MUHAMMAD NASIM Versus MAJUDAN

This Revision Application under section 115, Civil Procedure Code, 1908 is directed against Judgment and Decree dated 7th January, 1981 passed by the learned IInd Senior Civil Judge, Karachi, dismissing Suit No.834/1973 filed by the Applicants against the Opponents for recovery of possession of a plot of land.

2. The facts leading to the above revision application, briefly stated, are that the Applicant No.l was allotted, as alleged, a piece of land measuring 460 sq yds. or thereabout in the Commercial area of Liaquatabad, Karachi by the Deputy Refugee Commissioner, Karachi by his order No. 17‑3‑DRC‑53/8190 dated 17‑4‑1953. Physical possession thereof was delivered to him by the Refugee Welfare Officer, Karachi. The said plot was subsequently numbered as 4, Charcoal Commercial Area, Liaquatabad, Karachi. The Applicant raised some construction thereon. Applicant No.2 who is brother‑in‑law of Applicant No.l was carrying on business there, under the permission of Applicant No.l. On 3rd April, 1973, Opponent No.2 forcibly entered into and took possession of the said property on the pretext that Opponent No.l was allottee of the said plot and Opponent No.2 was her attorney. The Applicant, thereupon, filed Civil Suit No.834/1973 for possession of the said property under section 9 of the Specific Relief Act. The said suit was contested by the legal heirs of the Opponents. On pleadings of the parties, the trial Court framed 9 Issues. Issue No.5 related to the allegation of the applicants being in possession of the plot in question whereas issue No.6 related to the allegation of dis‑possession of the Applicants from the plot in question on 3‑4‑1973, by the Opponents.

3. It is noticeable that the Applicants also filed a Regular Civil Suit No.227/1976 for possession of the said plot against the same Opponents. The later suit No.227 of 1976 was, however, decided prior to Suit No.834/1973.

4. The learned Civil Judge found that the Issues arising out of Suit No.834/1973 which also arose in the later Suit No.227 of 1976, directly and substantially between the same parties, have already been decided by the Court in the later Suit. The fresh appreciation of facts between the same parties on same Issues was not permissible under Section 11, Civil Procedure Code, and, therefore, the findings in the lateer Suit No.227/1976 operated as resjudicata in Suit No.834/1973, as it was held in Suit No.227/1976, that the applicants plaintiffs were never in possession of the suit plot and, therefore, the .question of dispossession did not arise by the opponents/defendants on or about 3rd April, 1973. With the result, the learned Civil Judge dismissed Suit No.834/1973, against which the above revision has been preferred in this Court.

5. Learned counsel for the applicants submitted that the judgment in Suit No.227/1976 was not final and having been challenged by means of Appeal No.232/1980, pending in the Court of District Judge, Karachi, Section 11, Civil Procedure Code was not attracted. In support of his contention he placed reliance on (i) AIR 1949 Oudh 1 Jitendra Mohan Singh v. Bindbasni Kuar, (ii) (P L D 1964 S.C. 520) FA. Khan v. Government of Pakistan and (iii) A I R 1952 Oudh 458) Ram Sarup Sinha v. Inderdeo Narayan Sinha.

(i) The first case relates to family settlement under Hindu Law wherein it was held that:

"A decision of a special Judge under section 11 holding the claimant's objection that certain properties were not liable to attachment, mortgage or sale in liquidation of the landlord's debts operates by virtue of section 11 (4) as a Civil Court decree regarding the objector's title, and if the landlord does not appeal against the decree, the decree becomes final and binding against the landlord and he will be precluded by S.47 from challenging it in any subsequent proceedings. The mere fact that the landlord has filed an application for Leave to Appeal to the Privy Council in the case would not deprive the decision of its finality and would not render it sub judice."

