MUSTAFA KAMAL and others vs DAUD KHAN and others

' MUHAMMAD QAIM JAN KHAN, J.--- This petition for leave to appeal under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, is directed against judgment dated 23-4-2008, passed by a learned Single Judge of the Peshawar High Court, Peshawar, in Civil Revision No, 322 of 1998.

2. Facts of the case are that Master Khan Gul, predecessor-ininterest of the petitioners, filed a suit (Original No,771 of 1975) on 31-7-1975, for a declaration to the effect that he was owner in possession of the land described in the heading of the plaint and that the sale Mutation No,2856 dated 20-11-1967 by which the land was shown to have been transferred to respondents Nos.1 to 3 was ineffective upon the rights of the petitioners and the respondents had no right over it. In the alternative, possession was also claimed. The suit was resisted by the respondents on the ground, inter alia, that the judgment in the earlier suit by respondent No,4 for recovery of Rs,54,000 barred the instant suit on the principle of res judicata and further that the sale of land was an independent transaction for consideration. The suit was dismissed by the trial Court on 3-9-1995 on merits against the plaintiffs-petitioners. However, the plea of res judicata was rejected. The appeal of the present petitioner was rejected by the District Judge on 13-3-1998. The revision petition filed in the Peshawar High Court, Peshawar against the said judgment also met the same fate vide judgment dated 28-9-1998. They took the matter to this Court and this august Court by its judgment dated 3- 10-2003 accepted the plea' of the petitioners on the question of res judicata, set aside the judgment of the High Court and remanded the case back to the High Court for deciding the revision petition on merits in the light of the observations made in the judgment. After remand, Revision Petition No,322 of 1998 was dismissed by the Peshawar High Court on 23-4-2008, on merits; hence this petition.

3. Learned counsel for the petitioners mainly argued on three poinfs i,e, the principle of res judicata, Order XLI, rule 27, C.P.C. For adducing additional evidence and section 65 of the Contract Act. On the other hand, counsel for the respondents controverted the arguments of the learned counsel for the petitioners and supported the impugned judgment.

4. We have heard the learned counsel for the parties at length and perused the available record. As far as the question of res judicata is concerned, it has been elaborately dealt with by the learned High Court and it was observed that the analysis of the cases indicates that both matters were based on different causes of action and between different parties. The earlier Suit No, 321 of 1969 was instituted by Muhammad Aslam Khan Khattak against Mustafa Kamal etc. On the basis of a promissory note executed by the latter on 23-2-1967 whereas the subsequent suit leading to the present revision petition was instituted by Master Khan GM on 31-7-1975 against Daud Khan, Suleman Khan and Usman Khan. The subject-matter of subsequent suit was Mutation No, 2856 attested on 20-11-1967. It is quite clear that the subject-matter and parties are not the same.

Therefore, it has been correctly held by the High Court that the principle of res judicata was not applicable. With regard to section 65 of the Contract Act, it has been held that in 'case when the contract becomes void benefit received by a person is to be restored to the other party. A perusal of the instant case shows that neither there was any defect in the contract nor it was void merely for a subsequent act taking place after eight years of finalization of the contract. There is not an iota of evidence regarding consideration or some bank cheque which was not honoured subsequently and no evidence is available in this behalf. Therefore, taking this plea after eight years i,e, beyond period of limitation is of no use to the petitioners. As far as Order XLI, rule 27, C.P.C.

Regarding production of additional evidence and inclusion of an admission of respondent No,4 is concerned, this fact though fully in the knowledge of the present petitioners was neither raised before the trial Court nor before appellate Court. They could not fill up the lacuna in their case by relying on Order XLI, rule 27, C.P.C.. A plaintiff has to prove his case on the basis of material facts relevant on the date of institution of the suit. They suit was instituted in 1975 and decided on 3-9- 1995 and this plea was not taken by the petitioners at the relevant time and was correctly rejected by the appellate Court as well as by the revisional Court at the latter stage. The petitioners could not be allowed to adduce evidence to fill up' the lacuna in their case. All the three points have been elaborately discussed by the learned High Court and we see no good ground to interfere in the concurrent findings of the three Courts below. The impugned judgment does not suffer from any illegality or irregularity.

5. For the foregoing reasons, this petition having no force is hereby dismissed, leave refused.