AHMAD TAIMURE BOKHARI Versus MURRAWAT BURJEES

ORDER

1. Exemption application granted.

2. This is a civil revision petition against the order dated 19-3-1989 passed by the learned 7th Senior Civil Judge (South), Karachi, rejecting the application of the applicant under Order VII, Rule 11, C.P.C.

2. The facts leading to the above petition, briefly stated, are that the respondent is a landlady who filed an ejectment application against the petitioner on 24th May, 1984, which was ultimately compromised on 16-3-1985. The application and the order passed thereon read as under:--

3. "Application for compromise of case.--

4. It is submitted on behalf of the parties hereto as follows: -

(1) That the Opponent is agreeable to vacate the demised premises within one month from the date hereof in the same state as was received with all the fittings and fixture.

(2) That in the circumstances the applicant is willing to accept the premises within one month from the date hereof.

(3) That in case the opponent fails to vacate the premises within one month i.e. by end of April 1985 the applicant will be entitled to file Execution Application for eviction without notice to the opponent.

5. It is therefore prayed that orders may kindly be passed in terms of this application."

ORDER

6. Case called up at 10-10-A.M. The opponent's counsel is present. r present on behalf of the Applicant. Pended till 10-30 A.M.

7. Sd/A.R

8. Case re-called at 11.15 A.M.

9. The counsel for the parties are present and have jointly filed an application/letter of compromise.

10. Accordingly the case stands disposed of in terms of the compromise.

11. Announce in open Court.

12. Sd/A.R.C.

13. The present suit riled by the respondent landlady is for recovery of arrears of rent in the sum of Rs.71,492.

14. Mr. Gharib Nawaz, learned counsel for the petitioner submits that the plaint was hit by Order 2, Rule 2, C.P.C. as well as by the doctrine of res judicata under Section 11, C.P.C.

15. The first submission of the learned counsel that the above suit is hit by the provision of Order 2, Rule 2, C.P.C. is misconceived as the earlier case filed by the landlady was simply an application for ejectment under Sind Rented Premises Ordinance, 1979, praying for ejectment of the petitioner, who was her tenant. It is, therefore, not hit by the provision of Order 2, Rule 2, C.P.C. The two authorities cited by the learned counsel- M.K. Abbasi v. United Bank Ltd. (1983 C L C 482) and Fazal v. Abdul Hussain and 6 others (PLD 1977 Karachi 772) are distinguishable inasmuch as the first case relates to the suit and counter-claim to the suit and the second case pertains to two pauper applications; which were dismissed being on the same facts and grounds. In any case, it was finally ordered that the dismissal of the pauper application was not a bar to the filing of regular suit on payment of court-fees by the alleged paupers.

16. As regards the second submission on the point of res judicata, it is manifest that 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 under whom they or any of the 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. The earlier case was merely a case for ejectment and not I a suit, secondly the issue of arrears was not decided in the said ejectment proceeding. In fact the case was not decided on merits, it was compromised on the terms already reproduced above. Learned counsel further submits that the respondent had waived, relinquished and abandoned his right of claiming of arrears of rent by virtue of compromising the matter. I am afraid, the submission is not borne out of the compromise application. I cannot read into it any part as to relinquishment, waiver or abandonment of the arrears of rent in the compromise application and the order passed thereon. Learned counsel lastly submits about the incompetency of the person filing the suit, it will require evidence and cannot be so concluded merely by reading the plaint.

17. After I dictated the above order, learned counsel stood up and submitted that the suit is not maintainable because no cause of action has accrued to the respondent landlady. I am constrained to say that the submission has no merit, as the scope of Sind Rented Premises Ordinance, 1979 and a regular suit for claiming arrears lie under different provisions of law and have different scope o' inquiry and result. It cannot therefore be said that she has no cause of action.

18. For the aforesaid reasons the Revision Petition is dismissed in limine.

3. In view of the above, the application for stay has become infructuous and is dismissed.

19. Before parting with the matter it may be clarified that the above observations are tentative in the light of the plaint only. 1t will be open to the learned Trial Court to come to its own finding as to the pleas taken by the learned counsel for the applicant after the evidence is led by the parties.

20. MYH/A-622/K

21. Petition dismissed.