PLJ 2025 Quetta 28
[Sibi Bench]
Present : GUL HASSAN TAREEN , J.
Mst. SAKINA--Petitioner
versus
NOOR MUHAMMAD and 2 others --Respondents
C.R.P. No. (s) 48 of 2022, decided on 12.4.2023.
Illegal Dispossession Act, 2005 (XI of 2005) --
----Ss. 3 & 4--Petition for illegal dispossession --Accepted --Application for compliance --
Accepted --Possession of suit land was restored --Impugned judgment was challenged-- Petitioner
also filed a suit for declaration, cancellation of mutation entries and perpetual injunction--The
petitioner instituted her subsequent suit after decision of Trial Court as well as of Appellate
Court --When she instituted her subsequent suit, issue of genuineness of impugned mutation entry
was concurrently decided in affirmative by Trial Court as well as by Appellate Court in favour of
respondent --‘Resjudicata’ is pure question of law and subsequent suit of petitioner was barred by
Section 11, Code --Petition dismissed.
[P. 32 & 33] A & D
Civil Procedure Code, 1908 (V of 1908) --
----S. 11--Principle of res -judicata --Upheld by appellate Court --The Code, not merely bars trial
of a subsequent suit rather it also bars adjudication of an issue finally heard and decided by a competent Court of law between same parties, on same subject matter and claiming under same title. [P. 32] B
Words & Phrases --
----Try --The term ‘try’ means trial of a suit or an issue through recording of evidence --The
Black’s Law Dictionary (Seventh Edition) defines terms ‘trial’ and ‘try’ as under:
‘Trial --A formal judicial examination of evidence and determination of legal claims in an
adversary proceeding.’
‘Try--To examine judicially; to examine and resolve (a dispute) by means of a trial.’
[P. 32] C
Mr. Amjad Hussain Khosa, Advocate for Petitioner.
Mr. Ahsan Rafiq Rana, Advocate & Mr. Muhammad Aslam Jamali , Assistant Advocate General
for Respondent Nos. 2 & 3.
Date of hearing: 12.4.2023.
JUDGMENT
This civil revision petition, filed under Section 115, the Civil Procedure Code, 1908 (‘Code’), is
directed from the order and decree dated 27 December, 2021 passed by the Court of Civil Judge, Sohbat Pur (‘Trial Court’) and judgment and decree dated 24 June, 2022, passed by the Court of District Judge, Jaffarabad at Dera Allah Yar (‘Appellate Court’), whereby, civil suit instituted by the petitioner was concurrently dismissed.
2. Briefly, facts of the case are that, on 16 March, 2021, the petitioner instituted a Civil Suit
No. 10/2021 for declaration, cancellation of mutation entries and perpetual injunction with the
averments that husband of petitioner namely Shah Nawaz (late) was the recorded owner of land bearing survey No. 155, measuring 16 acres situated at Mouza Nouzband, Tehsil and District Sohbat Pur (‘suit land’). After death of her husband, Dad Muhammad and others illegally dispossessed the petitioner from the suit land. She filed a petition under sections 3 and 4, the Illegal dispossession Act, 2005 (‘Act’) before the Court of Sessions Judge, Dera Allah Yar, which was accepted vide judgment dated 31 May, 2008. The said Dad Muhammad and others
impugned judgment before this Court, which was dismissed vide judgment dated 19 July, 2013 and the same order was also upheld by the Supreme Court of Pakistan vide order dated 18
October, 2016. The petitioner filed an application for compliance of the order of the Sessions Judge, Dera Allah Yar, which was accepted and the possession of the suit land was restored to her. After getting possession, Respondent No. 1 (‘respondent’) instituted a civil suit against the petitioner and others for declaration and recovery of possession of the suit land, which was contested by the petitioner by pleading that respondent has fraudulently transferred mutation entry of the suit land to his name with the connivance of the Revenue Authority. Finally, the petitioner prayed declaration that her husband was the recorded owner of the suit land and declaration of ownership, declaration that mutation of the suit land in the name of respondent is illegal, cancellation of such mutation entry and perpetual injunction.
