Order 37 | 16 Claims of Order 37 Dismissed The Lahore High Court held that since the 16 checks were not presented to the bank and the plaintiff did not file all the 16 claims in one suit (as required under Order II, Rule 2 CPC) 2016 C L C 937






16 Claims of Order 37 Dismissed The Lahore High Court held that since the 16 checks were not presented to the bank and the plaintiff did not file all the 16 claims in one suit (as required under Order II, Rule 2 CPC). .
2016 C L C 9
 کہانی کچھ یوں ہے:

پس منظر:
مدعی (Plaintiff) نے مدعا علیہ (Defendant) کے خلاف سول مقدمے دائر کیے، جن میں ہر مقدمے میں 25,000 روپے کی وصولی کا دعویٰ کیا گیا۔ مدعی کا دعویٰ تھا کہ مدعا علیہ نے اسے 16 چیکس دیے تھے، جو 22 فروری 2000 کو جاری ہوئے تھے۔ یہ چیکس مدعی نے عدالت میں پیش کیے اور دعویٰ کیا کہ ان چیکس کی بنیاد پر اسے ادائیگی نہیں کی گئی۔

قانونی معاملہ:
مدعی نے آرڈر XXXVII سی پی سی کے تحت مقدمے دائر کیے، جو چیکس اور معاہدوں پر مبنی معاملات کے لیے ایک مخصوص، جلد فیصلہ کرنے والا طریقہ کار ہے۔ مدعی کا کہنا تھا کہ وہ ان چیکس کی بنیاد پر مدعا علیہ سے رقم وصول کرنے کا حق دار ہے۔

مدعا علیہ کا مؤقف:
مدعا علیہ نے ان چیکس کے اجرا یا ادائیگی کے معاملے کو چیلنج کیا۔ کوئی بھی ثبوت یہ ظاہر نہیں کرتا کہ چیکس بینک میں پیش کیے گئے تھے، اور قانونی طور پر جب تک چیکس بینک میں پیش نہیں کیے جاتے اور وہ مسترد نہیں ہوتے، چیکس کی بنیاد پر قانونی کارروائی شروع نہیں کی جا سکتی۔

عدالتی فیصلہ:
عدالت نے مدعی کے حق میں پہلے فیصلے کو کالعدم قرار دیا اور مدعا علیہ کے حق میں فیصلہ سنایا۔ عدالت نے کہا کہ چونکہ چیکس بینک میں پیش نہیں کیے گئے تھے اور مدعی نے تمام دعوے ایک ہی مقدمے میں جمع نہیں کیے (جو کہ آرڈر II، رول 2 سی پی سی کے تحت ضروری ہے)، اس لیے یہ مقدمات ناقابل قبول تھے۔

نتیجہ:
مدعی کے تمام مقدمات مسترد کر دیے گئے، اور عدالت نے مدعا علیہ کو بری الذمہ قرار دیا۔

اگر چیک کیش کرانے کیلئے بنک میں پیش نہ کیا گیا اور بنک سے ڈس آنر نہ ہوا تو اس چیک کی بنیاد پر دعوی دلاپانے زیر آرڈر 37 ضابطہ دیوانی دائر نہ کیا جاسکتا ہے
Plaintiff would be bound to present the cheque to the Bank and if the same was dishonourned, could file a suit under O.XXXVII, C.P.C. for cause of action had accrued against the drawer of said cheque---If cheque was not presented to the Bank for its payment, procedure provided for in O.XXXVII, C.P.C. would not be available to the plaintiff and the suit so filed would not be maintainable.

