ORDER SHEET

HIGH COURT OF SINDH, KARACHI

      

HCA No.12 of 2010

   Date                                    Order with signature of Judge

                                               

                   Present: Mr. Justice Muhammad Ather Saeed &

                             Mr. Justice Muhammad Ali Mazhar.

 

 

Date of hearing   :         28.01.2011

Appellant             :         Qamruddin Arain

Respondents       :         Federation of Pakistan & others

 

Mrs. Kausar Anwar Siddiqui, Advocate for the appellant.

Mr. Muhammad Ashraf Mughal, Deputy Attorney General for Pakistan.     

 

Chaudhry Muhammad Rafiq Rajourvi, Advocate for respondents No.2 and 3.

 

Mr. Muhammad Munsif Jan, Advocate for respondent No.5.

 

                                                                              

Muhammad Ali Mazhar, J.:-        This High Court Appeal has been filed to challenge an order dated 17.12.2009, passed by the learned single judge of this Court on CMA No.11667/2008 under Order 7 Rule 11 CPC moved by the present respondents No.1 and 2 in Civil Suit No.1241/2008, whereby the plaint was rejected.

 

2.The brief facts of the case are that the present appellant filed the above suit for declaration, cancellation and permanent injunction with the following prayer:-

 

a.           To declare the notice dated 08.05.2008, issued to the plaintiff for termination of contract is illegal, mala fide when the defendant No.2, received payment for further period of contract on 06.06.2008, from the plaintiff therefore above notice is to be withdrawn by the defendants No.2 & 3 being illegal, mala fide and against the cannons of justice and equity.

 

b.           To cancel the contract dated 06.05.2008 and 18.06.2008 awarded to defendant No.5, illegally, malafidely by defendants Nos. 2 & 3 to deprive the plaintiff from cultivation of 184 acres of Army Landhi land, Karachi.

 

c.            That the defendants No.2, 3 & 5 shall be restrained from demolishing evicting removing ripe crop, standing on 184 acres Army Landhi land, Karachi, tube well, tractors, electric machines, 1000 under ground pipelines and creating third party interest in the land in question till the final disposal of the suit.

 

d.           Cost of the proceeding may also be awarded.

 

e.            Any other relief this Hon’ble Court deem fit and proper as per the circumstances of the petition.

 

 

3. In the plaint it was inter alia contended that the appellant/plaintiff is agriculturalist by profession and in the year 1992 he had identified Army land in Landhi for cultivation for different crops and after the approval of the defendants, the appellant was allowed to use the land for the cultivation purpose and he was awarded contract for cultivation of the land by defendants No.1 and 3. Upon settlement of terms and conditions with the plaintiff, the defendants had allowed 184 acres of land to the plaintiff, who had paid Rs.75,000/- for the year 1992. The defendants No.1 and 3 agreed to execute ‘Local Contract Landhi Land’ for the year 1992 and subsequently the contract was renewed for year to year with 10 per cent increase in contractual amount and this practice was smoothly going on up to June, 2008. The plaintiff during all the period from 1992 to 2008 was always regular in the payment obligation to the defendants and mostly he paid the installments in advance. The plaintiff was doing his work peacefully without any interruption but when on 06th June, 2008, he paid the 3rd installment per the terms of contract, the plaintiff was asked to vacate the land by 25th July 2008, without assigning any reasons. The defendant/respondent No.2, served notice of termination bypassing the relevant clause of the contract. After few days of notice of termination, some suspicious persons came at the land in question and threatened the plaintiff to vacate the land. The plaintiff approached the defendants/respondent No.2 and 3 with an offer of 10 per cent more increase in agreed rate of contractual amount. The plaintiff/appellant on receipt of notice dated 08.05.2008 approached this Court and filed a Constitutional Petition No.D-1500 of 2008 which was dismissed.

 

4. The defendant/respondent No.1 filed an application under Order 7 Rule 11 CP.PC in which it was inter alia contended that that no cause of action accrued to the plaintiff against the defendant. The plaintiff has no right or title in the suit property or any legal character as to the suit property as admittedly the suit land belongs to the Pakistan Army therefore no declaration as to any right or title of the plaintiff in the Suit property can be given. No declaration under Section 42 of the Specific Relief Act, 1877 can be sought as to determine any contractual/ pecuniary relationship between the parties or as to the breach of contract. In any event the contract between the parties has expired before the institution of the instant suit and therefore no right existed at the time of the institution of the instant suit. The plaintiff has no locus standi to seek cancellation under Section 39 of the Specific Relief Act, 1877 as admittedly there existed no contract between the plaintiff and the defendants No.1 and 2 at the time when new contract with defendant No.5 was entered into. The suit is barred under Section 56(f) and (i) of the Specific Relief Act, 1877, as the plaintiff has relied on an expired contract which cannot be specifically enforced and equally efficacious relief can be obtained, if proven, by use of other mode of proceedings. In any event,  the suit is barred under Section 42 of the Specific Relief Act as the plaintiff is able to seek further relief of damages/ compensation. The plaintiff has come to this Court with unclean hands and cannot be granted any equitable or discretionary relief sought by him.