3. The respondent filed his written statement and also made an application under order VII
Rule 11, the Code. The Trial Court framed following issue:
‘Whether suit of plaintiff is maintainable under Section 11 CPC?’
4. After hearing both sides, the Trial Court held that suit of the petitioner is barred by
Resjudicata vide impugned order dated 27 December, 2021, which was affirmed on appeal by the Appellate Court vide judgment and decree dated 24 June, 2022.
5. Mr. Amjad Hussain Khosa Advocate, representing petitioner, states that suit instituted by
the petitioner was not barred by the doctrine of resjudicata. In alternate, he states that the question of resjudicata is a mixed question of law and fact, which should not have decided by the Court below without recording of evidence. Finally, he requests for setting- aside of impugned
order and judgment and remand of the case to the Trial Court for decision of suit on merits after
recording of evidence.
6. Mr. Ahsan Rafique Rana Advocate, representing respondent states that in this case, the
issue of resjudicata is a pure question of law, which does not require prove through recording of evidence. He states that the former judgments of the Trial Court as well as of the Appellate Court between the same parties do not require further proof; therefore, the Trial Court as well as the Appellate Court have rightly dismissed the suit of the petitioner. Finally, he states that there are concurrent findings in favour of the respondent and petitioner failed to point out any material illegality and irregularity in the impugned order/judgment; therefore, the petition should be dismissed.
7. Heard learned counsels for the parties at length and gone through the record.
8. Prior to the suit of petitioner, on 15 June, 2017, the respondent instituted a Civil Suit No.
03/2020 against the petitioners and others before the Court of Civil Judge, Dera Allah Yar for declaration, possession and perpetual injunction in respect of land bearing survey No. 155, measuring 16 acres, Mouza Nouzband (‘suit land’). The suit was contested by the petitioner and others. In such suit, the petitioner in her written statement contended that the mutation in the name of the respondent, in respect of the suit land, is result of fraud. In the former suit of respondent besides other issues, the Court also framed following issues:
i. Whether the plaintiff is lawful recorded owner of the land bearing survey No. 155,
situated at Deh Nouzband Tehsil Sohbat Pur?
ii. Whether the defendants have left the suit land bearing survey No. 155 in favour of the
Government and retained the survey No. 154 situated at Deh Nouzband and survey No. 155 was granted to the plaintiff by the Government of Balochistan?
9. In such former suit, the respondent as well as the petitioner produced their respective
evidences. The Trial Court decided afore -mentioned reproduced issues in favour of the
respondent and finally held that respondent is recorded owner of the suit land and petitioner’s
husband had left the suit land in favour of the Government and retained survey No. 154, vide judgment and decree dated 22 December, 2020 which was also affirmed on appeal by the Court of Additional District Judge, Dera Allah Yar in Civil Appeal No. 02/2021, vide judgment and decree dated 17 March, 2021. The concurrent judgments were also affirmed on civil revision petition, by this Court, vide judgment dated 12 April, 2023.
10. In her subsequent suit, the petitioner has impugned the genuineness of mutation of the
respondent and claimed that her husband was the recorded owner of the suit land. The issue
raised by the petitioner in her suit was, directly and substantially and collaterally and incidentally, in issue in the former civil suit of the respondent. The issue of genuineness of the
impugned mutation and resumption of suit land by the Government and its subsequent transfer in
the name of the respondent was finally heard and decided by a competent Court of law vide
judgment and decree dated 22 December, 2020. The petitioner instituted her subsequent suit after
decision of the Trial Court as well as of Appellate Court. When she instituted her subsequent
suit, the issue of genuineness of the impugned mutation entry was concurrently decided in affirmative by the Trial Court as well as by the Appellate Court in favour of the respondent.
