MUHAMMAD SALEHEEN Versus Ch. AHMAD SAEED

ORDER

1. Respondent Ch. Ahmed Saeed filed a Suit No.1589 of 1986 against the applicant in the Court of Tenth Civil Judge, Karachi, seeking the following reliefs:‑

(i) For declaration that the alleged sale agreement of Rs.2,900 date 23‑7‑1965 is void ab inito, illegal, ultra vires, inoperative, not binding and irrelevant with the property No.331, Gali No.1l Delhi Colony, Karachi 6 and not binding on plaintiff.

(ii) To declare. for cancellation as forged and manipulated prepared by forgery and produced dishonestly and mischievously and that it be adjudged void and ordered to be delivered upon or in alternative it will be adjudged as rescinded.

(iii) For perpetual injunction restraining the defendant or any person claiming through him from acting on the basis of forged and manipulated document and costs.

(iv) To pass such order for further relief if any." ‑

2. The applicant thereafter filed an application under Order 7, Rule 11, C.P.C. before the learned trial Court on the ground that the matter in the suit was directly and substantially the same as in Suit No.303 of 1985 which was earlier decided between the same parties. Consequently, the plaint of suit No.1589 of 1986 was rejected by the trial Court. Although the order of the learned trial (Court, dated 28‑4‑1987 indicates that the suit was dismissed under section 11 of the Code of Civil Procedure nevertheless it was passed on the applicant's application under Order VII, Rule 11, C.P.C. Be that as it may, the respondent then impugned this order before the learned District Judge, Karachi (West) in appeal and the same was allowed and the order of the learned trial Court was set aside and the case was remanded to the learned trial Court for disposal on merits and hence this revision application.

3. I have heard the applicant who has appeared in person and also perused the impugned judgment and the order passed by the learned trial Court, dated 28‑4‑1987. The order of the learned trial Court clearly shows that the suit was disposed of under section 11, C.P.C. purely on the basis of the record of Suit No‑303 of 1985 which showed that a decree had been passed by the Thirteenth Civil Judge, Karachi and the matter in the earlier suit was substantially the same as in the later suit. This order was however, set aside by the learned Appellate Court on the ground that only the averments made in the plaint are to be looked into by the Court for the purposes of Order VII, Rule 11, C.P.C. and no extraneous matter could be considered for such purpose. A perusal of the impugned judgment shows that the learned Appellate Court while remanding the case to the learned trial Court has further directed that the question relating td the bar of the subsequent suit on the principle of res judicata could be tried as a preliminary issue. I do not find the order of the learned Appellate Court to be suffering from any infirmity or material irregularity so as to attract the provisions of section 115 of the C.P.C.

4. As a result, the revision application is dismissed in limine.

5. H.B.T./M‑415/K Revision application dismissed.