits—one summarily and the other under Order XVII Rule 3, CPC—a third suit on the same facts and agreement is barred. Moreover, the failure to disclose prior litigation also constitutes material suppression and undermines the plaintiff’s bona fides. The entire grievance of the respondent is based on the agreement, which is dated 29.04.2011 and the last stated cause of action admittedly accrued in the year 2013 when the first suit was instituted. However, while instituting the third suit out of which present petition has arisen, an attempt to distinguish the present claim by making reference to arbitration proceedings is not substantiated through proper pleadings or documentary evidence and does not amount to a fresh cause of action, which rightly persuaded the petitioner to file the application under order VII Rule 11, CPC. No specific date of alleged award has been pleaded, nor is any valid basis shown for extending the limitation. Moreover, it is an established

principle of law that a party cannot be permitted to agitate the same cause of action repeatedly through successive and piecemeal litigation, thereby frustrating the settled norms of judicial discipline. Nothing is available on record to establish that any efforts were made to have the purported award made a Rule of the Court, under the Arbitration Act, 1940 (“the Act 1940”). Without invoking the mandatory procedure prescribed by law-the Act 1940, the respondent now seeks to get relief in a third suit on the same agreement, this time cloaked as a suit for specific performance. This pattern of conduct— electing one remedy, abandoning it after adverse consequences, then shifting to the arbitration without proper recourse, and finally returning to file a third suit without compliance with the mandatory legal provisions—is precisely what the doctrine of election, the bar contained in Order II Rule 2 CPC, and the scheme of the Act, 1940 aim to prevent. If such litigation is allowed to proceed without scrutiny under Order VII Rule 11 CPC, it would set a dangerous precedent whereby a litigant could perpetually avoid finality by alternating between forums and/or remedies, without accountability. The law does not permit a party to keep the adversary entangled in an unending chain of litigation by withholding material facts, disowning procedural consequences, and reviving stale claims under the guise of a fresh suit. The respondent, having exhausted his remedies and failed to pursue them diligently, cannot now be allowed to relitigate the same dispute under a new garb. I am fortified by the law laid down in case reported as Chief Executive Officer NPGCL GENCO-III, TPS Muzafargarh v. Khalid Umer Tariq Imran and others (2024 SCMR 518). The claim, therefore, is clearly barred by law, which aspect of the matter has escaped notice of the Courts below. This vital jurisdictional objection altogether has not been addressed by the Courts below, which amounts to a material irregularity and merits correction.

8.In view of the above discussion, this petition is allowed. The orders dated 15.05.2019 and 31.07.2019 passed by the Courts below are set aside. The application filed by the petitioner under Order VII Rule 11, CPC is accepted, and as a corollary, the plaint of the suit instituted by the respondent is rejected.

(ANWAAR HUSSAIN)

Judge

Approved for reporting.

Judge Akram