PLJ 2024 Quetta 73
Present: G UL HASSAN TAREEN , J.
NOOR MUHAMMAD and others --Petitioners
versus
JAMAL KHAN and others --Respondents
C.R. No. 830 of 2021, decided on 13.10.2023.
Civil Procedure Code, 1908 (V of 1908) --
----O.II R. 2 --Specific Relief Act, (I of 1877), Ss. 42 & 54--Joint owner --Suit for declaration and
perpetual injunction--Dismissed due to lack of jurisdiction--Second suit for declaration, partition
and perpetual injunction--Rejected --Deficiency of Court -fee-- Constructive res -judicata --No
opportunity for producing evidence in first suit --Cause of action --Non -applicability of doctrine
of res -judicata --Challenge to --In former suit, Respondent No. 1 was non- suited on issue of
subject matter jurisdiction --In former suit, Trial Court had non- suited Respondent No. 1 on legal
point and had not decided suit on merits --In order to operate as res judicata, previous decision
must had been given after matter was heard and finally decided on merits --Order whereby,
former suit of Respondent
No. 1 was dismissed, was passed by Trial Court without affording an opportunity of evidence to
parties --Trial Court had wrongly reached at conclusion that later suit of Respondent No. 1 was
barred by doctrine of rule of res judicata--Since, Respondent No. 1’s suit was not barred by res
judicata; for that reason, question of constructive res judicata had not arisen at all --The doctrine
of res judicata would not apply in a suit for partition as, right to apply for partition was a continuing cause of action and any co- sharer can file a second suit for partition --There was no
illegality and material irregularity in impugned judgment and decree passed by Appellate Court --
Revision petition dismissed.
[Pp. 77, 78 & 79 ] A, B, C, D & E
AIR 1971 SC 664, AIR 1966 SC 133 & 2002 CLC 1620 ref.
2015 CLC 1833.
M/s. Humera Munir, Manzoor Ahmed Shah and Mubashir Hassan Shinwari , Advocates for
Petitioners.
M/s. Shams -ud-Din Achakzai & Farzana Khilji , Advocate and Mr. Shahid Baloch, Additional
Advocate General for Respondents.
Date of hearing: 6.10.2023.
J
UDGMENT
This Civil Revision Petition, filed under S. 115, the Civil Procedure Code, 1908 (‘C.P.C’) assails
a consolidated judgment and decree dated 30 November, 2021 of the learned District Judge,
Loralai (‘Appellate Court’), whereby, Civil Appeal Nos. 21/2021 and 22/2021 preferred by the
Respondent No. 1 and Respondent Nos. 2 to 5 respectively, were allowed; the order and decree dated 28 August, 2021 of the learned Sr. Civil Judge, Loralai was set aside and remanded back the case to the learned Sr. Civil Judge, Loralai for deciding the suit on merits after recording
evidence.
A brief factual background of the case may briefly be stated as under:
2. On 15 December, 2020, Respondent No. 1 instituted a Civil Suit No. 41/2020 for declaration
and perpetual injunction against petitioners and Respondent Nos.3 to 6 in the Court of learned
Sr. Civil Judge, Loralai (‘Trial Court’). He pleaded that, he alongwith the petitioners and Respondent Nos.3 to 5, is joint owner and in possession of lands described in para -2 of the
plaint. The petitioners started interference in the suit land; as such, Respondent No. 1 made an
application to the Revenue Authority for partition the suit land and to restrain the petitioners
from interference therein, but, to no avail. The petitioners also started boring in the suit land without first obtaining N.O.C from the concerned quarter. In the prayer clause, Respondent No. 1 prayed for declaration of joint ownership, partition and perpetual injunction.
3. The petitioners submitted a contesting written statement whereas; Respondent Nos.3 to 5, a
conceding written statement. On such pleadings, the Trial Court framed eight issues. Vide order and decree dated 23 April, 2021, the Trial Court dismissed the suit and observed that suit is barred by mis -joinder and non- joinder, of necessary parties; the Respondent No. 1 has no locus
standi, lack of jurisdiction under S.172, the Balochistan Land Revenue Act, 1967 (‘Act, 1967’) and deficiency of Court fee. The Respondent No. 1 did not further assail the suit’s dismissal order, which attained finality.