2016 C L C 937

ZAHOOR AHMAD Versus Master MUSHTAQ AHMAD
RFAs Nos.84 and 85 to 99 of 2006

Suit for recovery of money on the basis of cheque---Requirements---Procedure---Non-presentation of cheque to the Bank---Effect---Different suits for different cheques---Scope---Identical cause of action---Bar of O.II, R.2, C. P. C---Applicability---Pleadings---Scope---Plaintiff filed sixteen suits for recovery of money on the basis of sixteen cheques which were decreed by the Trial Court---Validity---Cheques in question were never presented to the bank for encashment--- Plaint, in the present case, was short in details and necessary and relevant facts were not pleaded therein---Factual matrix in which cheque(s) was/were issued (naeem)and handed over to the plaintiff was never pleaded in the plaint---Testimony of plaintiff was beyond the contents of plaint---Fact that defendant had taken loan from the plaintiff and delivered sixteen cheques was never averred in the plaint---Evidence adduced beyond pleadings would not be admissible nor any evidence could be permitted to be adduced which was at variance with the pleadings---Evidence led by the plaintiff could not be considered and had to be rejected---Trial Court had ignored material discrepancies in the evidence of plaintiff---Nothing was on record that cheques were issued by the defendant---Presumption of consideration under S.118 of Negotiable Instruments Act, 1881 was not available to the plaintiff---Disputed cheques were never dishonoured---Plaintiff was bound to present the cheques to the Bank for cause of action to accrue to him against the drawer of said cheques---If cheque was not presented to the Bank for its payment then procedure provided for in O.XXXVII, C.P.C. (naeem)would not be available to the plaintiff and the suit so filed would not be maintainable---Drawer of the cheque would be absolved from liability unless same was presented for payment---Nothing was on record that account of defendant did not have sufficient funds for honouring the amount of sixteen cheques---Plaintiff was bound to prefer all the claims before the court in one suit if cause of action was the same---Order II, R.2, C.P.C. had prohibited the splitting of claim and had enjoined unity of all claims based on the same cause of action in one suit---Alleged loan was the original transaction which had created the obligation on the part of defendant for which he allegedly gave collateral security in the shape of cheques---Obligation to repay the loan and collateral security of sixteen cheques was but one cause of action with regard to which plaintiff had to bring one suit---All the sixteen cheques were part of same transaction and had constituted one cause of action---Identical cause of action existed in all the suits---Said (naeem)suits would be hit by the provisions of O.II, R.2, C.P.C. which were barred and plaints of the same were rejected accordingly---Suits being not maintainable, impugned judgment and decree passed by the Trial Court were set aside---

Plaintiff would be bound to present the cheque to the Bank and if the same was dishonourned, could file a suit under O.XXXVII, C.P.C. for cause of action had accrued against the drawer of said cheque---If cheque was not presented to the Bank for its payment, procedure provided for in O.XXXVII, C.P.C. would not be available to the plaintiff and the suit so filed would not be maintainable.

O. II, R. 2---Suit to include whole claim---Scope and object---Order II, R.2, C.P.C. had prohibited the splitting of claim and had enjoined unity of all claims based on the same cause of action in one suit---Object of O.II, R.2, C.P.C. was to prevent further litigation between the same parties over the same cause of action.

 
O. II, R. 2---Cause of action---Meaning.

Pleadings----Evidence adduced beyond pleadings would not be admissible nor any evidence could be permitted to be adduced which was at variance with the pleadings.

JUDGMENT
.--- This judgment shall dispose of RFA No.84 of 2006 as well, as fifteen other connected appeals bearing RFA. No.85 to RFA No.99 of 2006 on account of similarity of identical questions of fact and law involved in these appeals as also the fact that the parties in all the cases are the same.

 

2.         Brief facts of the case are that the respondent-plaintiff filed sixteen (16) suits (suit No.8/1 to suit No.23/1) seeking recovery of Rs.25,000/- in each suit against the appellant-defendant under the provisions of Order XXXVII of the Code of Civil Procedure, 1908 (C.P.C.) on the basis of sixteen cheques dated 22.02.2000. The case of the respondent-(naeem)plaintiff as emerging from the evidence of his witnesses (PW1 to PW3) (minus the inconsistencies in their evidence) can be summarized as follows. The appellant-defendant was a friend of respondent-plaintiff who borrowed. Rs.900,000/- from him as loan. The said amount was given by the respondent-plaintiff to the appellant-defendant on 18.02.2000 in the presence of witnesses in lieu whereof the appellant-defendant delivered sixteen (16) cheques of Rs.25,000/- each. On 22.02.2000, the appellant-defendant failed to repay the amount of the loan to the respondent-plaintiff resulting in filing of the suits. For the completeness of facts, it may be stated that the suit was earlier decreed on 07.03.2000 on the statement made allegedly by the counsel of the appellant-defendant whereafter the appellant-defendant filed an application for setting aside of the decree on the ground of fraud. The said application was contested by respondent-plaintiff whereafter the trial court framed issues and recorded the evidence of both the parties. The said application was finally dismissed on 19.01.2004. Feeling aggrieved the appellant-defendant filed a revision petition before this Court which was decided on the conceding statement of respondent-plaintiff and consequently decree dated 07.03.2000 was set aside whereafter the trial court received the written statement of the appellant-defendant and framed the following issues:

