ORDER SHEET
IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA
Civil Revision No.S-100 of 2019
Taj Muhammad Detho Versus Senior Civil Judge Rato Dero & others
__________________________________________________________________________
DATE ORDER WITH SIGNATURE OF HON’BLE JUDGE________________________
01. For orders on office objection “A”.
02. For orders on CMA No.400/2019 (E/A)
03. For orders on CMA No.47/2020 (151 CPC)
04. For hearing of main case.
Before
Mr. Justice Nisar Ahmed Bhanbhro
Applicant: Taj Muhammad
Mr. Ghulam Ali Abbasi, Advocate
Respondent No 3 Abdul Sattar Mangi
Mr. Vinod Kumar G. Jesrani, Advocate
Province of Sindh: Through Mr. Munawar Ali Abbasi,
Assistant Advocate General, Sindh
Dated of Hearing: 19.05.2025
Date of Order: 19.05.2025
ORDER
Nisar Ahmed Bhanbhro, J. Through instant Civil Revision application the applicant has called in question the order dated 28-08-2019 passed by the Court of Learned Additional District Judge-III Larkana (Appellate Court), in Civil Appeal No 101 of 2019 Re “Taj Muhammad Versus Abdul Sattar and others”,whereby the appeal filed by the applicant was dismissed and order dated 22-06-2019 rejecting the plaint in Suit No Nil of 2019 Re “Taj Muhammad Versus Abdul Sattar and others,”passed by the Court of Learned Senior Civil Judge Ratodero (Trial Court) was maintained.
2. Brief facts giving rise to filing of this Petition are that the applicant (plaintiff) filed suit for Specific Performance of Contract and Permanent Injunction against the respondent No 3 (defendant No 1 in the Suit) averring therein that the applicant entered into an agreement of sale dated 16-11-2018 with respondent No.3 in respect of the Agricultural Land Survey No.90 Area (2-31˝) Acre and S. No.91 Area (1-28) Acre situated in Deh Shadi Abro, Taluka Ratodero, in sale consideration of Rs.500,000. Applicant paid Rs 50,000 in cash on 16.11.2018, Rs 150,000 on 30.04.2019 and promised to pay balance consideration of Rs.300,000- on 30-03-2019 when suit property was agreed to be transferred in his favor by executing sale deed. Applicant further averred that subject matter of the sale was sub judice before the Court. Respondent No 3 withdrawn execution application on 13-04-2019, after withdrawal of execution application, applicant approached respondent No.3 for performance of part of the contract, which he refused. Applicant alleged that the Respondent No 3 being greedy person wanted to sell out the property to other person on higher rate, giving a cause to the applicant to file suit for Specific Performance. Applicant prayed for judgment and decree as under:-
a) That this Hon’ble court may be pleased to direct the defendant No.1 to make performance of contract and execute registered sale deed in favor of the plaintiff.
b) That in case of absence of defendant No.1 this Hon’ble court may be pleased to appoint Nazir of this court to make performance of the contract on behalf of defendant No.1 and collect the balance amount from the plaintiff and the same may be deposited to this Hon’ble Court.
c) That this Hon’ble Court may also be pleased to direct the defendant No.1 not to dispossess the plaintiff without due course of law and not to sell out the suit land to any other person except plaintiff.
3. Learned Trial Court issued pre-admission notice to respondent No.3, he appeared in person and verbally stated that the agreement dated 16-11-2018 was managed and false one and not executed by him. He submitted judgment and decree and other relevant documents before Trial Court and prayed for rejection of plaint. Learned Trial Court by exercising suo-motu powers rejected the plaint of the suit under order VII Rule 11 CPC vide order dated 22-06-2019. Applicant filed Civil appeal No.101/2019 before the Court of Learned District Judge Larkana which was assigned to the Appellate Court for disposal in accordance with law. Learned Appellate Court dismissed appeal vide order dated 28-08-2019, hence this Revision application.
4. Mr. Ghulam Ali Abbasi Learned Counsel for the Applicant contended that the Suit of the Applicant was maintainable under the law, as the parties had entered into an agreement to sell of the Suit Property. He contended that the Sale Agreement dated 16.11.2018 was legal, genuine and binding upon the parties, as the Respondent No 3 being lawful owner of the Suit Property sold it out to the Applicant under a sale consideration of Rs 500,000 out of which an amount of Rs 200,000 stands paid and Applicant was ready to pay balance consideration. That the Sale Agreement contained thumb impression and signatures of the Respondent No 3, the claim of the Applicant required proper adjudication by way of recording evidence but applicant was non suited on account of judgment and decree passed in earlier proceedings which had no bearing upon the litigation in hand. He prayed for allowing this Revision Application.