4. On 24 April, 2021, the Respondent No. 1 instituted a second Civil Suit against the petitioners
and Respondent Nos.2 to 6 in the Trial Court. In the later suit, Respondent No. 1 pleaded that, he alongwith the petitioners are the successors in interest of Saifullah and Muhammad Khan who were real brothers and had joint lands descried in Para No. 5 of the plaint. In 1978, the predecessors of, Respondent No. 1 and, petitioners had jointly purchased a piece of land admeasuring 57 Rods - 13 Poles bearing Survey Nos. 32, 47 and 48 from the predecessor of
Respondent Nos. 2 to 5. In 1978/79, their predecessors had given 17 Acres – 2 Rods – 0 Poles to
the District Management of Afghan Refugees for establishment of a refugee camp Muhammad Khan died in 2014 while Saifullah in 2014. Differences arose between the Respondent No. 1 and the petitioners which were referred to the arbitrators yet, the arbitrators could not make their award due to influence of the petitioners. In prayer clause, Respondent No. 1 prayed for declaration of joint ownership, partition and perpetual injunction.
5. The petitioners submitted a contesting written statement. The Trial Court framed eight issues
and vide order and decree 28 August, 2021 rejected the suit on the issue of actual res judicata,
Order II rule 2, the C.P.C and the deficiency of Court fee.
6. Respondent No. 1 and Respondent Nos.2 to 5 assailed the suit’s rejection order and decree by
filing Civil Appeal Nos.21 and 22 of 2021, before the Appellate Court. The Appellate Court vide
impugned judgment and decree allowed the appeals; set aside the suit’s rejection order and remanded back the case to the Trial Court.
7. M/s. Humera Munir and Manzoor Ahmed Shah, learned counsel for the petitioners state that
the former suit was not rejected by the Trial Court rather it was dismissed, consequently, the Respondent No. 1 ought to have challenged such dismissal order by preferring appeal and
instead of doing that, Respondent No. 1 instituted a second suit which wasn’t only barred by the
actual res judicata rather, by constructive res judicata too. They state that the relinquishment of remedy amounts to relinquishment of claim whereas; the Appellate Court has overlooked the
nature and substance of the former order of the Trial Court. They placed reliance on the
following case laws: --
Nasir Ali v. Muhammad Asghar 2022 SCMR 1954
Mrs. Zeenia Satti v. Abdul Karim Niazi and others 2021 MLD 1983
Muhammad Iqbal v. Muhammad Hussain and others, dated 29 June, 2000 in C.P. No.
1313/2018
8. M/s. Shams -ud-Din Achakzai and Farzana Khilji, learned counsel for the Respondent Nos.1 to
5 state that the substance of the order, whereby the Respondent No. 1 was non- suited, was of
rejection of suit under Order VII rule 11, the C.P.C, therefore, rule 13 of the same Order allowed
the Respondent No. 1 to institute a fresh suit. They state that since, in the former suit, evidence
was not recorded by the Trial Court, therefore, the matter in issue in the later suit was not a finally heard and decided matter; as such, the Trial Court had wrongly applied the doctrine of res
judicata while rejecting the later suit. They also state that the order whereby, the former suit of
Respondent No. 1 was rejected, was an illegal order for, issue of title was involved therein which was triable by the Trial Court as a Civil Court under S.9, the C.P.C. They referred to the
provisions of S.54 and Order XX rule 18, the C.P.C and Ss. 135(b) and 172(2)(xviii), the Act 1967. Finally, they supported the impugned judgment and decree.
9. Mr. Shahid Baloch, learned Additional Advocate General, representing Respondent No. 6
supported the contention of petitioners’ counsel.
10. Heard. Record gone through.
11. The former suit instituted by the Respondent No. 1 was dismissed by the Trial Court on the
grounds of mis -joinder and non- joinder of necessary parties; locus standi; Court fee and want of
jurisdiction. In the former suit, the Trial Court had observed that the Respondent No. 1 ought to have resorted to the Revenue Authority for partition of the suit land. In this respect, the Trial
Court had referred to the Ss.135 and 172 of the Act, 1967. In the former suit, Respondent No. 1
was non- suited on the issue of subject matter jurisdiction. Admittedly, in the former suit, the
Trial Court had non- suited the Respondent No. 1 on legal point i.e . jurisdiction etc. and had not
decided the suit on merits. For application of the doctrine of res -judicata, besides others, it is a
condition precedent that, the issues raised in the former suit should have been finally heard and decided after recording of evidence. In the former suit, since the Trial Court had not decided the
joint status of the suit land and its partition between parties thereto, hence, the issue of joint
ownership and seeking its partition in the later suit was not res judicata. In a case from Indian jurisdiction, the Supreme Court of India, in the case of Sheodan Singh v. Daryao Qunwar, reported in A.I.R 1966 Supreme Court 133, held as under:
“It is therefore urged that the two appeals arising out of suits Nos.77 and 91 had not been heard and finally decided by the High Court, and so the condition that the former suit must have been heard and finally decided was not satisfied in the present case. Reliance in this connection is placed on the well settled principle that in order that a
matter may be said to have been heard and finally decided, the decision in the former suit
must have been on merits. Where, for example, the former suit was dismissed by the trial
Court for want of jurisdiction, or for default of plaintiffs appearance, or on the ground of
non-joinder of parties or misjoinder of parties or multifariousness or on the ground that
the suit was badly failed, or on the ground of a technical mistake, or for failure on the part of the plaintiff to produce probate or letter of administration or succession
certificate when the same is required by law to entitle the plaintiff to a decree or for
failure to furnish security for costs, or on the grounds of improper valuation or for failure
to pay additional Court fee on a plaint which was undervalued or for want of cause of
action or on the ground that it is premature and the dismissal is confirmed in appeal (if any) the decision not being on the merits would not be res judicata in a subsequent suit.”