 

5. That vide order dated 17.12.2009, the learned singly judge allowed the application with the observation that the suit is hit by res judicata and accordingly, the plaint was rejected with further observation that for any other claim that has not been taken in the suit to which the plaintiff may be otherwise entitled to, he may agitate the same in the appropriate proceedings if permissible under the law.

 

6.The learned single judge has reproduced the pith and substance of the order passed by the learned divisional bench on 05.09.2008, in CP.No.D-1500/08, on the basis of which, the above petition was dismissed with the following observation:-

 

‘‘There is no denial of the fact that the petitioner had first obtained possession of the agricultural land admeasuring 184 acres from respondents No.2 & 3 in the year 1992 and since thereafter he is in possession on the basis of different local contracts of Landhi land, (agreements executed between the parties from time to time), and the last agreement contained the terms as reproduced above. It is specifically mentioned in the agreement that the management of contract for agricultural purposes, executed in favour of the petitioner, was only up to 30th June 2008 and even during the subsistence of contract the AA & QMG had the authority to terminate such contract without notice or otherwise three months notice on either side was to be given. The said agreement further contemplates that the agreement will automatically terminate on orders from higher authorities, if contractor is found insolvent, if there is breach of conditions contained therein. Such terms contained in the agreement clearly demonstrate the intention of the parties that the petitioner was retained as contractor for the management of agricultural land on yearly basis at the discretion of respondents Nos. 2 & 3. It is, therefore, obvious that respondents No.2 and 3 were within their rights in serving the notice dated 8th May, 2008, and on expiry of the contract period on 30th June, 2008, the petitioner has lost his legal claim over the land except as contemplated in clause 4 of the agreement dated 1.7.2007, for which already an offer has been made to him by the respondents as per para 4 of the counter affidavit dated 6.8.2008. Besides, if the petitioner has any other claim against the respondents for commission of breach of the terms of contract or for the loss suffered by him, such factual controversies emanating from the terms of the contract, cannot be adjudicated by this Court in exercise of its constitutional jurisdiction. Rather, it will be appropriate for the petitioner to approach the Civil Court for such reliefs, if he can succeed to establish his claim against the respondents”.

 

7. The learned counsel for the appellant argued that the learned single judge wrongly observed that the plaint was hit by the doctrine of res judicata. In order to distinguish the contents of the suit and the earlier petition dismissed by this court between the same parties, the learned counsel argued that the suit was filed for declaration, cancellation and permanent injunction in which the contractor in whose favour, the rights were assigned subsequently was also made party but the learned single judge without appreciating the contents of the plaint, allowed the application and rejected the plaint.

 

8. All the learned counsel appearing for the respondents emphatically supported the order passed by the learned single judge and argued that the entire controversy has already been decided in the constitution petition and in order to avoid the plea of res judicata, the appellant simply added the contractor to show the distinct cause of action but in nutshell, the crux and foundation of the suit and the petition are more or less similar and identical. The learned divisional bench of this court has already held that after expiry of contract, the appellant had lost his claim over the land except as contemplated in clause 4 of the agreement.

 

9. We have examined the prayer clause reproduced in the order passed by the learned divisional bench of this court in CP.No.1500/2008 and the relief claimed by the appellant in suit No.1241/2008. The relief sought in prayer clause (a) and (b) of the memo of petition and prayer clause (a) and (c) of the plaint are same and identical on which, the learned divisional bench has already given its findings that agreement clearly demonstrates the intention of the parties that the petitioner was retained as contractor for the management of agricultural land on yearly basis at the discretion of respondents Nos. 2 & 3. It is, therefore, obvious that respondents No.2 and 3 were within their rights in serving the notice dated 8th May, 2008, and on expiry of the contract period on 30th June, 2008, the petitioner has lost his legal claim over the land except as contemplated in clause 4 of the agreement dated 1.7.2007, for which already an offer has been made to him by the respondents as per para 4 of the counter affidavit dated 6.8.2008. Besides, if the petitioner has any other claim against the respondents for commission of breach of the terms of contract or for the loss suffered by him, such factual controversies emanating from the terms of the contract, cannot be adjudicated by this Court in exercise of its constitutional jurisdiction. Rather, it will be appropriate for the petitioner to approach the Civil Court for such reliefs, if he can succeed to establish his claim against the respondents