 

1.         Whether the plaintiff is entitled to get decree, recovery of Rs.25,000/- on the basis of bank cheque dated 22-02-2000 for reasons mentioned in the plaint? OPP

 

2.         Whether the plaintiff prior to this suit had filed recovery suit in which he has relinquished this claim of Rs.25,000/-. Now he is barred to sue against the defendant U/O II, rule 2, C.P.C.? OPD

 

3.         Whether this Court lacks territorial jurisdiction to hear the suit, if so what is its legal effects? OPD

 

4.         Whether the plaintiff only to avoid court fee have filed sixteen suit of the same nature, whereas he can claim all his relief by filing one recovery suit, if so what is its effects? OPD

 

5.         Relief.

 

3.         Issue No.3 was treated as preliminary issue and after recording of evidence of the parties, it was decided in favour of respondent-plaintiff on 30.04.2004 in all the suits. The respondent-plaintiff besides examining himself as PW-2 examined Allah Bakhsh. and Muhammad Hayat as PW-3 and PW-4 (in all the suits) who were the witnesses to the transaction of loan and to the issuance of cheques and Mr. Tariq Mehmood Qureshi Advocate as PW-1 who was allegedly the counsel of appellant-defendant in the earlier round of litigation between the parties. In addition thereto, the trial court also recorded the evidence of the court witness, Muhammad Aslam Javid, Officer Grade-II, National Bank of Pakistan, City branch, Liaqatpur as CW-1 (in all the suits). The appellant-defendant appeared in the witness box as DW-1 and also produced Muhammad Raza as DW-2 (in all the suits). It may (naeem)be stated here that the evidence of the witnesses in all suits is identical. All the sixteen cheques were marked as Exh.P-1 in the suits.

 

4.         The issue wise findings are as under:

 

Issue No.1:

 

5.         The plaint of the suit consist of five paragraphs out of which only two paragraphs pertain to facts and are reproduced hereunder:---

 

            It is clear that plaint is woefully short in details and that the necessary and relevant facts were not pleaded therein. The factual matrix in which the cheque(s) was/were issued by the appellant-defendant and hand over to the respondent-plaintiff was never pleaded in the plaint. The claim raised in the suit was in respect of cheque No.030722 dated 22.02.2000 for Rs,25,000/-.

 

6.         The respondent-plaintiff himself appeared as PW-2 and stated in examination-in-chief that the appellant-defendant had taken a loan of Rs.400,000/- from him in the presence of PW-3 and PW-4 on 22.08.2000 and delivered 16 cheques for Rs.25,000/- each and that the transaction in respect of the loan was concluded at his residence and that the appellant-defendant signed and thumb marked the cheques before giving it to him. He admitted that the cheques in question were never presented for encashment with the bank. PW-3, who was the paternal cousin of the respondent-plaintiff, in his testimony stated that the appellant-defendant had signed thrice on each cheque. PW-4, who was the real son of the respondent-plaintiff, also corroborated the stance of his father in his evidence. The appellant-defendant himself appeared in evidence as DW-1 and categorically denied that he ever took loan from the respondent-plaintiff and gave cheques in question. He also denied his signatures on the cheques.

 

7.         After going through the record, it becomes obvious that the testimony of the respondent-plaintiff traveled beyond the contents of the plaint. The fact that the appellant-defendant had taken a loan of Rs.400,000/- from the respondent-plaintiff and delivered 16 cheques for Rs.25,000/- each was never averred in the plaint. The only claim made in the plaint was with regard to the loan of Rs.25,000/- secured through delivery of a cheque of the similar amount. It is (naeem)well settled principle of law that evidence adduced beyond the pleadings would not be admissible nor any evidence can be permitted to be adduced which is at variance with the pleadings. Accordingly, the evidence led by the respondent-plaintiff which is inconsistent with the averments of the pleadings cannot be considered and has to be rejected.

