Judgment Sheet

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

R. A. No. S – 196 of 2010

Date of hearing: 27.08.2018.

Date of judgment: 31.08.2018.

M/s Mukesh Kumar G. Karara and Sajjad Muhammad Zangejo, Advocates for the applicants.

Mr. T. David Lawrence, Advocate for respondent No.6 / WAPDA.

Mr. Abdul Ghaffar Memon, State Counsel.

Mr. Muhammad Aslam Jatoi, Assistant Attorney General.

J U D G M E N T

MUHAMMAD SHAFI SIDDIQUI, J. – This revision is arising out of concurrent findings of two Courts below. The trial Court rejected the plaint of the appellants and the appellate Court maintained the order.

2. Brief facts are that originally, plaintiffs filed a suit bearing No.46/2007 for declaration, possession, damages and permanent injunction. The suit was filed by Muhammad Hassan, Irshad Hassan, Mumtaz Hassan and Imtiaz Hassan through attorney / plaintiff No.1 i.e. Muhammad Hassan father of rest of the plaintiffs, against one set of defendants claiming the relief as under:

“ a) That, this Honourable Court may be pleased to declare that the plaintiffs are real, legal and lawful owners of the suit property and as such having every right, title, interest and legal character upon the suit property.

b) That, this Honourable Court may be pleased to declare that neither the defendants are real and legal owners of the suit property nor they have any right, title, and interest upon the suit property in any manner whatsoever.

c) That, this Honourable Court may be pleased to direct the defendants 1 to 8, to hand over vacant possession of the suit property to the plaintiffs, who are only the legal owners of the suit property by virtue of registered sale deeds.

d) That, this Honourable Court may be pleased to direct the defendants No.1 to 8 to pay Rs.500000/- to the plaintiffs in view damages caused by them to the plaintiffs by cutting about 100 standing at the suit property.

e) That, this Honourable Court may be pleased to grant ad-interim injunction against the defendants, restraining them from alienating or trying to alienate suit property, creating or trying to create third party interest in respect of suit property or attempting to keep / mutate false revenue record in the names of defendants No.1 to 3 etc. in respect of suit property, director or indirectly, either themselves or through their agents, assignees, men, servants, subordinates, employees etc. in any manner whatsoever.

f) That, the defendants be saddled with costs of the suit.

g) That, any other relief, which this Honourable Court deems fit and appropriate, be awarded to the plaintiffs. ”

3. In Suit No.46/2007 i.e. (earlier Suit), an application under Order VII Rule 11, CPC, was filed by defendants No.4, 6 and 8 therein, and the Court rejected the plaint as the plaintiff / appellant failed to satisfy the Court regarding “maintainability of the Suit”. It was observed by the trial Court while rejecting the plaint of the earlier suit that the remedy under Section 18 of the Land Acquisition Act was not exhausted by appellants / plaintiffs, hence, the cause of action as disclosed in the plaint was questioned by the trial Court. The reason assigned by the trial Court was that the arguments advanced by the counsel for the defendants / respondents got much force and, therefore, the plaint was liable to be rejected under Order VII Rule 11, CPC.

4. The appellant preferred an appeal No.31 of 2009, however, an order was passed on 01.10.2009 whereby the appeal was dismissed as withdrawn with permission to file fresh Suit if law permits. The appellant then filed Suit No.12 of 2009 (against another set of defendants) for declaration, possession, mesne profit and permanent injunction for the following relief:

“ a) That, the Honourable Court may be pleased to declare that the plaintiffs are lawful owners of the suit land / property / plots by virtue of registered sale deeds bearing registration Nos.499, 498, 497 & 496, respectively dated 26.04.2007 and the defendants No.3 to 14 have no right, title and interest upon the suit land / plots / suit property and the sale agreement, if any, executed by defendant No.5 in favour of deceased Muhammad Hassan, the father / husband of defendants No.3 & 4 is illegal, void and not binding upon the plaintiffs.

b) That, the Honourable Court may be pleased to direct the defendants No.3 to 10 to hand over vacant possession of the suit plot / property to the plaintiffs, in case of their failure, the Honourable Court may be pleased to authorize the Nazir of the Court to do the needful.

