Law: Code Of Civil Procedure, 1908.

Section: 11, 2

Summary

The appellant challenged rejection of his civil suit under Order VII Rule 11 CPC. The dispute concerned a plot in F-11/3, Islamabad, which the appellant claimed was fraudulently transferred after a sale agreement and dishonour of a cheque for his share of the sale consideration.

The Trial Court had rejected the plaint mainly on the basis of res judicata and the appellant's earlier litigation. The High Court held that this was erroneous because:

1. The earlier suit was for specific performance of the agreement dated 21.09.2009.
2. The present suit was based on subsequent events, including alleged breach, fraudulent conduct and dishonour of the cheque.
3. The earlier suit had been dismissed for non-prosecution, and therefore there was no final adjudication on merits.
4. Consequently, the essential requirements of Section 11 CPC (res judicata) were not satisfied.
5. Order II Rule 2 CPC was also not attracted because the subsequent cause of action had not arisen or matured when the earlier suit was instituted.
6. The appeal was initially filed before the wrong forum due to a bona fide jurisdictional mistake. Since the matter remained pending there for about nine months and was subsequently returned for want of pecuniary jurisdiction, the appellant was not penalized for the resulting delay under the principle actus curiae neminem gravabit.

The appeal was therefore allowed, the order rejecting the plaint was set aside, and the civil suit was restored for decision on merits.