2020 C L C 1507
[Balochistan]
Before Abdul Hameed Baloch, J
GHULAM NABI ----Petitioner
Versus
SAIFULLAH and others ----Respondents
Civil Revision No.285 of 2016, decided on 28th November, 2019.
(a) Civil Procedure Code (V of 1908) ---
----S.11----Suit for declaration and permanent injunction---Res judicata, principle of ---
Applicability ---Defendants moved application for dismissal of suit under S.11, C.P.C. which was
accepted ---Validity ---Earlier suit with regard to same subject matter h ad been decided by the
competent Court of jurisdiction---Parties in the suit were also same ---Parties should not be vexed
twice on the matter decided earlier ---Where matter had been decided in the earlier suit between
the same parties then it could not be allowed to be reopened again---Revision was dismissed, in
circumstances.
Muhammad Saleem v. Rasheed Ahmed 2004 SCMR 1144 rel.
(b) Civil Procedure Code (V of 1908) ---
----Ss.96 & 104 & O.XLIII, R.1---Appeal ---Competence ---Where order was passed with the
direction to draw decree sheet then appeal was competent under S.96, C.P.C. and where decree
sheet had not been drawn then appeal would lie under S.104 & O.XLIII, R.1, C.P.C.
Sardar Ahmed Haleem for Petitioner.
Adnan Ejaz and Tahir Ali for Respondents.
Aslam Jamali, Assistant A.G. for Respondents.
Date of hearing: 22nd November, 2019.
JUDGMENT
ABDUL HAMEED BALOCH, J. ----This order shall dispose of Civil Revision Petition
No. 285/2016, which is directed against the order and decree dated 03.06.2016 (impugned order and decree) passed by the Qazi -II, Khuzdar ("trial court") whereby an application under
Section 11, C.P.C. filed by the respondent No.1 was accepted and the suit filed by the
petitioner/plaintiff was rejected.
2. Brief facts of the case are that the petitioner filed a "Suit for Declaration, correction of
entries, cancellation of mutation entries and Permanent Injunction" against the respondents
before the trial court. The respondents Nos. 13 to 15 on receipt of notices, filed a written statement and contested the suit on factual as well as legal objections while the respondents
Nos.1 to 12 filed an application under section 11, C.P.C. for dismissal of the suit. In rebuttal the plaintiff filed rejoinder to the application. The trial court after he aring both the parties on
application under section 11, C.P.C. and finally rejected the suit by accepting the application
vide impugned order and decree. Hence this petition.
3. Learned counsel for the petitioner stated that the trial court rejected the su it in hasty
manner without affording opportunity to produce evidence; that there is factual controversy
which cannot be decided without framing of issues and evidence; that the requirement of law is that the matter should be decided on merits and technical ities should not be hurdle in the way of
justice.
4. Counsel for respondents Nos.1 to 12 contended that the order of the trial court is well
reasoned. The law does not allow any person to vex the party twice on the same mater. He further stated that the re vision is not competent.
5. Heard. Record perused. The perusal of record reveals that the petitioner filed a suit
against the father of defendants Nos. 12 to 14 (Abdul Sattar) which was decreed on 17.07.1984 and appeal filed thereon was dismissed by the le arned Majlis -Shoora Khuzdar, whereafter father
of defendants/respondents Nos.12 to 14 filed Civil Revision Petition No.107 of 1985, which was decided on the basis of compromise arrived at between the parties vide consent order dated 09.01.1986 with the fol lowing terms:
“Today learned counsel submitted that parties have mutually settled the dispute and have
arrived at a compromise.
2. They have also filed the deed of settlement. The compromise is thus accepted.
Accordingly suit land shall be divided in two equal shares 1/2 portion of land in dispute shall continue to be exclusive property of petitioner No.1 as such claim to that extent is not pressed.
Whereas remaining half share of suit land will become property of respondents.
As a consequence, thereof claim in suit to the extent of half share of land in dispute shall
stand dismissed and decree to extent of half share of suit land shall be maintained. In the
circumstances decrees of two courts below be modified as per terms of the co mpromise."