 

10. After specific findings already given by this court in the constitution petition, it is totally unjustified to re-agitate the same claim subsequently in the suit. The claim is not only hit by the doctrine of res judicata but also amounts to reopen a past and closed transaction. In order to save himself from the barriers of res judicata, the appellant/plaintiff also made newly inducted contractor a party and sought the relief of cancellation but the fact remains that once the divisional bench of this court has already held that after expiry of contract, the appellant has no legitimate right and lost his claim upon the land in question then further impleading the newly inducted contractor in the suit in question is only a futile and vexatious exercise without any rational as no relief can be granted against him.

 

11. In the case of “Trustees of the Port of Karachi versus Karachi International Container Terminal Limited”, reported in 2010 CLC 1666, one of us (Muhammad Ali Mazhar-J) has already discussed the doctrine of res judicata in detail. The doctrine of res judicata is of universal application and in fact a fundamental concept in the organization of every jural society. Section 11, C.P.C. provides that no court shall try any suit or issue in which the matter directly and substantially in issue has already been adjudicated in a former suit between the same parties. It has been further provided that the expression "former suit" shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto. The hon’ble Supreme Court in its judgment reported in PLD 2004 SC 178 “Mustufa Kamal v. Dawood Khan” has discussed the principle of res judicata and held that finality should be imparted to judicial decisions and if a case is hit be res judicata, it may not be reopened to adjudge again. Once the matter between the parties to a suit or proceedings is decided and the decision has become final either because no appeal lies or an appeal, if filed was dismissed, none of the parties shall be allowed to canvass the same matter again in a subsequent suit or proceedings between the same parties and as a result of the application of principle of res judicata as embodied in section 11, C.P.C. all future litigation at any length between the parties must proceed on the presumption of correctness of the previous decision. Res judicata is a rule of universal law pervading in every well regulated system or jurisprudence and is based on two grounds, embodied in various maxims of the common law, the one of the public policy and necessity which makes it in the interest of State and second that there should be an end to litigation-interest republicae ut sit finis litium. The binding character of judgment pronounced by Courts of competent jurisdiction is itself an essential part of the rule of law and the rule of law obviously is the basis of the administration of justice on which the Constitution lay so much emphasis. In another judgment reported in PLD 2005 SC 511 “Muhammad Salimullah v. Additional District Judge, Gujranwala”, the hon’ble Supreme Court has held that in certain circumstances, court shall not try a suit or issue involving a matter no longer open to contest, either on a question of law or fact, by reasons of an earlier decision if the matter in issue in the subsequent suit directly and substantially is the same which was involved in the earlier litigation. The plaint in the subsequent suit can certainly be rejected under Order VII, rule 11, C.P.C. on the basis of principle of res judicata without framing issues and recording evidence but Order VII, rule 11, C.P.C. contemplates rejection of plaint only on the basis of averments made in the plaint to consider whether there is a failure of the cause of action or the suit is barred under some provisions of law but the plaint cannot be rejected under Order VII, rule 11, C.P.C. on the basis of pleas raised by the defendant in the written statement in his defence as at this stage the pleas are only contentions which are not based on the evidence.

 

12. Had the plaintiff/appellant filed only a suit for recovery on account of commission of breach of the terms of contract or for the loss suffered by him, the plaint would not have been rejected by the learned single judge being in consonance with the order passed by the learned divisional bench but since the plaintiff/appellant had claimed almost the same relief(s) as claimed in the petition with slight variation of cancellation of agreement which was not possible in view of the order passed in the petition, therefore, the learned single judge had rightly rejected the plaint being barred by the doctrine of res judicata.

 

13.The appeal was dismissed by our short order passed in court after hearing the learned counsel on 28.01.2011 and above are the reasons in support of our short order. However, it is clarified that this judgment will be without prejudice to the right of the appellant to institute appropriate proceedings in accordance with law for the recovery of amount if he has any claim against the respondents on account of breach of the contract or the loss suffered by him. This  right and remedy has already been protected and safeguarded by the learned divisional bench of this court while dismissing the petition No.D-1500/2008 on 5.9.2008.

 

Judge

 

Judge