2004 PLP 1100 (CLC)

TALAAT QAYUM QURESHI, J.

Haji Mir Alam Shah plaintiff, the predecessor of present petitioners, filed Suit No.284/1 on 29-9-1996 against Adam Khan and 14 others, respondents/defendants, in the Court of learned Civil Judge, Takht Bhai seeking declaration to the effect that he was owner in possession of land measuring 129 Kanals, 7 Marlas situated at Mauza Pir Sado Tehsil and District Mardan, more particularly described in the heading of the plaint and that Mutation No.1063 attested on 13-9-1941 as well as Mutation No.3813 attested on 25-1-1979 in favour of the respondents were wrong and illegal, hence ineffective upon their rights. Before filing the written statement the respondents/defendants filed an application on 15-1-1998 under Order 7, rule 11, C.P.C. for rejection of the plaint which application was resisted by the plaintiff by filing written reply. The learned trial Court after hearing the learned counsel for the parties dismissed the said application vide order, dated 8-6-1998. Feeling aggrieved with the said order, the respondents/defendants filed Appeal No. 13 of 1998 in the Court of learned Additional District Judge, Mardan which was accepted, the order passed by the learned trial Court was set aside and the plaint was rejected vide judgment/order, dated 22-5-1999. Being not contented with the judgment/order of the learned Appellate Court, the petitioners filed C.R. No. 144 of 2000 which was converted by this Court into Writ Petition in hand (No, 1264 of 2002).

2. Mr. Jan Muhammad Khan, the learned counsel representing the petitioners, argued that the learned trial Court had rightly dismissed the application for rejection of the plaint because it had neither framed any issue as to whether the suit filed by the plaintiff was hit by the principle of resjudicata nor the parties were invited to lead evidence in support of their claims. Reliance in this regard was placed on Punjab Board of Revenue Employees Cooperative Housing Society Limited v. Additional District Judge, Lahore and others 2003 SCMR 1284.

3. It was also argued that the previous suit was withdrawn as per compromise effected between the parties but the respondents later on did not act upon the compromise, hence the petitioners had to file fresh suit which was not barred under any law.

4. On the other hand, Miss. Nusrat Yasmin, the learned counsel representing the respondents, argued that the predecessor of petitioners, namely, Mir Alam Shah had earlier filed Suit No. 119/1 on 5-7-1976 against Mukarram Khan, the predecessor of respondents but the same was dismissed as withdrawn on 16-4-1978. Then he filed second Suit No.712/1 on 23-1-1980 against Adam Khan and others, the present respondents which too was dismissed as withdrawn vide order, dated 7-12-1982. Thereafter, he filed third Suit No.344/1 on 31-7-1990 which too was withdrawn due to compromise on 7-3-1991. All the suits including the suit in hand were between the same parties and over the same property, therefore, the present Suit (No.284/1) brought on 29-9-1996 was not only hit by Order 7, rule 11, C.P.C. but was also hit by order 23, rule 1, C.P.C. and the principle of resjudicata. The learned Appellate Court has rightly appreciated the above position and the impugned judgment and decree needs no interference: Reliance in this regard was placed on 1996 MLD 1409, 1999 YLR 991, 2000 CLC 1524; 2001 MLD 440, 2001 YLR 736, 2002 SCMR 338, PLD 2001 SC 325 and PLD 1983 Pesh. 100.

5. We have heard the learned counsel for the parties at length and perused the record.

6. There is no cavil with the dictum laid down in the judgments cited by the learned counsel for the respondents at the. Bar that if an earlier suit on the same subject-matter was withdrawn without seeking permission to file fresh suit on the same subject; subsequent suit on the same subject-matter was neither competent nor maintainable.

7. There is also no dispute that the plaintiff has to include whole of his claim to which he was entitled in every suit filed by him but once any claim was omitted/relinquished under Order II, rule 2, C.P.C., he could not sue in respect of relinquished claim.

8. Perusal of the available record shows that the parties and their predecessors earlier too had litigations between them. Neither all the pleadings of the parties showing that the old litigations were over the same subject-matter and between the same parties nor all the judgments/decrees passed therein were placed on record. Had the learned trial Court on receipt of application under Order 7, rule 11, C.P.C, framed issue as to whether the suit filed by the petitioners was C hit by the provisions of Order, 23, rule 1(3), C.P.C. Order 2, rule 2, C.P.C. and the principle of constructive res judicata and invited the parties to lead evidence, they would have placed on record all the judgments/decrees passed in the previous litigation and the said material would have provided foundation for the learned Courts below to resolve these issues but the Appellate Court had failed to appreciate the said position. In the recent judgment reported as Punjab Board of Revenue Employees Cooperative Housing Society Limited v. Additional District Judge, Lahore and others 2003 SCMR 1284 wherein it was held: "Apart from this, the judgments passed by the Courts below in this case are perfectly in accordance with law for rejection of the plaint was sought on the ground that the matter was barred by res judicata and it has been rightly held that the same could be decided after framing regular issue and leading of evidence.",

9. Keeping in view the dictum laid down by the, august Supreme Court of Pakistan in the above quoted judgment, we allow the writ petition in hand, set aside the judgment and decree, dated 22-5-1999 passed by the learned Additional District Judge, Mardan and restore that of the learned trial Court Takht Bhai, dated 8-6-1998. There shall be no order as to costs. Since the parties have been locked up in litigation for the last so many years, the learned trial Court is directed to decide the above mentioned issue within a period of three months positively. None of the parties be given any unnecessary adjournment. The office is directed to remit the record back to the said Court within a week positively. H.B.T./70/P Petition allowed