P L D 2023 Balochistan 18
Before Rozi Khan Barrech, J
SAADAT KHAN--- Petitioner
Versus
ALI SHER and 2 others ---Respondents
Civil Revision No. 651 of 2021, decided on 9th December, 2021.
Civil Procedure Code (V of 1908) ---
----S. 11 ---Res-judicata, principle of ---Object and purpose ---Doctrine of res -judicata
generally came into play in relation to civil suits ---Said doctrine has been applied since long
in various kinds of other proceedings and situations by the superior courts ---Rule of
constructive res -judicata is engrafted in Explanation IV of S. 11 of the C.P.C. and in many
different situations also the principles not only of direct res -judicata but of constructive res -
judicata are also applied ---If by any judgement or order any matter in issue has been directly
and explicitly decided, the decision operates as res -judicata and bars the trial of an identical
issue in subsequent proceedings between the same parties ---Principle of res -judicata comes
into play when by judgment/order a decision of a particular issue was implicit in it; that is, it
must be deemed to have been necessarily decided by implication, even then the principle of
res-judicata on that issue is directly applicable ---When any matter which might and ought to
have been made a ground of defence or attack in former proceedings but was not made ,then
such a matter in the eye of law, to avoid multiplicity of litigation and to bring finality in it, is deemed to have been constructively in issue and, therefore, is taken as decided--- Object and
purpose of the principle of res -judicata is to uphold the rule of conclusiveness of judgment,
as to the points decided earlier of the fact, or law, or of fact and law, in every subsequent suit between the same parties ---Once the matter, which was the subject matter of lis, stood
determined by a competent Court, no party after that could be permitted to reopen it in
subsequent litigation--- Rule of res -judicata is brought into the statute book to bring the
litigation to an end so that the other side may not be subjected to harassment ---Once a
substantial question in dispute between the parties stands decided, once a verdict qua title of party stands given by a court of competent jurisdiction and once a precious right stands accrued to the opposite party, the plaintiff can not file a second suit ---In the present case the
petitioner filed suit in respect of the same property, which had already been claimed by the petitioner in another civil suit--- Property claimed by the petitioner in the previous suit and in
present case and the parties and cause of action were the same---Civil revision was dismissed due to the plaint being found to be barred by law, attracting the principle of res -judicata as
well as estoppel by conduct.
Province of Punjab v. Ibrahim & Sons 2000 SCMR 1172 rel.
Abdul Musawir for Petitioner.
Yahya Baloch, Deputy Prosecutor General ("DPG") for Respondents.
Date of hearing: 6th December, 2021.
JUDGMENT
ROZI KHAN BARRECH, J. ---This Civil Revision Petition is directed against the
concurrent findings of both the courts below, whereby plaint of the petitioner was rejected
under Order VII, Rule 11 read with section 11, C.P.C. by the learned Civil Judge, Dalbandin, (hereinafter "the trial court") through judgment dated 13.04.2021 and maintained by the judgment dated 30.09.2021 passed by the learned Additional District Judge, Dalbandin, (hereinafter "the appellate court").
2. Brief facts of the case are that the plaintiff/petitioner filed a suit for cancellation of
agreement dated 08.11.2018, cancellation of NOC dated 09.04.2018 and specific performance of the agreement dated 07.11.2016 before the trial court against the respondents/defendants with the following prayers: -
"a. To cancel the issuance of certificate No.01/2018/tower/ AC/DBN/787 DATED 19.04.2018 BY DEFENDANT No.3 in favour of defendant No.1 is based on Maladies which is of no legal consequences.
b. That to cancel agreement dated 08.11.2018 executed between defendants Nos.1 and 2 as illegal and against law.
c. That the defendant No.2 may be ordered to fulfill and perform all terms and
conditions of agreement dated 07.11.2016.
d. That to cancel the NOC dated 19.04.2018 which was issued by defendant No.3 to defendant No. 1.
e. That the Hon'ble court may be pleased to pass order that the annual payment/cheques may be issued to the plaintiff and to continue payments of two employees of plaintiff.
f. To cancel the order dated 16.01.2017 of defendant No.3 in which the NOC No.4052 dated 27.10.2016 was suspended and withdrawn.
g. That any other relief which deems fit may also be awarded to the plaintiff along with the costs of the suit".