c) That, the Honourable Court may be pleased to appoint commissioner to assess the mesne profits in respect of the suit property from the date of registered sale deeds in favour of the plaintiffs till the delivery of vacant possession of the suit property / plots to the plaintiffs.

d) That, the Honourable Court may be pleased to issue permanent injunction against the defendants, restraining from creating third party interest of suit property / land / plots after the delivery of possession of the same in favour of the plaintiffs, in any manner whatsoever.

e) That, the defendants be saddled with costs of the suit.

f) That, any other relief, which this Honourable Court deems fit and proper, be awarded to the plaintiffs. ”

5. The trial Court rejected the plaint of the subsequent Suit as well. The trial Court rejected the plaint on the ground that the findings of the trial Court while rejecting the earlier plaint constitute res judicata for subsequent proceedings on the same cause of action. The trial Court also observed that the defects found in the subsequent suit were same as that in the previous Suit. Private defendants in earlier Suit were Hassan, Ramzan and Budho while in the present plaint private defendants are Muhammad Suleman, Rasheed Riaz, Shahnawaz, Mst. Razia Khatoon and Bakhshal and the plaintiff / appellant failed to satisfy as to how the defendants have been changed and why previous defendants except Hassan have been ignored to be impleaded in the subsequent Suit. The plaint was also rejected on the ground that plaintiffs No.2, 3 and 4 i.e. appellants No.2, 3 and 4 have not authorized plaintiff No. 1 / appellant No.1 to institute the suit, thus, it is observed that this defect is not “ignorable”.

6. I have heard the learned counsel and perused the material available on record. Mr. Abdul Ghaffar Memon, State Counsel has relied upon the case of Muhammad Ali and others v. Province of Punjab and others reported in 2009 SCMR 1079 wherein the questions of res judicata on question of facts were considered. The findings of fact while rejecting a plaint was considered as res judicata, whereas, those defects which were/are curable the doctrine and principle of res judicata was excluded. The trial Court and the appellate Court relied upon the order passed on the withdrawal application at the appellate stage that it did not set aside the order dated 21.04.2009 and the order (rejection of plaint) remained intact. Order VII Rule 13, CPC does permit a litigant / plaintiff to institute a suit and he was not precluded from filing fresh suit. This relaxation is to be read along with the order of the appellate Court passed in Civil Appeal No.31 of 2009 which granted permission to institute a fresh suit if permissible under the law. The appellate Court while disposing of the appeal arising out of the first Suit permitted appellant / plaintiff to institute a fresh suit if permissible under the law, thus, the cause and the questions raised in the subsequent plaint were to be reconsidered in the light of the order of the appellate Court and the trial Court was bound to see whether such plaint could be instituted and the relief could be granted to the appellant. In order to reach to a conclusion that the suit was competently filed, it is to be seen whether the relief claimed comes within the frame and jurisdiction of the trial Court or within the ambit of Section 18 of the Land Acquisition Act. No dispute between private parties could have been settled under Section 18 of the Land Acquisition Act. Proceedings under Section 18 triggered only when an award is passed, whereas, the present litigation revolves around two private parties claiming right over the property, hence, the trial Court had the jurisdiction to decide the controversy as raised in the plaint.

7. For the subsequent plaint to be hit by Section 11, CPC, none of the ingredients is available for the application of doctorine of Section 11, CPC. Neither parties are same nor cause of action, therefore, the judgment as relied upon by the State Counsel is not applied to the facts and circumstances of the case. The alleged non-authorization of appellants No.2, 3 and 4 to institute a suit by appellant No.1 also not available to the respondents to enforce rejection of plaint as the plaint of plaintiff No.1 could have been competent and the plaint cannot be rejected in piecemeal. Thus, the reasons assigned by the trial Court and as maintained by the appellate Court insofar as rejection of a subsequent plaint is concerned, I am of the view that neither principle of res judicata would apply nor the parties and the cause of action as disclosed in the subsequent plaint are same. It may call for the dismissal of the Suit in case the allegations as raised are proved but summarily not attracted for rejection of plaint.

8. The Revision Application is allowed and case remanded to trial Court to proceed further on merit and dispose it of in accordance with law within six (06) months.

J U D G E

Abdul Basit