PLJ 2024 Quetta 172
Present : ROZI KHAN BARRECH , J.
SHAH JAN KAREEM and another --Petitioners
versus
BASHIR and 2 others --Respondents
C.R. No. (T) 22 of 2022, decided on 16.5.2023.
Civil Procedure Code, 1908 (V of 1908) --
----S. 11 & O.VII R. 11-- Specific Relief Act, (I of 1877), Ss. 39, 42 & 54--Rejection of suit --
Appeal --Dismissed --Concurrent findings --Suit for declaration, permanent injunction and
cancellation of mutation --Res -judicata --Another suit on same property was already rejected--
Appeal was withdrawn --Estoppel --Challenge to --The doctrine of res -judicata has been applied
for a long in various kinds of other proceedings and situations by superior Courts --Before filing
of instant suit, petitioners had filed Civil Suit for declaration and permanent injunction before
trial Court against same respondents in respect of same property and same was rejected --Being
aggrieved from order petitioners filed an appeal before Member Majlis -e-Shoora, and same was
withdrawn without permission to file suit afresh --Once a substantial question in dispute between
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 opposite party, plaintiff cannot file a
second suit --Plaint being found to be barred by law, attracting principle of res -judicata as well as
estoppel by conduct, has to be rejected--Revision petition dismissed. [Pp. 174, 175 & 176]
A, B & C
2000 SCMR 1172 ref.
Mr. Tanveer Ahmed , Advocate for Petitioners.
Mr. Niaz Muhammad, Advocate for Respondent No. 1.
Mr. Waleed Ahmed, State Counsel for Respondents No. 2
and 3.
Date of hearing: 4.5.2023.
JUDGMENT
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 CPC
by the learned Court of Qazi, Tump at Turbat (hereinafter “the trial Court” ) through judgment
dated 28.12.2021 and maintained by the judgment dated 09.03.2022 passed by the learned
Majlis -e-Shoora Mekran at Turbat (hereinafter “the appellate Court” ). (Both the judgments and
decrees are referred to hereinafter as “impugned judgments and decrees” )
2. Brief facts of the case are that the plaintiffs/petitioners filed a suit for declaration, permanent injunction, and cancellation of mutation entries before the trial Court against the respondents/defendants with the averment that the father of the petitioners purchased the
property bearing Khewat/Khatooni No. 96/97 from one Meer Azam Khan in the year 1986. After
the purchase of the property, the father of the petitioners constructed four boundary walls on the
said property. It has been further averred in the plaint that initially, the property in question belonged to the Chief Officer, Municipal Corporation, Turbat (Respondent No. 3), and in the month of December 2018, Respondent No. 1 fraudulently got NOC from the office of
Respondent No. 3 and got transferred the property in his name. In the month of November 2021,
Respondent No. 1 illegally started construction on the suit property, from which the father of the
petitioners became aware of the matter and served the respondents legal notices for their illegal actions on 1.12.2020. Then the father of the petitioner died on 14.12.2020. Thus, the petitioners filed the instant suit.
3. The respondents resisted the suit being the defendants. While submitting their separate 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 CPC, which was
contested by the petitioners 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 CPC, the learned trial Court rejected the suit of the petitioners on 28.12.2021.
5. Being aggrieved from the judgment and decree dated 28.12.2021, the petitioners filed an
appeal before the appellate Court, which was dismissed on 09.03.2022. 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 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 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 before filing of the instant suit, the petitioners have
filed Civil Suit No. 42 of 2021 for declaration and permanent injunction before the trial Court against the same respondents in respect of the same property and the same was rejected on 24.11.2021. Being aggrieved from the order dated 24.11.2021, the petitioners filed an appeal before learned Member Majlis -e-Shoora, Mekran at Turbat and the same was withdrawn on
01.07.2021 without permission to file the suit afresh.
10. Now, the petitioners filed the instant suit in respect of the same property, which has already
been claimed by the petitioners in Civil Suit No. 42 of 2021. The property claimed by the petitioners 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.
(Y.A.) Petition dismissedThis 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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