2010 Y L R 1933
[Quetta]
Before Mrs. Syeda Tahira Safdar, J
Haji MULLAH DAD KARIM and others ---Petitioners
Versus
Mir ASSA GUL and 22 others ---Respondents
Civil Revision No. 321 of 2006, decided on 7th June, 2010.
Civil Procedure Code (V of 1908) ---
----Ss. 11 & 115 ---Res judicata ---During pendency of suit filed by the plaintiffs,
defendants filed application under S.11, C.P.C. which was ac cepted by the Trial Court
and Appellate Court and suit was dismissed on ground of res judicata --Validity --- Point in
respect of maintainability of suit being hit by S.11, C.P.C., was already decided by the
Trial Court, recording findings in negative --Same court thereafter had no jurisdiction to
again entertain the same question and take altogether a different view ---Second order of
the Trial Court was not only erroneous, but illegal being made without jurisdiction --
Appellate Court did not consider said fact , which was specifically agitated before the
Appellate Court ---Both the courts had made an error which was required to be rectified ---
Orders of the courts below were set aside and suit stood restored and was remanded to the
Trial Court to conduct proceedin gs in accor dance with law.
Kamran Arshad Ch. for the Petitioners.
Tahir Ali Baloch for Respondents Nos.1 to 22.
Muhammad Aamir Rana for Interveners.
Date of hearing: 18th December, 2009.
JUDGMENT
MRS. SYEDA TAHIRA SAFDAR, J. ---The petition ers being aggrieved of order dated
11-3-2006 of Qazi Pasni whereby their suit is dismissed being barred under section 11,
C.P.C., while appeal filed by them was also dismissed by Majlis -e-Shoora through order
dated 11 -8-2006 preferred present petition with prayer for setting aside of both the orders
while remanding of the case for decision on merits. It is their contention that the trial
Court once decided the question of res judicata through order dated 23 -1-2006, but while
deciding application under Order I Rule 10, C.P.C. the question of res judicata was again
decided and suit was dismissed through order dated 11 -3-2006. The appeal filed against
said order was also dismissed through order made on 11 -8-2006. Both the orders are
illegal and void. Once quest ion of res judicata is decided by the trial Court, the same
question cannot be taken twice by the Court, nor the suit can be dismissed that too
without recording of evidence.
As per record during pendency of suit, an application under section 11, C.P.C. was filed,
which was decided by the trial Court through order made on 23 -1-2006, wherein, the
learned trial Court held that as the applicants have not filed any document from which it
can be ascertained that a suit filed previously in respect of property i n dispute, in present
case, has already been decided, nor any copy of judgment is attached. The application was
dismissed being without merits. But thereafter, some other applications for impleading
parties were filed while deciding the same through order made on 11 -3-2006 the trial
court arrived to the conclusion that during course of arguments, none of the parties have
denied that in present and previous suits, the property in question was the same and that
the other suit is pending before Court of Majlis -e-Shoora Turbat, as such two suits in
respect of same disputed property are not maintainable. The trial Court while rejecting the
plaint directed the petitioners to approach the Court in previously instituted suit for
impleading them as party. Feeling agg rieved of the same they preferred appeal before
Majlis -e-Shoora, which was also dismissed through order dated 11 -8-2006.
The perusal of record reveals that the point in respect of maintainability of suit being hit
by section 11, C.P.C. was already decide d by the trial Court through order dated 23 -1-
2006 while recorded its findings in 'negative, therefore, the same Court thereafter has no
jurisdiction to again entertain the same question and take altogether a different view. The
second order of the trial C ourt dated 11 -3-2006 is not only erroneous, rather illegal being
made without jurisdiction. The learned Appellate Court did not consider this fact that
same was specifically agitated before the Appellate Court. Both the Courts made an error,
which is requi red to be rectified.
In the circumstances without going into further merits of the case, the petition is accepted,
impugned orders, dated 11 -3-2006 of Qazi Pasni and dated 11 -8-2006 of Majlis -e-Shoora
Mekran at Turbat are hereby set aside. The suit stand s restored and remanded to the trial
Court to conduct proceedings in accordance with law.
No orders as to costs.
H.B.T./75/Q Petition accepted.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,
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