5. Mr. Vinod Kumar G. Jesrani, Learned Counsel for the Respondent No 3 contended that the Suit of the Applicant was not maintainable and barred under the law as the parties were under litigation over the same subject matter in F.C Suit No 64 of 2015 Re Abdul Sattar Mangi and 2 others Versus Muhammad Waryal through his Legal Heirs and 5 others, which was decreed in favor of Respondent No 3. The entries in revenue record in favor of predecessor in interest of the Applicant were cancelled and possession of the Suit Property was also handed over to the Respondent No 3. He contended that the Decree in Suit No 64 of 2015 was satisfied by the Executing Court vide its order dated 13.04.2019 but soon thereafter the Applicant again dispossessed the Respondent No 3 from the Suit Property and filed Suit for Specific Performance in order to defeat the Decree passed in earlier Suit. He contended that the orders passed by Courts below were within the parameters of Order VII Rule 11 and did not require interference of this Court. He prayed for dismissal of revision application.
6. Mr. Munawar Ali Abbasi, Learned Assistant Advocate General, Sindh supports the impugned orders of the Courts below on the ground that the Suit of the Applicant was barred under the law, as the rights of the parties were adjudicated in the earlier suit, and decree passed in the Suit stood satisfied. Applicant had no cause of action to file instant Suit. He prayed for dismissal of Revision Application.
7. Heard Arguments and perused material available on record with the assistance of Learned Counsel for the parties.
8. Examination of material on record reveals that there is a checkered history of litigation in between the parties. The Respondent No 3 Abdul Sattar and his sisters namely Mst Farzana Khatoon and Mst Shabana Khatoon filed F.C suit No.64 of 2015 before the Court of Learned Senior Civil Judge IV Larkana seeking the relief of Declaration, Possession, Cancellation of Documents and Permanent Injunction. The subject matter of the Suit was survey numbers 90 and 91 of Deh Shadi Abro. Respondent No 3 and his sisters sought indulgence of the Court to declare them the owners of the Suit Property and cancel Revenue Entry No 200 in Village Form VII – B in respect of Survey Numbers 90 and 91 of Deh Shadi Abro Taluka Rato Dero, to put them in possession and grant permanent injunction. After a full dressed trial, the suit was decreed as prayed vide judgment and decree dated 18.08.2018. The Decree Holders filed execution application No 04 of 2018 which was allowed vide orders dated 18-11-2018. The writ of possession was issued and the possession of the property was handed over to respondent No.3 and others on 25-03-2019 and on the basis of said report the executing court disposed of the execution application No.4/2018 vide orders dated 13-04-2019.
9. The applicant in the present litigation claims that he has entered into an agreement to sell with the respondent No.3 regarding the same property which was subject matter of the previous suit. The F.C suit No.64/2015 was decreed in favor of Abdul Sattar Mangi and his two sisters and it was directed in the decree that the Revenue authorities will transfer Khatta of land in favor of legal heirs of Muhammad Budhal Mangi who is the father of respondent No.3. The present applicant was party in the suit being legal heir of Late Muhammad Waryal, he was all aware about the decree passed in the earlier Suit. Applicant filed suit for specific performance on a purported agreement to sell dated 16-11-2018 which was allegedly executed between respondent No.3 and applicant before the witnesses. In the agreement of sell it is mentioned that the respondent No.3 will transfer the Khatta of survey No.90 and 91 in all 7 jrebs (3.5 acres) in favor of the applicant, it did not happen, therefore, the suit was preferred. The learned Trial Court rejected the plaint on the ground that the agreement to sell was affected during the execution proceedings but at no times the said agreement was produced before Executing Court. The applicant was also party to the execution proceedings but did not resist execution of decree by placing on record the alleged Agreement to Sell, on the Contrary applicant himself handed over the Possession of the Suit Property before Bailiff of the Court in presence of Mukhtiarkar and SHO of the concerned Police Station. He deposited an amount of Rs 150,000 to satisfy the decree of mense profits. In Civil appeal No.101/2019 the Appellate Court also examined the record and found that the applicant had not appeared before the court with clean hands, therefore, was not entitled for any claim and dismissed the appeal vide impugned orders. This factual aspect of the case when confronted to Learned Counsel for Petitioner, he could not dispel the same, and insisted that agreement to sell was genuine and suit filed by the applicant was competent and not hit by principle of res judicate.
