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Civil Appeal No. 4‑P of 1968, decided on 18th November 1969.
(On appeal from the judgment and order of the High Court of West Pakistan, Peshawar Bench, Peshawar, dated the 27th September 1965, in R. S. Appeal No. 305 of 1965).
S. 105 (2) and O.II, r. 2 & O. XLI, r. 23‑--Order of remand on preliminary point by appellate Court‑--Appeal competent but no appeal preferred‑--Order becomes final and cannot be re‑agitated‑--Suit resisted as barred under O. II, r. 2 and dismissed by trial Court on that score‑Appel late Court reversing decree and remanding case for fresh decision on other issues--‑No appeal preferred against order of remand ---Held, objection under O.II, r. 2 could not be re‑agitated in fresh appeal.
O. II, r. 2 ‑---Words "cause of action"‑Meaning‑Rough test to determine bar under O. 11, r. 2.
The expression "cause of action" in Order II, rule 2, C. P. C means the cause of action for which a suit is brought. In order that the cause of action for the two suits may be the same, it is necessary not only that the facts which would entitle the plaintiff to the right claimed must be the same but also that the infringement of his right at the hands of the defendants complainer against in the two suits, must have arisen in substance out of the same transaction. In considering the application of this bar, regard is to be had to the allegations in the two suits without reference to the defence that may be set up by the defendants. A rough test, although not a conclusive one, is to see whether the same evidence will sustain both suits which would be the case if both the suits are founded on continuous and inseparable incidents in the same transaction. The question, however, is to be examined in substance and not merely on form as the cause of action in the two suits may be found to be the same, in spite of the facts alleged not being exactly identical in the two cases. It is not open to the plaintiff to split up the parts really constitut ing the same cause of action and file different suits in respect of them. In other words, a plaintiff must ask for all his reliefs which flow from the grievances caused to him by the infringement of his rights by the defendant in the course of the same transac tion, but he cannot and is under no obligation to add to his grievances which did not occur in that transaction. If two tres passes are alleged against a defendant, both in the course of the same transaction, a plaintiff must seek his remedy in one suit against both and he cannot split up his cause of action to sue for one trespass in one suit and for the other in a subsequent suit. But where the two trespasses allegedly have taken place on differ ent occasions and the second was not in existence at the time of the first suit, there could neither be any occasion nor any necessity for the plaintiff to seek his redress for the second trespass in the first suit. In the latter circumstances a second suit would not be barred under Order II, rule 2 of the Civil Procedure Code.
Muhammad Khalil Khan and others v. Mahboob Ali Mian and others P L D 1948 P C 131 ref.
Peer Bakhsh Khan, Advocate Supreme Court instructed by Abdul Samad Khan, Attorney for Appellants.
Khan Bahadur Khan, Advocate Supreme Court instructed by G. S. Gideon, Attorney for Respondents Nos. 1 and 2.
Respondent No. 3: Ex parte.
Date of hearing: 18th November 1969.
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