6. After passing of referred consent order, an execution application was filed, which was
disposed of in presence of the parties. During execution proceedings it came on record that the disputed property in the revenue record is on the name of f ather of respondents Nos.1 to 12
(Maulvi Muhammad Moosa), whereafter plaintiff filed a Suit No.42 against the defendants Nos.1
to 4 before Qazi Jahlawan Khuzdar, which was decreed on 30.06.1998 and no appeal was filed.
The petitioner has constructed bounda ry wall whereupon Mst. Aysha and Araba daughter of
Maulvi Muhammad Moosa submitted an application to Deputy Commissioner Khuzdar, stating therein that Ghulam Nabi started construction in their mutated property. The DC Khuzdar demolished the boundary wall. It transpires that the old mutation numbers have been changed
with new i.e. Khata No.333 and Khasra No.3159. Thereafter the plaintiff/petitioner filed a suit
with the following prayer:
7. In rebuttal the respondents Nos.1 to 12 filed an application, whic h was accepted by the
trial court and suit filed by the petitioner was rejected being barred by section 11, C.P.C
(Resjudicata). The petitioner being aggrieved of the impugned order filed the instant revision petition.
8. Learned counsel for the respondents Nos.1 to 12 at the very outset raised objection about
the maintainability of the petition that where the appeal lies against the impugned order, the revision is not maintainable. The objection of learned counsel for the respondents Nos.1 to 12
has not force for the reasons that where the order is passed with direction to draw decree sheet,
then appeal is competent under section 96, C.P.C. and where the decree sheet has not been drawn
then appeal lie under section 104, C.P.C. and Order XLIII, Rule 1, C.P.C. It would be imperative to reproduce Section 104, C.P.C. as under:
104. Orders from which appeal lies.---(1) An appeal shall lie from the following orders,
and save as otherwise expressly provided in the body of this Code or by any law for the time
being in force, from no other orders: -
(a) [***]
(f) an order under section 35- A;
(ff) an order under section 47;]
(g) an order under section 95;
(h) an order under any of the provisions of this Code imposing a fine or directing the
arrest or detentio n in the civil prison of any person except where such arrest or detention is in
execution of a decree;
(i) any order made under rules from which an appeal is expressly allowed by rules:
[Provided that no appeal shall lie against any order specified in cl ause (f) save on the
ground that no order, or an order for the payment of a less amount, ought to have been made].
(2) No appeal shall lie from any order passed in appeal under this section.
9. From the above referred section, it transpires that the order passed by the trial court does
not fall in referred category as mentioned in Section 104, C.P.C. Now adverting to the Order
XLIII, Rule I, C.P.C. it transpires that the appeal lie where order passed which is mentioned in the referred Order and where secti on 11 is not mentioned. It would be relevant to reproduce the
Order XLIII, Rule I, C.P.C.
ORDER XLIII
APPEALS FROM ORDERS
1. An appeal shall lie from the following orders under the provisions of section 104,
namely: -
(a) an order under Rule 10 of Order V II returning a plaint to be presented to the proper
Court;
(b) an order under Rule 10 of Order VIII pronouncing judgment against a party;
(c) an order under Rule 9 of Order IX rejecting an application (in a case open to appeal)
for an order to set aside the dismissal of a suit; (d) an order under the Rule 13 of Order IX rejecting an application (in a case open to
appeal) for an order to set aside a decree passed ex parte;
(e) an order under Rule 4 of Order X pronouncing judgment against a party;
(f) an order under Rule 21 of Order XI.
