Law: Civil Procedure Code (V of 1908)

Section: 11,O.11,R.2,O.IX,Rr.8,9,O.XVII,R.2

Law: Constitution of Pakistan, 1973

Section: 185(3)

(a) Civil Procedure Code (V of 1908)--- ----O. IX, Rr.8 & 9---Constitution of Pakistan (1973), Art.185(3)---Dismissal of suit for non-prosecution---Dismissal of application for restoration of suit upheld by Appellate Court---Fresh suit regarding same subject matter by successor-in-interest of plaintiff---Trial Court decreed fresh suit, but Appellate Court dismissed same for being barred by O.IX, R.9, C.P.C.---High Court in revision decreed the suit---Validity---In view of conflict of opinion on an important question of law between Courts below, Supreme Court granted leave to appeal to examine defendant's contention and to ensure whether ratio in Juma Khan's case' 1973 SCMR 289 had been correctly applied by High Court. Black's Law Dictionary Vlth Edition (1990) page 221; Jumma Khan v. Mahmud Khan 1973 SCMR 289 and Fazal Begum v. Municipal Corporation Lahore, 1983 CLC 1643 ref. (b) Civil Procedure Code (V of 1908)--- ----S. 11, O.11, R.2, O.IX, Rr.8, 9 & O.XVII, R.2---Dismissal of first suit in default in terms of O.XVII, R.2, C.P.C.---Dismissal of application seeking restoration of first suit---Second suit on basis of recurring cause of action regarding same subject-matter---Maintainability---Plaintiff on dismissal of first suit in default of appearance could not bring fresh suit on same cause of action---Where facts on basis of which. right was claimed by plaintiff were same and infringement thereof by defendant in two suits had arisen out of same transaction, then second suit on basis of same cause of action would not be competent and would be barred by doctrine of res judicata---No fresh cause of action, in circumstances, would accrue in favour of plaintiff on every refusal of his title by defendant---Where cause of action was either distinct or recurring, then dismissal of first suit would not affect second suit---Plaintiff in fresh suit had pleaded that cause of action was recurring, which was a mixed question of law and fact liable to be decided on basis of evidence of parties---Principles. JUDGMENT MUHAMMAD NAWAZ ABBASI, J.--This appeal by leave of the Court, has been directed against the judgment, dated 31-5-2000 passed by High Court of Sindh,…

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