3. The respondents resisted the suit being the defendants. While submitting their written
statements, they controverted the assertions contained in the plaint. During the pendency of the suit, respondent No.1 moved an application under Order VII, Rule 11, C.P.C., which was contested by the petitioner after submitting a reply of the same.
4. After hearing arguments of the learned counsel for the parties on the application
under Order VII, Rule 11, C.P.C., the learned trial court rejected the suit of the plaintiff/petitioner on 13.04.2021.
5. Being aggrieved from the judgment and decree dated 13.04.2021, the petitioner filed
an appeal under section 96, C.P.C. before the appellate court, which was dismissed on
30.09.2021. Whereafter the instant revision petition was filed.
6. I have heard the learned counsel for the parties and have gone through the available
record with their able assistance.
7. It is well- known that the doctrine of res judicata is codified in section 11 of the Code
of Civil Procedure. Section 11 generally comes into play in relation to civil suits, but apart from the codified law, the doctrine of res judicata has been applied for a long in various kinds of other proceedings and situations by the superior courts. The rule of constructive res judicata is engrafted in Explanation IV of section 11 of the C.P.C. and many different situations also the principles not only of direct res judicata but of constructive res judicata are also applied, if by any judgment or order any matter in issue has been directly and explicitly decided, the decision operates as res judicata and bars the trial of an identical issue in subsequent proceedings between the same parties. The principle of res -judicata comes into
play when by judgment/order a decision of a particular issue is implicit in it; that is, it must be deemed to have been necessarily decided by implication even then the principle of resjudicata on that issue is directly applicable. When any matter which might and ought to have been made a ground of defence or attack in former proceedings but was not so made, then such a matter in the eye of the law, to avoid multiplicity of litigation and to bring finality in it, is deemed to have been constructively in issue and, therefore, is taken as decided. The object and purpose of the principle of res - judicata are to uphold the rule of
conclusiveness of judgment, as to the points decided earlier of the fact, or law, or of fact and law, in every subsequent suit between the same parties. Once the matter, which was the subject matter of lis stood determined by a competent court, no party after that can be
permitted to reopen it in subsequent litigation. Such a rule was brought into the statute book to bring the litigation to an end so that the other side may not be subjected to harassment.
8. In this context, the Hon'ble Supreme Court in the case of Province of Punjab v.
Ibrahim, and Sons (2000 SCMR 1172), while examining the question of constructive res judicata in accordance with section 11, C.P.C. had laid down the following five principles: --
(1) The matter directly and substantially in issue iii the subsequent suit or issue must be the same matter which was directly and substantially in issue either actually or constructively in the former suit.
(2) The former suit must have been a suit between the same parties or between parties under whom they or anyone of them claim.
(3) The parties as aforesaid must have litigated under the same title in the former suit.
(4) The Court which decided the former suit must have been a Court competent to try the subsequent suit in which such issue is subsequently raised.
(5) The matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by the Court in the first suit.
9. After perusal of the record, it reveals that the petitioner filed a Civil Suit No.28 of
2018 for declaration and permanent injunction before the trial court in respect of the same
property against the present respondents/defendants. The previous suit filed by the petitioner was rejected by the trial court on 13.10.2020.
10. Now, the petitioner/plaintiff filed the instant suit in respect of the same property,
which has already been claimed by the plaintiff/ petitioner in Civil Suit No. 28 of 2018. The property claimed by the plaintiff/petitioner in the previous suit and in the present suit, the parties and cause of action are the same.
Once a substantial question in dispute between the parties stands decided, once a
verdict qua title of a party stands given by a court of competent jurisdiction and, once a precious right stands accrued to the opposite party, the plaintiff cannot file a second suit. Accordingly, the plaint being found to be barred by law, attracting the principle of res judicata as well as estoppel by conduct, has to be rejected.
Both the courts below have properly appreciated the material available on record in
accordance with the law. For what has been discussed above, this petition is hereby dismissed in limine.
MHS/21/Bal. Civil Revision dismisseThis 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,
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