NAZIR AHMAD and others vs AKHTAR MEHMOOD and others
This matter concerns a petition for leave to appeal against an order passed by a learned Judge in Chambers of the Lahore High Court, which dismissed an application filed under Section 12(2) of the Code of Civil Procedure 1908. The petitioners challenged the High Court's application of the principle of res judicata, arguing that the doctrine was incorrectly applied where the previous judgment was specifically challenged on the grounds of fraud and misrepresentation. Furthermore, the petitioners contended that the principles of res judicata are inapplicable where the issues on merits were not previously decided, and thus, they should not have been non-suited on that basis. The Supreme Court of Pakistan, after hearing the arguments presented by the learned counsel for the parties, granted leave to appeal to consider whether the High Court erred in law by applying res judicata in these circumstances and whether the absence of a decision on merits precludes the application of such principles. The Court also ordered that the status quo be maintained pending the final adjudication of the appeal.
- Does the principle of res judicata apply when a previous judgment is challenged on the grounds of fraud and misrepresentation?
- Can the principle of res judicata be invoked if the issues on merits were not decided in the previous proceedings?
- Section 12(2), Code of Civil Procedure 1908
ORDER
' MIAN MUHAMMAD AJMAL, J.--- Leave to appeal is sought against the order of a learned Judge in Chambers of the Lahore High Court, Lahore dated 20-10-2003, whereby application under section 12(2), C.P.C. Bearing C.M.A. No,579/C of 2002 in R.S.A. No,323 of 1973, was dismissed.
2. Learned counsel for the petitioners contended that the High Court has erred in law in applying the principle of res judicata when the previous judgment was challenged on the ground of fraud and misrepresentation. He further contended that when the issues on merits were not decided, the principles of res judiciata would not apply and, as such, the petitioners could not be non-suited.
3. After hearing the learned counsel for the parties, we grant leave, inter alia, to consider the above questions. In the meanwhile, status quo be maintained.
Leave to appeal granted.