10. The examination of contents of plaint reveals that the Suit of the Applicant was hit by the provisions of Section 11 of CPC which envisages that “No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue 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 been subsequently raised, and has been heard and finally decided by such Court.”As such was barred under the principle of Res Judicata. The parties litigated over the same subject matter and controversy was settled at rest by Executing Court vide orders dated 13.11.2019 and three days thereafter Applicant filed the present Suit claiming to have purchased the Suit Property from Respondent No 3, through agreement to sell. The foremost rationale of doctrine of Res Judicate is to uphold the administration of justice and to prevent abuse of process with regard to the litigation and it also nips in the bud the multiplicity of proceedings on the same cause of action. In the case in hand, for all practical purposes, the controversy between the parties attained finality and even under the doctrine of past and closed transaction, the controversy cannot be reopened by this Court in the second round of litigation by allowing this revision application and directing the Trial Court to decide the case on merits by recording evidence, which tantamount to an abuse of process of the Court. When confronted with this legal position Learned Counsel for the Applicant could not satisfy the Court that how the Second Suit was competent.
11. Honorable Supreme Court of Pakistan in the case of MessrsKhurshid Soap and Chemical Industries (Pvt) Ltd through Shaikh Muhammad Ilyas and othersVersusFederation of Pakistan through Ministry of Petroleum and Natural Resources and others reported in PLD 2020 Supreme Court 641 has expounded the principle of Res Judicate as follows:
“9. The principle of res judicata is a principle of peace. Once a controversy with regard to a right in property or a right to office is adjudicated upon and attains finality through a judicial pronouncement of a competent Court of law, it no more remains open to challenge in any subsequent judicial proceedings between the same parties on the same subject matter. This principle is intended not to afford a litigant more than one opportunity for resolution of a judicial dispute and thus eliminates the chances of repetitious and successive litigation against a party on the same issue. The maxim that there should be an end to litigation is germane to such matters.”
12. Honorable Supreme Court of Pakistan in the case of Muhammad Raqeeb Versus Government of Khyber Pakhtunkhwa through Chief Secretary, Peshawar and others reported in 2023 S C M R 992 has held as under:
“The doctrine of finality is primarily focused on a long-lasting and time honored philosophy enshrined in the legal maxim "Interest reipublicaeut sit finislitium" which recapitulates that "in the interest of the society as a whole, the litigation must come to an end" or "it is in the interest of the State that there should be an end to litigation". Finality of judgments culminates the judicial process, proscribing and barring successive appeals or challenging or questioning the judicial decision keeping in view the rigors of the renowned doctrine of res judicata explicated under section 11 of the Code of Civil Procedure, 1908. The Latin maxim "Re judicata pro veritateoccipitur" expounds that a judicial decision must be accepted as correct. This doctrine lays down the principle that the controversy flanked by the parties should come to an end and the judgment of the Court should attain finality with sacrosanctity and imperativeness which is necessary to avoid opening the floodgates of litigation. Once a judgment attains finality between the parties it cannot be reopened unless some fraud, mistake or lack of jurisdiction is pleaded and established.”
13. For the purposes of deciding application under order VII Rule 11 CPC, the averments contained in the plaint are taken to be true. In para No.3 of the plaint available at page 37 of memo of revision application the applicant has stated that the respondent No.3 will withdraw his execution application No.4/2018, thereafter he will seek sell certificate from Revenue authorities and execute Khata in his favor on payment of balance consideration. It is further averred in the plaint that the Respondent No 3 withdrawn the execution application vide order dated 13-04-2019, by claiming that the possession of the Suit Property was handed over to him. The averments in para No3 and 4 of the plaint are in conflict and contrary to the factual position as execution application was not withdrawn, executing court disposed of the execution application vide order dated 13.04.2019 on the basis of the report of Bailiff in which it is observed that the possession of the Suit Property was handed over to the Decree Holders in presence of Mukhtiar and SHO of concerned Police Station. The record does not support contents of the plaint. If the applicant had entered in agreement to sell and had purchased the Suit Property, he was required to agitate such claim before the Executing Court that parties, but the applicant did not remain vigilant during the execution proceedings. The Executing Court in its order dated 18-11-2018 directed the Revenue authorities to alter Khatta in favor of the legal heirs of Muhammad Budhal Mangi which was acted upon accordingly. From its face, agreement to sell appeared to be defective and non-enforceable as the Judgment and Decree in the earlier Suit conferred ownership rights of the Suit Property in favor of Respondent No 3 and his two sisters, that too within the knowledge of Applicant. Respondent No 3 owned the Suit Property to the extent of 50 per cent as such he was not competent to transfer the entire property.
