Syed Pir ZAINUDDIN ALGILANI vs NASRULLAH and others
The petitioner, a lessee of cantonment land, filed a suit against the respondents for the removal of illegal obstructions in a street that blocked access, light, and air to his property. Previously, the petitioner's vendee had filed a separate suit regarding the same obstruction, which was rejected by the District Judge on grounds of limitation and lack of standing, a decision upheld by the High Court. When the petitioner subsequently filed his own suit, the respondents raised a plea of res judicata. The trial court rejected this plea, but the High Court, in revision, dismissed the petitioner's suit, holding that the previous decision against the vendee barred the petitioner's claim. The Supreme Court granted leave to appeal to determine whether a decision in a previous suit, to which the petitioner was not a party and which was dismissed for lack of cause of action and standing, legally debars the petitioner from filing a subsequent suit regarding the same subject matter. The Court is tasked with clarifying the application of res judicata in these specific circumstances.
- Does a judgment in a suit filed by a vendee, to which the original lessee was not a party, operate as res judicata against the original lessee in a subsequent suit?
- Can a suit be dismissed on the grounds of res judicata when the previous suit was dismissed for lack of cause of action and standing?
- Is a plaint liable to be rejected under Order VII Rule 11 of the Code of Civil Procedure 1908 if the plaintiff fails to establish a right of easement under Section 26 of the Limitation Act 1908?
- Section 26, Limitation Act 1908
- Order VII Rule 11, Code of Civil Procedure 1908
- Order I Rule 10, Code of Civil Procedure 1908
- Section 151, Code of Civil Procedure 1908
ORDER
' FAZAL ILAHI KHAN, J.---Petitioner was granted lease of 1026 s.Ft. Of cantonment land situated at Station Road, Zhob, bearing MKT No,1 for purpose of residential/commercial building for a period of 90 years. Petitioner submitted as site plan for raisin composite building consisting of two shops on the ground floor and two rooms on the first floor which was approved on 25-9-1984 and completion certificate issued on 3-12-1984. On 15-12-1987, petitioner through his attorney Haji Usman Mankokhel executed a sale-deed in favor of Haji Muhammad Ali. Haji Muhammad Ali approached respondent. No,4 for transfer of the land which was delayed on the pretext of obtaining sanction from the Central Government. After occupation of the building he was using C.M.H. Masjid Street for his passage to and from the building as also for air and light. That in December, 1992 when the petitioner was away for Tabling' respondents 1 to 3 taking benefit of his absence blocked the passage by raising a structure which closed the doors of both the shops as well as the air and light of the building rendering it completely unusable. Respondents 1 to 3 also constructed hotel and a Tandoor in the street. Muhammad Ali approached the District Judge, Loralai in a suit for declaration and mandatory induction against the respondents. In the written statement the contesting defendants, apart from challenging the transfer, raised a plea that the vendee/assignee had no locus stand to file a suit as street in question was a Government property and no proof was filed/attached with suit showing that street was being used for the purpose of passage/right of easement. No cause of action accrued to the vendee against defendants and thus plaint was liable to be rejected under order VII, Rule 11 C.P.C. The learned District Judge without recording evidence, and after hearing the arguments rejected the plaint by judgment and order dated 28-7-1993 on two-fold grounds firstly, that the plaintiff claimed his right of passage, air and light since 1987, but this period does not come within ambit of section 26 of the Limitation Act and secondly, that the actual lessee i,e, Syed Zainuddin Anglian petitioner herein has not been impleaded as party nor said Zainuddin Algilani seems to be aggrieved by the said act of defendants Nos. 1 to 3. In the concluding part it was held that there was no cause of action for filing the suit and the claim of the plaintiff was barred by section. 26 of the Limitation Act. Aggrieved by the rejection of the plaint the vendee filed R.F.A. No,37 of 1993 in the High Court accompanied with an application under Order I, Rule 10 and section 151, C.P.C. For permission to implead petitioner as respondent in the appeal as well as in the suit. The learned High Court dismissed the appeal on 22- 12-1993.
2. Petitioner, on facts of the case stated above, served respondent No,4 with a notice for removal of the illegal obstruction caused by the construction raised in the street. In reply it was stated that the matter will be scrutinized in the light of the record. On respondent No,4 failure to take action the petitioner filed the present suit in the Court of District Judge, Lorelei. The suit was contested by the respondents on legal and factual pleas by filing the written statement in which certain preliminary objections including that of res judicata were raised. These objections did not prevail with the learned trial Judge and were rejected. The order of the learned trial Judge in this regard was challenged in revision before the learned High Court. The learned High Court vide judgment dated 28-11-1994 accepted the revision petition, set aside the interlocutory order of the learned trial Judge, and dismissed the suit mainly on the ground of the decision already given in the suit between the vendee of the petitioner and the respondents.
3. After hearing the learned counsel for the petitioner leave is granted to consider, inter alia, the contention of the learned counsel as to whether decision given in the previous suit, to which petitioner was not a party and which was dismissed on the ground that plaintiff in that suit had no cause of action and that he had no locus stand as the original allotted was not made party to the suit, debarred the petitioner to file the present suit as held by the learned High Court.