(ii) In the second case it was observed that the appellant was employed as an Inspector in the Land Customs Department. On the bass of certain charges he was dismissed by the order of the Collector of Land Customs on the 15th August 1950. He filed an appeal against the order of the Collector before the Central Board of Revenue (who had jurisdiction to hear the appeal) and the appeal was dismissed on the 7th May, 1952. On 25th June 1958, he filed the suit out of which this appeal arose for a declaration that the order of his dismissal was void and inoperative and that he continued to hold the post of an Inspector. The defendant, that is, the Pakistan Government, raised a preliminary objection that the suit was governed by residuary Article 120 of the Limitation Act which provided for a period of six years from the date when the right to sue accrues and in this case the right to sue had accrued on the 15th August 1950, and so the suit was barred by time. It was, held, that the right to sue accrued, in the circumstances of this case, on the dismissal of the appeal, and that the suit was within time under Article 120, Limitation Act (IX of 1908), after excluding the period‑of notice of two months under Section 80, Civil Procedure Code (V of 1908).

On the basis of this authority, it was contended by the counsel that the appeal is a continuation of Suit No.227/1976, and there was no question of res judicata.

(iii) In the third case it was observed that where a landlord seeks eviction of his tenant on one of the three grounds mentioned in his application and the Rent Controller passes an order of eviction accepting one of the grounds and rejecting the rest, it is not obligatory on the landlord to prefer an appeal against the adverse findings as Section 18 (1) allows an appeal to any person aggrieved by an order and not a finding of the Rent Controller. If the tenant appeals against the order of eviction and the landlord does not appeal against the adverse findings, they do not become final as between the parties and the Commissioner can decide the appeal on grounds rejected by the Controller. The terms of S.18 (3) or S.22 cannot preclude the Commissioner from re‑opening the issues decided against the landlord.

6. The facts as mentioned in all the three cases are quite different from the facts in the present case as in none of them the point at issue has been decided except that the Oudh case touches the point to some extent that decree becomes final if no appeal is filed.

7. The learned counsel for the opponents on the other hand, placed his reliance on A I R 1927 Lah. 289 Mt. Lachhmi v. Mt. Bbulli. It is a Full Bench decision of five learned Judges of the Lahore High Court, wherein it was specifically observed that Section 11, Civil Procedure Code applies to suits and not to appeals. The relevant observation is as under:

"I feel strengthened in this view by the fact that, after these judgments had been delivered under the Code of 1882, the legislature deliberately enacted Expl. 11 for the first time in 1908, which, read with the main clause of the section, leaves no doubt, whatever that `suit' does not include 'appeal'.

Let us see what are the fundamental principles of res judicata and how do they affect the present case. It has already been indicated that the foundation of the rule, as understood both by ancient and modern lawyers is that a question must be once fairly and finally tried by a competent Court and after this has been done all further litigation about it should be concluded for ever between the parties. The maxim is, as has been stated above, that "none shall be vexed twice over the same matter". This, to my mind, pre‑supposes that the issue has been once fairly and finally tried in a former litigation, which was independent of the proceedings in which the same matter is again in dispute."

8. The relevant provision of Section 11 Civil Procedure Code reads as under:

"No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court . . . .

Admittedly, in the earlier Suit No.834 of 1973, the question of illegal dispossession assumed importance whereas in the later suit the question of title as well as possession were both involved. The later Suit No.226 of 1976 having a larger scope included the issue of forcible dispossession and decree for possession of the applicants. These issues having been decided substantially in the later suit the trial Court was justified in holding that the decision on the Issues directly and substantially involved in that earlier suit No.834 of 1973 and in the later Suit No.227 of 1976, between the same parties, having already been found against the applicant by the Court of competent jurisdiction, the principle of res judicata was applicable to the suit in question. No party can be vexed twice for leading evidence. In the earlier suit, coming up subsequently for evidence, a Judgment is already against him in Suit No.227 of 1976 on the same Issues, which operates as res judicata. It may, further, be added that as the appeal in Suit No.227 of 1976 is pending, no prejudice is likely to be caused to the applicants.

9. In result, the Revision is dismissed with no order to costs.

10. Before parting with the case, it may be added that the learned counsel for the opponent had also raised a plea about the maintainability of the above Revision, and reliance was placed by him on Nawabzada Muhammad Umar Khan v. Muhammad Arif and others PLD 1964 Pesh. 157 and Raja Sher Ali v. District Judge Jhelum and 9 others 1989 CLC 219. Since I have disposed of the Revision on the sole ground of res judicata urged by the applicants, I do not consider it necessary to take into consideration the said plea.

AA./M‑741/K Revision dismissed.