14. The provisions of Order VII, Rule 11, C.P.C. empower the Court seized with the matter to reject the plaint at any stage of the proceedings to culminate the civil action, on the philosophy that incompetent lawsuits should be buried to their inception in order to save the precious time of the Court which may be consumed and dedicated in serious and genuine litigation. The Court may undertake this exercise suo moto, as codified under Order VII, Rule 11, C.P.C. without an application moved by the defendants. The plaint is liable to be rejected, if it appears that the suit is not maintainable being barred under the law. The Suit in hand appears to have been filed to defeat the decree passed in earlier Suit, thus the Courts below rightly rejected the plaint.
15. Honorable Supreme Court of Pakistan in the case of Pakistan in the case of Misree Khan and others Versus Abdul Ghafoor and others reported in P L D 2025 Supreme Court 24 has been pleased to hold as under:
“This Court has consistently held that the averments in the plaint must be read as a whole to determine whether it discloses a cause of action or whether the suit is barred under any law. This includes a bar created due to the lapse of the limitation period. At the stage of exercise of power under Order VII, Rule 11, C.P.C., if the averments in the plaint ex-facie do not disclose a cause of action or on a reading thereof, the suit appears to be barred under any law; the plaint can be rejected. In all other situations, the claims will have to be adjudicated in the course of the trial.”
16. Honorable Supreme Court of Pakistan in the case of President, Zarai Taraqiati Bank Limited, Head Office, Islamabad versus Kishwar Khan and others reported in 2022 S C M R 1598 has been pleased to hold as under:
It is well settled that Order VII, Rule 11, C.P.C. enlightens and expounds rejection of plaint if it appears from the averments articulated in the plaint to be barred by any law or disclosed no cause of action. The court is under obligation to must give a meaningful reading to the plaint and if it is manifestly vexatious or meritless in the sense of not disclosing a clear right to sue, the court may reject the plaint. With the aim of deciding whether the plaint discloses cause of action or not, the court has to perceive and grasp the averments made in the plaint and the accompanying documents. In case of any mix question of law and facts, the right methodology and approach is to let the suit proceed to written statement and discovery and determine the matter either on framing preliminary issues or regular trial. This Rule does not justify the rejection of any particular portion of the plaint or in piecemeal as the concept of partial rejection is seemingly incongruous to the provisions of Order VII, Rule 11, C.P.C. Astute drafting for creating illusions of cause of action are not permitted in law but a clear right to sue ought to be shown in the plaint. It is trite law that a party should not be unnecessarily harassed in a suit and if no cause of action is disclosed, the courts may not unnecessarily protract the hearing of a suit. A litigation which is in the opinion of the court is doomed to fail would not further be allowed to be used as an apparatus or stratagem to harass the litigant.
17. The discussion herein above and examination of record lends support to the assertions of Learned Counsel for Respondent No 3, that the Applicant filed a second suit, which was barred by law under section 11 of CPC as the adjudication of the rights between the parties on the same subject matter already attained finality and cannot be reopened through instant suit being closed and past transaction. Learned Counsel for the Applicant has failed to point out any illegality or perversity in the impugned orders of Courts below which required any interference by this Court.The applicant however may adopt due course of law against the respondent No.3 as available to him if so advised, if he has been duped through agreement to sell in any manner.
18. This Cour under its Revisional Jurisdiction sparingly interferes with the concurrent findings of Courts below, unless it is borne out from the record that the impugned orders suffered from jurisdictional errors, were fallacious, perverse, illegal and there was misreading or non-reading of the evidence. In the wake of above discussion, no any irregularity and perversity in the concurrent findings recorded by the Courts below has surfaced. The findings of the Court below are based on correct exposition of law, consequently this revision application fails and accordingly dismissed with pending applications if any. Parties to bear costs.
JUDGE
Asghar/P.A