 

8.         The judgment of the trial court shows that in finding in favour of the respondent-plaintiff, reliance was placed upon the statements of witnesses which according to the trial court remained consistent. The trial court also relied upon the statement of the learned counsel of the appellant-defendant (PW-1) made in the earlier round of litigation to decide issue No.1 in favour of the respondent-plaintiff. The trial court ignored the material discrepancies in the oral evidence of the witnesses of the respondent-plaintiff and the documentary evidence in that it was stated by the respondent-plaintiff that the cheques were not only signed but were also thumb marked by the appellant-defendant but the cheques produced in evidence (Exh.P-1) did not show they were thumb marked. Similarly, the statement of PW-3 that each cheque was signed three times by the appellant-plaintiff also proved not to be correct as the cheques only contained one signature. The relationship of PW-3 (paternal cousin) and PW-4 (son) with the respondent-plaintiff cannot be ignored as they were interested witnesses. The trial court also erred in unnecessarily relying upon the testimony of PW-1, the previous counsel of the appellant-defendant, when the matter had been settled by this Court in Revision Petition No.192 of 2004 and the decree previously passed was set aside by mutual consent of the parties.

 

9.         In view of the discrepancies in the depositions of PW-2 and PW-3 regarding the number of signatures and thumb marking on the cheques, it cannot be said that the cheques were proved to have been issued by the appellant-defendant. In addition thereto, the appellant-defendant categorically denied having issued the cheques. The presumption of consideration under section 118 of the Negotiable Instruments Act, 1881 (the Negotiable Instruments Act) was, therefore, not available to the respondent-plaintiff.

 

10.       Another crucial fact that escaped the attention of the trial court was the non-presentment of the sixteen cheques to the bank by the respondent-plaintiff for their encashment. It was admitted by the respondent-plaintiff in evidence that the cheques in question were never presented to the concerned branch of the bank. As such, the cheques were never dishonoured. For filing of a suit under Order XXXVII, C.P.C. on the basis of a cheque, it is necessary for the plaintiff to present the cheque to the bank for its dishonour in order for cause of action to accrue to him against the drawer of the cheque. If a cheque is not presented to the bank for its payment, the procedure provided for in Order XXXVII, C.P.C. shall not be available to a plaintiff and the suit so filed shall not be maintainable. The reason is not hard to fathom as in the absence of presentment of the cheque before the bank, it shall remain at best a piece of evidence corroborating the original loan transaction.

 

11.       The above view is also supported by the provisions of Negotiable Instruments Act. Section 6 thereof defines "cheque" as a bill of exchange drawn on a specified banker and not expressed to be payable otherwise than on demand. Similarly, section 5 defines "Bill of Exchange" as an instrument in writing containing an unconditional order, signed by the maker, directing a certain person to pay on demand or at a fixed or determinable future time a certain sum of money only to, or to the order of, a certain person or to the bearer of the instrument. For the purposes of adjudication of the issue involved in this case section 30 of the Negotiable Instruments Act is also relevant, which reads as under:

           

Liability of drawer:-- (1) (a) The drawer of a bill of exchange by drawing it, engages that on due presentment it shall be accepted and paid according to its tenor, and that if it be dishonoured, he will compensate the holder or any endorser who is compelled to pay it, and

 

(b)        the drawer of a cheque by drawing it, engages that in the case of dishonour by the drawee he will compensate the holder:

           

Provided that clue notice of dishonour of the bill or cheque has been given to or received by the drawer as hereinafter provided.

 

(2)        The drawee of a bill of exchange is not liable thereon until acceptance in the manner provided by this Act.

           

Chapter 5 of the Negotiable Instruments Act deals with presentment of negotiable instruments and lays down the consequences for failure in some instances. Sections 62, 64, 67, 68 and 69 deal with the presentment of promissory notes while Sections 61, 64, 68 and 69 deal with bills of exchange. Sections 61, 68, 72 and 73, however, deal specifically with cheques and are relevant for the purpose of resolution of the issue involved in this case. Section 68 deals with all negotiable instruments (promissory note, bill of exchange and cheque) and stipulates that where these are made, drawn or accepted payable at a specified place and not elsewhere, they must, in order to charge any party thereto, be presented for payment at that place. It, therefore, follows that except for presentment in the manner provided for in section 68, the party liable on the promissory note, bill of exchange and cheque shall not be so liable. Section 69 deals with a promissory note and a bill of exchange of a certain kind, namely payable at a specified place and lays down that if the rule is not complied with, the maker or the drawer, as the case may be, will be discharged. Section 72 deals specifically with the cheque and provides that a cheque must be presented at the bank upon which it is drawn within a certain time and further provides the consequence of non-presentment to be to discharge the drawer. Section 73 deals with the cheque and defines the time of presentment, and provides for the consequence, namely discharge of all the parties thereto except the drawer.