(g) an order under Rule 10 of Order XVI pronouncing judgment against a party;
(h) an order under Rule 20 of Order XVI pronouncing judgment against a party;
(i) an order under Rule 34 of Order XXI on an objection t o the draft of a document or of
an endorsement;
ii) an order under Rule 62 or Rule 103 of Order XXI relating to the right title or interest
of the claimant or objector in attached property;
(j) an order under Rule 72 or Rule 92 of Order XXI setting aside or refusing to set aside a
sale;
(k) an order under Rule 9 of Order XXII refusing to set aside the abatement or dismissal
of a suit;
(l) an order under rule 10 of Order XXII giving or refusing to give leave;
(m) an order under Rule 3 of Order XXIII rec ording or refusing to record an agreement
compromise or satisfaction;
(n) an order under Rule 2 of Order XXV rejecting an application (in a case open to
appeal) for an order to set aside the dismissal of a suit;
(o) an order [under Rule 2, Rule 4 or Rule 7] of Order XXIV refusing to extend the time
for the payment of mortgage money;
(p) an order in interpleader suits under Rule 3, Rule 4 or Rule 6 of Order XXXV;
(q) an order under Rule 2, Rule 3 or Rule 6 of Order XXXVIII;
(r) an order under Rule 1, Ru le 2, Rule 4 or Rule 10 of Order XXXIX;
(s) an order under Rule 1 or Rule 4 of Order XL;
(t) an order of refusal under Rule 19 of Order XLI to readmit or under Rule 21 of Order
XLI to re -hear an appeal;
(u) an order under Rule 23 of Order XLI remanding a case where an appeal would lie
from the decree of the Appellate Court;
(v) an order made by any Court other than a High Court refusing the grant of a certificate
under Rule 6 of Order XLV;
(w) an order under Rule 4 of Order XLVII granting an application for review.
10. In view of above discussion and relevant provision of C.P.C., I came to the conclusion
that the revision is competent.
11. The record transpires that previously in respect of the same property the suit has been
decided by the competent court of jurisdiction, whereafter on the basis of compromise the same
was decided on 08.01.1986 by this court, whereafter another suit was filed by petitioner against
the respondents Nos.1 to 13 and father of respondents Nos.11 and 12 before the trial court, which
was decreed on 30.06.1998. The record farther depicts that the father of respondents Nos.13 to
15 (Abdul Sattar) filed execution application for execution of order passed by this court in Civil
Revision Petition No.107 of 1985 vide order dated 8.1.1986. Being aggrieved of the order of the
lower fora Abdul Sattar (father of respondents Nos.13 to 15) filed civil Revision Petition No.264
of 2007, which was dismissed on 20.07.2017, relevant para is reproduced as under:
"The subsequent applic ation filed by the petitioner was not competent for the reason that
there was nothing left to be implemented. The executing court at the time of deciding the application failed to consider such fact, whereas the appellate court on proper appraisal of the
record and fact came to a just a right conclusion. The learned counsel for the petitioner has not
been able to point out nay illegality or irregularity in the impugned order of the appellate court,
warranting interference".
12. It would be advantageous to r eproduce Section 11, C.P.C. as under:
11. Res judicata.--- No Court shall try suit or issue in which the matter directly and
substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the
same title, in a Court competent to try such subsequent suit or the suit in which such issue has
been subsequently raised, and has been heard and finally decided by such Court.
13. The rule of r es judicata is based on principle that parties should not vexed twice on the
matter decided earlier. Where the matter directly and substantially in issue in subsequent suit as
well as in present suit being the same the subsequent suit hit by section 11, C.P.C. and as such barred by law. Final determination the matter between the parties on merits would attract the principle of res judicata. The justice demands every suit should be decided on merits with fair opportunity to provide the parties, where once ma tter finally be concluded between the agitating
parties, it cannot open for reagitating. Where the matter is decided in the earlier suit between the same parties, cannot be allowed to reopen the matter again. The court while determining the basic issue of dispute under the principle of res judicata must deal the issues with iron had to curb the false litigation.
14. The record reveals that the instant matter has finally been determined/decided by the
court of competent jurisdiction. The matter in ear lier suit and parties are the same. The execution
proceedings have been completed. In this regard reliance is placed on the case of Muhammad
Saleem v. Rasheed Ahmed (2004 SCMR 1144), whereby the Hon'ble Supreme Court of Pakistan held as under:
4. We have heard learned counsel for the petitioners. There are concurrent findings of
fact that the issue raised by the petitioners in relation to the suit- land had been finally heard and
decided by a competent Court of law and, thus, issue raised in the subsequent suit was hit by the principle of Res judicata within the contemplation of section 11, C.P.C. On the face of the record, we are unable to find any legal infirmity, misreading or non- reading of evidence,
misconstruction of any material on record or misconception of law on the part of the High Court. In the impugned judgment, High Court has dealt with the entire aspects of the case; which are not open to an exception.
For the aforesaid facts and reasons, I find no force in this petition, as such the same being
devoid of merits is dismissed with not order as to coast.
ZC/178/Bal. Revision dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.