Same issue, again came under consideration in the case of Ram Gobinda Daw and others v. S.mt.
H. Bkakta Bala Dassi etc . reported in A.I.R 1971 Supreme Court 664. The Indian Supreme Court
held as under:
“This Court referred to instances where a former suit was dismissed by a trial Court for
want of jurisdiction or for default of plaintiff appearance etc., and pointed out that in
respect of such class of cases the decision not being on merits, would not be res judicata
in a subsequent suit.”
In this connection, the case of Ume Aiman and 43 others v. Muhammad Yousaf and 10 others, reported in 2002 CLC 1620, is relevant. The relevant para therefrom is reproduced hereunder:
“22. From a perusal of the abovementioned documentation/ orders passed by the various forums, I am of the opinion that the ingredients of Section 11 of the C.P.C. are not at all attracted to the facts of the matter as the parties have never litigated in any adverse capacity previously other than in R. A. No. 52 of 1974 for the first time in October, 1984 which in any event did not result in any final adjudication of their rights and obligation as the defendant’s application was dismissed on the jurisdictional point. Consequently it
cannot be said that the parties rights and obligations as regards the suit property, viz. as to who are the actual owners thereof have been determined in any forum whatsoever.”
12. It may be seen from the afore case laws that, in order to operate as res judicata, the previous decision must have been given after the matter was heard and finally decided on merits. In this case, the order dated 23 April, 2021 whereby, the former suit of Respondent No. 1 was dismissed, was passed by the Trial Court without affording an opportunity of evidence to the parties; hence, the issue of joint status of the suit land between the parties to the former suit and its partition was not decided on merits. Hence, the Trial Court had wrongly reached at the conclusion that the later suit of the Respondent No. 1 is barred by the doctrine of the rule of res judicata. Since, Respondent No. 1’s suit was not barred by the res judicata; for that reason, the question of constructive res judicata had not arisen at all.
13. Apart from what has been discussed above, the doctrine of res judicata would not apply in a
suit for partition as, right to apply for partition is a continuing cause of action and any co- sharer
can file a second suit for partition. As long as the property is not partitioned a fresh suit would be competent. Suits for declaration of right to partition differ from other suits. So long as the property is jointly held so long does a right to partition continue. Right to enforce partition is a
legal incident of a joint holding. Moreover, cause of action for such a suit is always recurring.
14. This Court in the case of Khursheed Ashraf and 3 others v. Aftab Ashraf and another ,
reported in 2015 CLC 1833 observed that a fresh suit for partition by the same plaintiff and of
the same property, is not barred by the doctrine of res judicata, as the cause of action for a suit
for partition is recurring one. The relevant paragraph therefrom is reproduced hereunder:
“27. In view of the above, it is concluded as follows: --
(a) that when a decree declaring a right to partition has not been given effect to by the
parties and the property is not partitioned according to the decree, it is competent for the parties or any of them, if they still continue to be interested in the joint property, to bring another suit for a declaration of right to a partition in case their right to partition is called in question at a
time when, by reason of limitation or otherwise, they cannot put into effect the decree first
obtained;
(b) that the suit for partition differs from other suits. So long as the property is jointly held,
so long does a right to partition to continue;
(c) that cause of action for a suit for partition is a recurring one particularly when the
disputed property is still joint amongst shareholders, when no change has been made with
regard to possession of the same and when the previous decree for partition has proved to be infructuous being not enforceable through execution proceedings;
(d) that a suit for partition is never hit by doctrine of res judicata or even by limitation as it
is a continuing cause of action;
(e) that cause of action for a suit for partition is always recurring; therefore, such a suit can
be brought even after the abatement of a previous partition suit.
The case laws cited by petitioners’ counsel are not relevant to the particular facts and circumstances of the instant case as, the question of res judicata with reference to suit for partition was not involved in the cited case laws.
For the foregoing reasons, there is no illegality and material irregularity in the impugned
judgment and decree passed by the Appellate Court; hence the instant Civil Revision Petition is
dismissed. The parties shall, however bear their own costs.
(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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