Law: Specific Relief Act, 1877

Section: 42

Law: Civil Procedure Code (V of 1908)

Section: 11

SPECIFIC RELIEF ACT, 1877 (I OF 1877)-- ----S. 42--Civil Procedure Code, (V of 1908), O.VII R. 11--Rejection of plaint--Dismissal of appeal--Cause of action--Dismissal of earlier suit for non-prosecution--Non-availability of cause of action at time of filing of earlier suit--Inherent legacy--Challenge to--Cause of action in earlier suit was qua gift deed whereunder mother of petitioner had gifted only 1/3 of her share in suit property for a religious purpose and remaining 2/3 shares were retained by her-- At time of institution of earlier suit cause of action qua 2/3 shares in legacy of late mother of petitioner was not available to her and in such a situation plaint was not hit under order CPC--Revision petition allowed.  Civil Procedure Code, 1908 (V of 1908)-- ----O. II Rr. 2--Filling of subsequent suit--A person is debarred to file a subsequent suit in respect of any claim which at time of filing of earlier suit was available to him.  JUDGMENT This civil revision petition is directed against the judgment and decree dated 16.03.2019 of the learned Additional District Judge-XIII, Peshawar, whereby the petitioner’s appeal against the order/judgment and decree dated 26.05.2016 of the learned Civil Judge-XV, Peshawar has been dismissed. 2. Brief facts of the case are that the petitioner filed a suit against the respondents for a decree declaring her entitled to inherent the legacy of her late mother Mst. Saeeda Begum to the extent of her sharai share therein. The respondents, on appearance, moved an application for rejection of the plaint on the ground of its being hit by the provisions of Order II Rule 2, CPC. Ibid application was allowed by the learned trial Court on 16.05.2016 with which the learned appellate Court has concurred, hence the instant revision petition. 3. Arguments heard and appended record gone through. 4. Perusal of the case record would show that though the earlier suit filed by the petitioner was dismissed for non¬prosecution on 28.04.2007 which order is still in the field and as per Order IX Rule 9, CPC, no fresh…

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