Haji Mullah Dad v. Mir Assa Gul,
Bench: Syeda Tahira Safdar
📝 AI Summary — Plain-Language Overview
This case from the Balochistan High Court dealt with a procedural dispute about a civil suit concerning property. During the lawsuit, the defendants argued that the case should be dismissed because it was barred by the legal principle of res judicata, meaning the same issue had already been decided in another case. The trial court first examined this argument and rejected it, finding no evidence that the property dispute had previously been decided elsewhere. Later, while deciding separate applications about adding parties to the case, the same trial court reversed itself and dismissed the suit on the very same res judicata ground, this time concluding the property was the same as in another pending case. This second ruling was upheld on appeal.
The petitioners challenged both decisions, arguing that once a court decides a legal question, it cannot revisit and reverse that same decision later in the same proceedings. The High Court agreed. It held that since the trial court had already ruled on the res judicata issue and found against it, the court lost jurisdiction to reconsider and decide the same question differently afterward. The second order was therefore not just wrong, but legally invalid for lack of jurisdiction. The appellate court had failed to notice this problem even though it was raised.
As a result, the High Court set aside both the trial court's and appellate court's orders, restored the original suit, and sent it back for a proper hearing on its merits. The case highlights an important principle: courts cannot reopen and change their own final rulings on the same legal question within the same case.
بلوچستان ہائی کورٹ کا یہ مقدمہ جائیداد سے متعلق ایک دیوانی دعوے کے طریقہ کار سے جڑے تنازع پر مبنی ہے۔ مقدمے کی سماعت کے دوران مدعا علیہان نے یہ موقف اختیار کیا کہ دعویٰ اصولِ فیصلہ شدہ امر یعنی ”ریس جوڈیکاٹا“ کی بنا پر خارج کیا جانا چاہیے، کیونکہ یہی معاملہ پہلے کسی اور مقدمے میں طے ہو چکا ہے۔ ٹرائل کورٹ نے ابتدا میں اس دلیل کا جائزہ لیا اور اسے مسترد کر دیا، کیونکہ اس کے پاس یہ ثابت کرنے کے لیے کوئی شہادت موجود نہ تھی کہ جائیداد کا یہ تنازع پہلے کہیں اور طے پا چکا ہے۔ بعد ازاں جب اسی ٹرائل کورٹ کے سامنے فریقین کو مقدمے میں شامل کرنے سے متعلق الگ درخواستوں پر فیصلہ کرنے کا مرحلہ آیا تو عدالت نے اپنے پہلے فیصلے سے رجوع کرتے ہوئے اسی ریس جوڈیکاٹا کی بنیاد پر دعویٰ خارج کر دیا، اور اس بار یہ نتیجہ اخذ کیا کہ زیرِ بحث جائیداد وہی ہے جو ایک اور زیرِ التوا مقدمے میں شام
Generated from the full judgment text below — not a substitute for reading the actual opinion.
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.