11. Section 11, the Code, not merely bars the trial of a subsequent suit rather it also bars
adjudication of an issue finally heard and decided by a competent Court of law between same
parties, on same subject matter and claiming under the same title. The opening words of the text
of Section 11, the Code reads as under:
‘No Court shall try any suit or issue ……’
The term ‘try’ means trial of a suit or an issue through recording of evidence. The Black’s Law
Dictionary (Seventh Edition) defines terms ‘trial’ and ‘try’ as under:
‘Trial. A formal judicial examination of evidence and determination of legal claims in an
adversary proceeding.’
‘Try. To examine judicially; to examine and resolve (a dispute) by means of a trial.’
Section 11, the Code prevents, even the trial of a subsequent suit or an issue when same suit or
issue was already decided. Apart from Section 11, the Code, Article 54 the Qanoon- e-Shahadat
Order -X, 1984 (‘Q.S.O’) is relevant which reads:
“The existence of any judgment, order or decree which by law prevents any Court from
taking cognizance of a suit or holding a trial, is a relevant fact when the question is
whether such Court ought to take cognizance of such suit or to hold such trial.”
12. The term ‘law’ employed in Article 54, Q.S.O means law of resjudicata (for civil cases).
Any judgment which prevents any Court from taking cognizance of a suit or holding a trial is a relevant fact under afore- reproduced provision of law. The Black’s Law Dictionary defines term
cognizance as under:
‘Cognizance. 1. The right and power to try and determine cases; 2. The taking of judicial
or authoritative notice; 3. Acknowledgment or admission of an alleged fact; esp. (hist), acknowledgment of a fine.’
Taking cognizance of a suit means to try a civil suit i.e . summoning defendant, framing of issues
and recording of evidence; therefore, the existence of any such judgment which prevents trial of
a subsequent suit is relevant and binding in a subsequent civil suit as resjudicata. Production of
certified copies of pleadings and former judgment are sufficient proof of existence of former
judgment of a competent Court of law; therefore, principle of resjudicata not only bars institution of a subsequent suit rather prevents the trial of a subsequent suit through recording of evidence.
If such practice is allowed to prevail then, the principle/doctrine of resjudicata would lose its
legal sanctity/significance. The principle of resjudicata is based on public policy that it is in the interest of State that there should be an end of litigation and no one be vexed twice for the same
cause. If it is declared that resjudicata is a mixed question of law and fact, then there would be no
end of subsequent litigations. Mere production of certified copies of former plaint and judgment, would be sufficient for prove of issue of resjudicata as, both being public documents [Article
85(1)(iii) and (3) Q.S.O], contents thereof, may be proved by production certified copies thereof,
per Article 88, the Q.S.O; as such, the contention of the petitioner’s counsel is without legal force and substance. The Lahore High Court in the case reported as Khalid Begum v. Messrs.
Settlers (Pvt.) Ltd. ( 1989 CLC 1718) has held as under:
“Section 11 of the C.P.C. which embodies the principle of res judicata on its plain
language bars the trial of any suit or issue which has been previously’ decided between
the same parties by a Court of competent jurisdiction. Bar contained in this section is to
the trial of suit and not only to its decision, the underlying object being that no person
should be vexed twice for the same cause. If the resolution of the issue is postponed till
the end of the trial for its decision alongwith other issues, the very purpose of Section 11
shall be defeated. In Shahul Hamid v. Tahir Ali 1980 S C M R 469 this provision was
held to be mandatory and it was observed that the Court is bound to apply it despite any
agreement to the contrary between the parties. It is thus clear that the refusal of the trial Court to treat the issue of res judicata as a preliminary issue is contrary to law.”
13. The two Courts below have rightly held that ‘resjudicata’ is pure question of law and
subsequent suit of the petitioner was barred by Section 11, the Code.
14. For afore discussion, I am not inclined to interfere with the impugned order/judgment; as
such, the civil revision petition fails which is dismissed.
(J.K.) 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,
let us know.