 

12.       The various provisions of the Negotiable Instruments Act dealing with presentment clearly bring out the fact that unless a cheque is presented for payment, the drawer of the cheque will be absolved from liability. In other words, the presentment of a cheque is a condition precedent in order for a payee to charge the drawer/maker of a cheque. It is thus evident that for filing of a suit under Order XXXVII, C.P.C. based on a cheque, it is necessary to present the said cheque to the bank. Admittedly, the 16 cheques allegedly given by the appellant-defendant were not presented for payment. The suits under Order XXXVII, C.P.C., therefore, were not maintainable before the Additional District Judge. It may again be emphasized that the tenor of the plaint showed that the respondent-plaintiff had relied solely upon the cheques to agitate his cause of action against the appellant-defendant.

 

13.       The Additional District Judge also summoned the Manager of National Bank of Pakistan, Liaqatpur branch as a court witness for bringing the record of the account but the summons wrongly mentioned the account number to be 2229 instead of 2292. As a result, the bank's official did not bring the record of the, case. In the circumstances, it was not proved in evidence whether the account of the appellant-defendant had sufficient funds for honouring the amounts of the 16 cheques.

 

14.       In view of what has been discussed above, issue No.1 is decided against the respondent-plaintiff.

 

Issues No.2:

 

15.       Before proceeding to decide this issue, it may be stated that the trial court did not give any findings on issue No.2. This should, however, pose no problem as this Court has already come to the conclusion that the suits were incompetently filed by the respondent-plaintiff. It was stated by the respondent-plaintiff in evidence that he gave an amount of Rs.400,000/- in lump sum to the appellant-defendant as loan and in turn received 16 cheques as security for repayment of the said loan. The learned counsel for the appellant-defendant contended that the respondent-plaintiff ought to have filed one suit seeking recovery of Rs.400,000/- instead of filing 16 recovery suits and that the subsequent suits were hit by the provisions of Order II, Rule 2, C.P.C. Order II, Rule 2, C.P.C. stipulates that if the cause of action is the same, the plaintiff has to prefer all the claims arising thereunder before the court in one suit. It, therefore, prohibits splitting of claim and enjoins unity of all claims based on the same cause of action in one suit. The object appears to prevent further litigation between the same parties over the same cause of action and this object is very much apparent from the language of Rule 1 which states that "Every suit shall as far as practicable be framed so as to afford ground for final decision upon the subjects in dispute and to prevent further litigation concerning them." The term 'cause of action' in the context of Order II, Rule 2, C.P.C. has often been explained as the facts which give occasion to and form the foundation of the suit. The Privy Council in a judgment reported as Muhammad Khalil Khan and others v. Mahbub Ali Mian and others PLD 1948 PC 131 has defined "cause of action" as every fact which will be necessary for the plaintiff to prove, if traversed, in order to support his right to judgment. In Ranbir Singh v. Dalbir Singh and Ors. decided on 18th of July, 2012 by the Delhi High Court, the rationale of Order II, Rule 2, C.P.C. was explained in the following terms

           

A plain reading of Order II, Rule 2 shows that mandate of law is that when a cause accrues, all actions which are required to be taken based on the said cause have to be included in one proceeding unless leave of the court is sought, and obtained, under Order II, Rule 2 of the Code of Civil Procedure. The policy of law behind this rule is that it is in the interest of the State and the citizens that litigation is brought to an end at the earliest and that no person is vexed twice for the same cause.

           

In the context of the definitions of 'cause of action' given above, it is necessary to see whether the suits filed by the respondent-plaintiff originated out of the same cause of action or whether separate cheques provided separate causes to the respondent-plaintiff. In this context, the Explanation to Order II, Rule 2, C.P.C. is quite relevant which reads as under

           

Explanation.-- For the purposes of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action.

