MUMTAZ ALI Versus IQBAL AHMED

ORDER

1. SHAHAB SARKI, J.--- The applicants have impugned the order dated 12-3-2009 passed by the Civil Judge in F.C. Suit No.Nil of-2000 (Mumtaz Ali and others v. Iqbal Ahmed and others) and order dated 23-5-2012 in Civil Appeal No.14 of 2009 passed by Additional District Judge Moro.

2. Briefly the facts as stated are that sale agreement was executed between the applicant and the respondents but the entire sale consideration was not paid. They had earlier, filed a suit bearing No.7/1983 for prayer of specific of performance of contract and permanent injunction which was dismissed thereafter the appeal was preferred bearing No.18/2000 which was also dismissed. The applicant thereafter preferred a Civil Revision bearing No.94/2000 before this Court which was also dismissed.

3. That thereafter started a second round of litigation and the applicants filed a suit bearing No.2/2009 for declaration and injunction in respect of same contract and same property. Vide impugned order dated 12-3-2009 the said suit was dismissed upon an application under Order VII, Rule 11, C.P.C. and on typed page 6 of said order, the trial court has opined as follows:-- "as such plaintiff party has got no fresh cause of action to again approach the court of law, because earlier suit in respect of the same property as well as same parties has already been decided by this court, therefore, the suit in hand is hit by provision of section 11 of C.P.C. on point of Res judicata, so also barred by section 42 of Specific Relief Act, as such possession claimed by plaintiff party to have with them, appears to be unlawful, as such unlawful possession cannot be protected under any law and present suit of plaintiff party appears to be in competent and meritless."

4. The appeal was thereafter preferred and the said appeal, bearing Civil Appeal No. 14/2009 was dismissed vide order dated 23-5-2012 and thereafter, the applicants have filed the present revision application.

5. It is contended by the learned counsel for the applicant that earlier suit was filed for different relief and the instant suit has altogether different prayer. It is further contended that without material evidence available on record the trial court could not have declared their possession as unlawful. He has prayed for remand of case to trial court for disposal of the case afresh.

6. Mr. Manoj Kumar has argued that the trial court as well as appellate court has rightly dismissed the suit and appeal of the applicants as under law he could not have sought any relief on same cause of action. He referred Order II Rule 2, C.P.C. He has also relied upon the following case law:--

(i) 2002 YLR 1473, (ii) 2002 SCMR 338, (iii) 2010 SCMR 984, (iv) 2000 SCMR 1647 and (v) PLD 2008 SC 155.

7. I have heard the learned counsel and perused the case law.

8. It is an admitted position that the present litigation as well as earlier were between the same party and on the same property. There is no fresh cause of action available to the applicant to initiate second round of litigation and on this score the impugned orders are lawful and within the parameters of law. As regards unlawful possession, we are of the opinion that it could not be decided by the trial court because the legality or otherwise of possession was not to be considered while deciding application under Order VII, Rule 11, C.P.C. as the same could not be decided without recording of evidence.

9. In view of aforesaid facts and giveng circumstances, the revision application is dismissed along with the listed applications. However, the terms unlawful possession, as on typed page 6 of the impugned order are expunged.

10. AG/M-176/Sindh Revision dismissed.