VAIM METAL AND PLASTIC WORKS Versus AZRA VAQAR

ORDER

1. This application under section 12 (2) of the Code of Civil Procedure has been filed by the appellant for setting aside the judgment dated 23‑10‑1983. The facts giving rise to this application are that the respondent is landlady and owner of the premises bearing No. J‑68/4, Muslim League Quarters Nazimabad, Karachi and the appellants are the tenants in respect thereof at the monthly rental of Rs.165. The respondent had filed eviction application No.404 of 1975 on the grounds of default, conversion, impaired the value and utility of the premises. The appellants resisted the eviction application. The Rent Controller after taking into consideration the evidence adduced by the parties and taking into consideration the arguments advanced by the learned counsel for the parties allowed the eviction application, by his order dated 20‑9‑1980. The appellants being aggrieved against the above order of the Controller had preferred the above appeal. The appeal was dismissed by this Court on 23‑10‑1983. The respondent filed execution application as the appellants did not hand over the vacant possession of the premises in dispute to the respondent. The appellants filed application under section 12 (2) which was dismissed as not competent. Thereafter the appellants have filed this application stating therein that the husband of the respondent used to supply some materials to the appellant No.l on commission basis and the appellant No.2 had family relations with respondent and her husband. It is the case of appellant that in 1973 he came to know that the landlady Mst. Sarwari Begum wanted to sell the premises in question and she received an offer of Rs.34,000. It is the case of the appellant No.2 that Mst. Sarwari Begum agreed to sell property to him for a sum of Rs.34,000 and it was further agreed that the amount was to be paid in instalments. It is the case of the appellant No.2 that he did not want to purchase the premises in question in his own name as such he approached the husband of the respondent in this regard. It is the further case of the appellant No.2 that the sale‑deed would be executed in favour of the respondent at the cost of the appellants and the title documents would remain in his possession. It is the case of the appellant No.2 that a sum of :1s.25,000 was paid by him through Bank drafts and further sum of Rs.1,700 was paid to Mr. Iqbal Siddiqui, Advocate towards the professional charges and for registration of sale‑deed. It is case of the appellants that the husband of the respondent wanted to raise construction at the open space. A letter was received by the appellants stating therein that the sale‑deed was executed. The appellants also received a letter from Mst. Sarwari Begum. The appellants came to know from Abdul Ahad husband of the respondent has misrepresented him. The parties exchanged letters and thereafter the respondent had filed eviction application as stated in the earlier part of the judgment. . Kh. M. Hussain Darabu, the learned counsel for the appellants has contended that the respondent had acquired the sale deed by fraud and mispresentation, and the Controller lacked juris diction to go into the grounds of rights in the property.

2. On the other hand Mr. Humayun, the learned counsel for the respondent has submitted that the application is not maintainable as the appellants took all the grounds including fraud and misrepresentation in the memo of appeal but abandoned those grounds in the arguments. In support of his submission he also invited my attention to following portion of the judgment which reads as under:‑

3. "The appellants did not specifically deny the relationship of the landlady and tenant." He also drew my attention to additional plea in the written statement filed by the appellant No.l. It is advantageous to reproduce the same which reads as under: The premises in question were to be purchased by the applicant in trust for this appeal and the appellant is bound to re‑transfer the same to the opponent on receipt of the purchase money plus Rs.5,000 as earlier agreed."

4. The case of the appellants is that the sale‑deed executed between the respondent and Mst. Sarwari Begum was obtained by misrepresentation and fraud. His contention is that the document/ sale‑deed was a Benami document without consideration and, as such, ineffective and inoperative. I am of the view that this plea cannot be raised in this application. Firstly the document created an unsurmountable obstruction and cloud in the title of the appellants and as such a declaratory suit with consequential relief in the shape of cancellation of the document or a suit for cancellation of the document ought to have been filed. Secondly, when the eviction order is appealed against, the order of eviction is merged in the judgment o: the appellate Court though the appellate Court may affirm the eviction order. What operates as res judicata is not only the decision but the grounds on which the decision is based. Thirdly, the appellants raised these pleas in the memo of, appeal. The appellants abandoned these grounds. A fresh adjudication of the said grounds was clearly barred by the principles of res judicata. It is well settled that the principle of res judicata applies also in between two stages in the same litigation to this extent that a Court, whether the trial Court or a High Court, having at an earlier stage decided a matter one way, will not allow the parties to re‑agitate the matter again at a subsequent stage of the same proceedings. The judgment in appeal will operate as res judicata against the appellants and they cannot competently challenge in this application about there being no relationship of landlady and tenant between her and the appellants and about the document being a Benami document without consideration and was obtained by misrepresentation and fraud.

5. Considered in the light of the above facts and circumstances of the case, it must be found that there is no merit in this application and it must fail. However, in the facts and circumstances of the case, the parties are directed to bear their own costs. The applications were dismissed by a short order dated 20‑8‑1986, and the above are the reasons for the same.

6. A. A./N‑4/K Applications dismissed.