 

            The explanation to Order II, Rule 2, C.P.C. makes an obligation and a collateral security for its performance one cause of action for the purposes of the said rule. Similarly, the expression successive claims arising under the same obligation can be best understood with regard to the illustration provided in the said rule which shows that if rent has become due for the years 1905, 1906 and 1907, the landlord can bring only one suit for recovery of the arrears of the entire rent and not for a particular year and if he does so he shall subsequently be precluded from suing for the rent due under the other years.

 

16.       In the facts of the present case, the alleged loan of Rs.400,000/- was the original transaction which created the obligation on the part of the appellant-defendant for which he allegedly gave the collateral security in the shape of 16 cheques. There should thus remain no doubt that the obligation to repay the amount of Rs.400,000/- and the collateral security of 16 cheques was but one cause of action in respect of which the respondent-plaintiff had to bring one suit.

 

17.       The following observations of the .Hon'ble Supreme Court in Abdul Hakim and 2 others v. Saadullah Khan and 2 others PLD 1970 SC 63 with reference to Order II, Rule 2, C.P.C. are quite apposite and relevant to the facts of the present case.

           

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 defendant complained against in the two suits, must have arisen in substance out the same transaction…. 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 constituting 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 grievance caused to him by the infringement of his rights by the defendant in the course of the same transaction.....

 

            The test propounded by the Hon'ble Supreme Court and principles laid down in the above judgment when applied to the facts of the present case clearly bring forth the fact that all the 16 cheques were part of the same transaction (the alleged loan of Rs.400,000/-) and thus constituted one cause of action. As the plea of bar under Order II, Rule 2, C.P.C. defeats, what otherwise may be legitimate claim of a party, this Court has carefully gone through the contents of all the suits/plaints to ascertain the claims made by the respondent-plaintiff and found that there is complete identity of cause of action in all the suits as also the defence raised by the appellant-defendant. Similarly, the evidence led by the parties is identical in all respects as also the judgments passed in all the suits. Indeed it is difficult to discern even slightest of deviation in the claim made and defence raised by the parties in all the suits.

 

18.       Order II, Rule 2, C.P.C. states that where a plaintiff omits to sue in respect of any portion of his claim, he shall not afterwards sue in respect of the portion so omitted. In the present case, all the sixteen suits were filed on the same day i.e. 26.02.2000. However, no difficulty should arise in view of the simultaneous filing of the suits as each suit is numbered and the ones which bear the later numbers will be taken to have been filed afterwards. In Mahadulal and another v. Chironji Lal and others AIR 1963 MP 51, it was held that

 

Where two suits are instituted on the same day, in the absence of anything to prove otherwise, the numbers assigned to the suits must determine which is the previously instituted suit. The number of the present suit is 4 while that of the other is 5. In that the bar of splitting of claims could apply to the other suit, but not to the present one.

 

19.       In view of the above, suits bearing numbers 9/1 to 23/1 of 2000 shall be deemed to have been filed after suit No.8/1 of 2000 and consequently shall be hit by the provisions of Order II, Rule 2, C.P.C. Issue No.2 is accordingly decided in favour of the appellant-defendant and it is held that suits Nos.9/1 to 23/1 are barred in terms of Order II, Rule 2, C.P.C. and the plaints in the said suits are accordingly rejected.

 

Issue No.4

 

20.       From the resume of facts given above, it is clear that the respondent-plaintiff filed sixteen suits in order to avoid payment of court fee. This issue is accordingly decided in favour of the appellant-defendant.

 

Issue No.3

 

21.       This issue was treated as a preliminary issue by the trial court and decided in favour of the respondent-plaintiff. The learned counsel for the appellant-defendant did not address any arguments on this issue which is accordingly decided in favour of the respondent-plaintiff.

 

Issue No.5

 

22.       In view of the findings on the issues, this appeal is allowed judgment and decree dated 02.12.2005 is set-aside and suit (suit No.8/1 of 2000) is dismissed. It is further held that suits Nos.9/1 to 23/1 of 2000 were hit by Order II, Rule 2, C.P.C. and their plaints are accordingly rejected.
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