2010 PLP 1393 (CLC)

MIAN FASIH-UL-MULK, J.

Through the instant revision petition, the petitioners have called in question the validity of judgment and decree dated 11-6-2010 passed by learned Additional District Judge-I, Abbottabad and judgment and decree of learned Civil Judge-VI; Abbottabad dated 29-3-2010.

2. Petitioners filed a suit for issuance of perpetual injunction after obtaining the requisite permission from Advocate-General under section 92 of the Code of Civil Procedure against the respondents for restraining them from interfering into the property belonging to the petitioners. Respondents Nos. 1 and 2 contested the suit by filing written statement and filed application for rejection of plaint under Order VII rule 11, C.P.C. The learned Civil Judge-VI, Abbottabad after hearing arguments on application rejected the plaint vide order dated 29-3-2010. Feeling aggrieved the petitioners preferred appeal which too was dismissed by learned Additional District Judge-I, Abbottabad on 11-6-2010, hence this revision petition.

3. Learned counsel for the petitioners contended that the trial court had committed gross jurisdictional error in taking into consideration the case set up in the written statement and rejected the plaint under Order VII rule 11, C.P.C. He further argued that findings of both the courts below are in flagrant disregard of law in that the applicability of Order VII rule 13, C.P.C. was not considered wherein it is evident that rejection of plaint did not preclude presentation of fresh plaint. Reliance was placed on 2007 SCMR 945, 1989 SCMR 58, PLD 1992 SC 256 and 1993 SCMR 1686.

4. I have heard learned counsel for the petitioners and gone through the record annexed with the petition.

5. Admittedly, the petitioner had earlier instituted a suit against the respondents on 9-1-2010, which was rejected under Order VII rule 11, C.P.C. on 21-1-2010 by learned Civil Judge-III, Abbottabad. The appeal preferred thereagainst was dismissed as withdrawn on 2-3-2010. It can safely be concluded that petitioners had instituted a civil suit against the respondents regarding the same property on the same cause of action and that earlier suit has been finally decided between the parties by a competent court of jurisdiction.

6. Whether rejection of plaint did not preclude presentation of fresh suit or the findings of rejection of plaint could operate as res judicata and would not enable to re-agitate the same question through filing a subsequent suit upon the same cause of action and seeking the same relief is the moot controversy, resolution of which shall decide the fate of this case.

7. A similar question came up for consideration before the apex Court in the case of Muhammad Ali and others v. Province of Punjab and others (2009 SCMR 1079) where principles were illustrated. Answering the question whether a fresh plaint could be presented under Order VII rule 13, C.P.C., it would depend upon the nature of the order passed by the court in rejecting a plaint under Order VII rule 11, C.P.C. It was held that "no doubt Order VII rule 13, C.P.C. does contemplate that rejection of a plaint shall not of its own force preclude the plaintiff from presenting a fresh plaint, nevertheless the underlined words are important and clearly indicate that other provisions relating to avoiding multiplicity of litigation and attributing finality to adjudications could not be ignored. For instance if a plaint under Order VII rule 11, C.P.C. is rejected on the ground of the relief being undervalued or failure to affix proper court fee stamps, a fresh plaint could always be presented upon rectifying the defects within the prescribed period of limitation. Nevertheless if the plaint is rejected after proper adjudication as to the non-existence of cause of action or upon the suit being barred by law the findings could operate as res judicata and would not enable the plaintiff to re-agitate the, same question through filing a subsequent suit upon the same cause of action and seeking the same relief."

8. In the present case the plaint was rejected under Order VII rule 11, C.P.C. on two grounds; firstly; that plaintiff has got no cause of action and, secondly, the plaintiff has not obtained permission from Advocate General as required under section 92, C.P.C. A fresh plaint, even if permissible after rejection of plaint by the trial court could not be presented after the decree had been appealed against and withdrawn unconditionally. The trial court order was merged in the appellate court order and fresh suit could not enable the petitioner to wipe out its effect. In the facts and circumstances of the case both the courts below rightly rejected the plaint under Order VII rule 11, C.P.C. being hit by the principle of res judicata.

9. Consequently, this revision petition being without substance is hereby dismissed in limine. H.B.T./225/P Petition dismissed.