NIAZ AHMAD KHAN vs KISHWAR BEGUM and 19 others

Niaz Ahmed Khan son of Hayat Din Khan the petitioner herein had instituted a suit for possession through partition of the suit property in the year 1989. He had impleaded therein the other legal representatives of Hayat Din' Khan deceased. The suit was contested inter alia on the plea that an earlier suit filed by the petitioner had been dismissed on 4-12-1984, which judgment and decree operated as res judicata. Issues including an issue as to res judicata were framed by the learned trial Court. In pursuance of a direction by the Appellate Court, Issue No,3 as to res judicata was to be treated as a preliminary issue. Vide judgment and decree dated 10-6-1991 the learned trial Judge decided the issue of res judicata in favour of the respondents/defendants and dismissed the suit of the petitioner/plaintiff. The said judgment and decree has been affirmed by the learned Additional District Judge, Sialkot vide judgment dated 5-4-1994. This is revision petition thereagainst.

2. It is contended by the learned counsel for the petitioner that the view taken by the Courts below qua the principle of res judicata is erroneous and illegal inasmuch as the previous suit had not been decided on merits and that the pleadings of the parties were at variance in both the suits. It is contended that the principle of res judicata could not be invoked to such a suit and that such technicalities should not stand in the way of decision of matters on merits. Reference has been made to Habib-ur-Rehman v. Abdul Rehman and 3 others 1987 CLC 195 and Manager, Jammu and Kashmir State Property in Pakistan v. Khuda Yar and another PLD 1975 SC 678. The learned counsel for the respondents supports the concurrent view taken by the Courts below in the matter by relying upon Inayat Ullah v. Khan Begum and others PLD 1958, (W.P.) Lahore 686.

3. Admittedly the petitioner had earlier filed a suit for partition and possession which was contested by the respondents on the pleas taken in their written statements. Issues therein were framed.

Number of opportunities were afforded to the plaintiffs to produce evidence which was not availed of. As a result the, learned trial Court invoked the provisions of Order XVII, Rule 3, C.P.C. And eventually dismissed the suit vide judgment and decree dated 4-12-1984. That judgment and decree was not challenged by the petitioner any further, which thus attained finality. It may be ordered that while recording findings on Issues Nos. 1 and 3 therein, it was found by the learned trial Court that the petitioner, who was one of the plaintiffs with others in that suit had failed to prove that the suit property was owned by Hayat Din Khan. The present suit which was filed in the year 1989 was substantially based on similar plea of the petitioner and was for similar relief. Section 11, C.P.C. Which contains the principle of res judicata reads as follows:-- "11:Res judicata.--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 or between the parties under whom they or any of them 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."

4. The perusal of the above provisions would make it abundantly clear that where any "issue" covering substantially the same matter has once been heard and decided by a former Court, the same could not be agitated or tried again in a subsequent suit. As mentioned above, the controversy had substantially been in issue between the same parties in the former suit dismissed on 4-12-1984. InayatUllah v. Khan Begum and others PLD 1958 (W.P.) Lahore 686 is the authority for the proposition that where the Court proceeds to decide the suit under Order XVII, Rule 3, C.P.C. It is a decision on merits and a fresh suit on the same cause of action is barred under section 11, C.P.C.

Reliance of the learned counsel for the petitioner on Habib-ur-Rehman's case 1987 CLC 195 (supra), is misplaced- inasmuch as the observations made in that case were in a different context. It is that a person "whose right has not been adjudicated earlier" can file a suit for partition which was not to be hit by the principle of res dedication. In the present case, however, as mentioned above the petitioner himself was a plaintiff before the Civil Court in the former suit which was dismissed and the judgment was not challenged any further. He was bound by the said determination irrespective of the pleading of the parties therein. It may be observed that it is the determination of the "issue" which finds mention in section 11, C.P.0 which issue stood determined in the former suit. The view taken by the Courts below can neither be regarded illegal nor suffering from any material irregularity. The reliance of the learned counsel on the other precedents is also inapt as in the context of the facts and circumstances of the present case, the dismissal of the suit on the doctrine of res judicata cannot be termed as the decision based on technicalities. As a consequence of the above, this petition is devoid of any merit and is dismissed. No order as to costs.