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Civil Petition for Leave to Appeal No. 81R of 1984, decided on 22nd January, 1986.
(On appeal from the judgment and order of Lahore High Court, Bahawalpur Bench in Civil Revision No. 61 of 1981).
‑‑‑Art. 185(3)‑‑Civil Procedure Code (V of 1908), S.115, O.VII, r.11 O.IX, r.9‑‑Revision‑‑Discretionary relief‑‑Application for temporary injunction‑‑Applicant contumaciously withholding information from trial Court‑‑Application rejected by the trial Court on ground that plaintiff's was earlier dismissed‑‑Decision upheld in appeal but set aside in to appeal granted to consider that revision and was not available to a person who came to court with unclean hands; that respondents having admitted dismissal of his previous suit in grounds of appeal before District Judge as appeal was in continuation of suit and as such averments in memorandum of appeal could be looked into for purposes of O.VII, r.11, C.P.C. and previous suit having been filed on same cause of action and dismissed in default under O.IX, r.8, C.P.C. barred maintainability of subsequent suit.
Maulvi Sirajul Haq, Advocate Supreme Court and M. Afzal Siddiqui, Advocate‑on‑Record for Petitioner.
Nemo for Respondent.
Date of hearing: 22nd January, 1986.
By this petition leave is sought on the ground that the revision petition is discretionary relief and is not available to a person who comes to the Court with unclean hands. Respondent contumaciously withheld information from the learned trial Court about the dismissal of the previous suit and as such he could not avail of the fact that rejection of the plaint cannot be ordered on averments not embodied in the plaint itself; that respondent admitted dismissal of his previous suit in the grounds of appeal before the learned District Judge as the appeal was in continuation of the suit and as such averments in the memorandum of appeal can be looked into for purposes of Order VII, rule 11(d), C.P.C. and this fact was also admitted by the petitioner in the Civil Revision filed in the High Court; that the previous suit was filed on the same cause of action which was dismissed in default under Order IX, rule 8 which bars maintainability of the subsequent suit under Order IX, rule 9, C.P.C., and, therefore, the learned Courts below were justified in law in rejecting the plaint.
2. The above points arise out of the following facts. The plaintiff/ respondent filed an application for issuance of temporary injunction restraining the petitioner from demolishing the house of the plaintiff and converting it into a lane, till the decision of the case. The petitioner contested the application and stated that the plaintiff had earlier filed a suit which had been dismissed under Order IX, rule 8, C.P.C., and therefore, the suit of the plaintiff was not maintainable. The learned Civil Judge rejected the application of the plaintiff and returned his plaint under Order VII, rule 11, C.P.C. as barred by Order IX, rule 9, C.P.C. Appeal filed before the District Judge was also dismissed per order, dated 7‑2‑1981. Thereafter revision petition was filed in the High Court which was allowed vide the impugned order dated 25‑5‑1983.
Substantial point raised by the learned counsel needs consideration. Leave granted. Security rupees two thousand and five hundred only. To be heard on the present record with liberty to the parties to file additional documents, if desired.
M.I. Leave granted.
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