HOSHIAR ALI vs GHULAM SABIR

' This revision impugns the judgment/decree dated 7-6-1983 of the learned Additional District Judge, Gujrat, whereby the petitioner's appeal was dismissed.

2. Those were two rival suits, one of them was brought by the present petitioner Hoshiar All for a declaration that he was owner of the shop in question having purchased for Rs,1,000 by a registered sale-deed dated 14-1-1970 from Master Abdul Latif who in turn had earlier purchased the same for Rs,5,000 from its original owner Mst Azizan by means of a decree dated 21-9-1966. He felt the need to bring the suit because the rival plaintiff Ghulam Sabir in his capacity as attorney for his mother Mst Azizan, aforesaid, had allegedly, acted in excess of his authority in mortgaging the shop with the respondent National Bank, which by then had obtained an order (presumably a decree dated 20-10-1972) for its sale for recovery of the mortgage-debt. He asserted that neither the mortgage nor the decree dated 20-10-1972 were of any effect against his interest as owner of the shop.

3. The other suit was brought by Ghulam Sabir assailing validity of the decree dated 21-9-1966 whereby his mother Mst Azizan had transferred the shop to Master Abdul Latif on the grounds that it was the result of their collusion and fraud inasmuch as she was not competent to make the sale, nor could the shop situate within municipal limits be so orally sold. He claimed title as a son of the lady who in the meanwhile had expired.

4. Both the suits were contested by the respective defendants, were later consolidated for a single trial, and were disposed of by the same consolidated judgment. The one brought by the petitioner Hoshiar All was dismissed while the other filed by Ghulam Salin was decreed. It was axiomatic that there were two decrees but Hoshiar All preferred only one appeal, that is in his own suit, omitting to file a separate appeal from the other decree. His appeal failed and hence the present revision petition.

5. A preliminary objection was raised against maintainability of the revision stating that the decree in the other suit having not been assailed by a separate appeal, had become final and operated as res judicata. Reliance was placed on Syed Asghar Hussain and another v. Syed Ahmed All and another (1990 ALD 423(1)), the case of R. Gundu Rao (AIR 1960 Mad. 57) and Sarvan Nath Sethi and another v. Ram Kishen Sethi and others (AIR 1963 Punjab 131) in support of the view that failure to appeal from the connected decree arising out of the rival suit being disposed of by the consolidated judgment, was fatal to the appeal brought against the other decree on the ground of res judicata.

6. The argument was seriously opposed stating that since no such objection was taken before the lower appellate Court, it was not open to raise it before the High Court for the first time and further that it being purely technical in nature, could not be allowed to thwart justice. Counsel canvassed that rules were mere mechanics for advancement of justice rather than to stifle it and sought support for this view from Imtiaz Ahmad v. Ghulam All etc. PLD 1963 SC 382 (399).

7. In replay, the omission to avail the appeal was said to be substantially more than a mere technicality going to the root of the present appeal/revision on the principle of res judicata giving rise to a valuable right in favour of the respondents.

8. Considering the pros and cons I feel the ratio of the cases of Syed Asghar Hussain, R. Gundu Rao, and Sarvan Nath Sethi, referred to above furnished ample authority in support of the contention that the decision in the opposite suit could operate as res judicata. It is true it should have been raised also before the lower appellate Court, but no direct authority was alluded to showing that such failure would have the effect of taking away such a valuable right from the party concerned.

The petitioner should have been well aware that he was pitted against the rival suit, which indeed was filed earlier in time on a ground slightly different from those taken up by him in his own. B Decreeing the rival suit on those grounds will always call for the need to impugn them higher and higher, or else the finding will amount to a case heard and decided previously so as to bar its fresh decision.

9. Ch. Abdul Waahid, Advocate for the petitioner stressed that the decree dated 21-9-1966 transferring the shop to Master Abdul Latif did not require registration notwithstanding the fact that it was situate within Municipal limits, as according to him, it was exempt under the provisions of section 17(2)(vi) of the Registration Act. He maintained that for this simple reason the contrary conclusion drawn by the Courts below was absolutely untenable.

10. Legally speaking the above proposition could not be rejected out of c hand, but the point having been heard and decided in the previous suit, would preclude this Court to reopen it.

11. Consequently, the revision petition is dismissed.