2003 PLP 828 (MLD)

2. Mr. Sajjad Ali Shah, learned counsel for defendant No.7 has been heard at length in the matter. He contended that it is an undisputed/admitted position from the record available before this Court and even from the contents of plaint that the parties have earlier faced litigation on the same subject-matter before the Settlement Authorities as well as before the Civil Courts by way of two suits instituted by the plaintiffs/plaintiffs' predecessor, therefore, this third suit relating to the same dispute now instituted by the plaintiffs is barred on the principle of res judicata. He further contended that all the pleas raised in the suit have already been adjudicated by competent Courts of law in the earlier rounds of litigation between the parties, therefore, mere reference to one alleged non-verified site plan in the letter dated 20-7-1999 issued by defendant No.9 has not conferred any fresh cause of action for the plaintiffs to commence this fourth round of litigation. Referring to the site sketch of 1964 which has been questioned in the present suit by the plaintiffs. Learned counsel contended that plaintiffs or their predecessor -in-interest have never disputed the authenticity of this document or the signatures of their predecessor over it, which shows that all along the plaintiffs were aware about the existence of this document which pertains to the year 1964 thus institution of present suit in the year 2000, challenging the validity of said site plan is hopelessly time-barred. In support of his arguments Mr. Shah referred the documents relating to previous litigation between the parties before the Settlement Authorities as well as documents relating to two earlier rounds of litigation in the shape of Suits Nos.2536 of 1985 (Old No.764 of 1983) and 952 of 1997. He also placed reliance on the following cases to fortify his submissions:-- (1) PLD 1987 Supreme Court 145. (2) 1989 SCMR 2044. (3) 1994 MLD 295.

3. In reply to the above submission Mrs. Kausar Amin, learned counsel for the plaintiffs contended that no doubt private parties to this suit have a chequered history of litigation between them before the Settlement Authorities and also by way of two suits earlier instituted by the plaintiffs /their predecessor-in-interest but present suit is instituted on entirely separate and distinct cause of action based on the letter dated 20th July, 1999 of defendant No.9 which has revealed that the site plan earlier acted upon and relied by the plaintiffs was not an authentic document, therefore, principle of res judicata has no applicability to the present case. She further contended that question of limitation would also not arise as the fact about the non-signing of site plan by any officer of Settlement Department had recently come to the knowledge of plaintiffs thus period of limitation is to be computed from the said date and not from the date of execution or submission of site plan. In order to overcome the pleas of res judicata and limitation raised from the side of defendant No.7, learned counsel placed reliance on the following cases:-- (1) 1999 SCMR 2289. (2) 1994 SCMR 1725. (3) 1999 SCMR 2396. (4) PLD 2002 Karachi 408. (5) 2002 CLC 1620.

4. Chowdhary Muhammad Rafique, Additional A.-G., in his brief submission contended that the dispute involved in the present suit is entirely between private parties and no interest of official defendants is involved in the matter. He however, supported the, case of defendant No.7 with regard to rejection of plaint in the present suit.

5. I have considered the arguments advanced by the learned counsel before me, perused the whole material available on record and also gone through the case-law cited at the bar.

6. Before I proceed -to examine the contentions raised by Mr. Sajjad Ali Shah it will be advantageous to observe that provisions or Order VII, rule 11, C.P.C. are not exhaustive of all situations in which plaint can be rejected in a suit. Further reading of plaint in the suit for that purpose should not be formal but practical, meaningful, realistic and rational so as to record a correct conclusion from the pleadings rather than giving it an artificial and fanciful meaning. Moreover, to extend the true import of Order VII, rule 11, C.P.C., apart from the averments of plaint, admitted/undisputed documents such as record of previous litigation can also be looked into. The Court while doing so has to keep in mind the true spirit of this provision of law that incompetent suit should be buried at its inception without, any delay. Examining the present case on these parameters when averments of the plaint and other material available on case record are perused it reveals that before filing of Suit No.2536 of 1985 (Old No.763 of 1993) the predecessor-in interest of the plaintiffs (Haji Haroon) had litigated before the Settlement Authorities in respect of the same dispute, which is subject-matter of present proceedings, for a period of 4/5 years during which orders dated 31-8-1977, 24-12-1977, 27-6-1979, 29-10-1980 and 21-9-1982 were passed by various officers under the hierarchy of settlement laws. Copies of all these orders/documents are available on record and go to show that substantially issue involved was relating to the same building, it's site plan, compromise relating thereto and verification of area of various tenements in the disputed building. It is pertinent to mention that even in the order dated 29-10-1980 Settlement Commissioner Sindh had observed that the revision application before him was not maintainable on the principle of res judicata. After the end of litigation before the Settlement Authorities, plaintiffs predecessor-in-interest and plaintiff No.9 filed a Suit No.2451 of 1985 (Old No.764 of 1983) which was finally dismissed vide judgment dated 18-11-1991, passed by the Court of Senior Civil Judge, Karachi, South. In this suit the lower Court, inter alia, framed issues relating to the bar of jurisdiction of Civil Court, by virtue of sections 22 and 25 of Displacement Persons (Compensation and Rehabilitation) Act, 1958, and on the principle of estoppel and res judicata under section 11, C.P.C. and both these issues were answered in affirmative. This judgment was challenged in Appeal No.8 of 1982, which was also dismissed on merits vide order dated 29-3-1985, while Revision Application No.93 of 1995 filed by plaintiffs in this Court was dismissed as withdrawn. After this first round of litigation plaintiffs filed another Suit bearing No.952 of 1997 on the same subject wherein plaint was rejected under Order VII, rule 11, C.P.C. on 25-5-1999, inter alia, on the ground that the suit was barred on the principle of res judicata. A careful reading of all these documents goes to show that all along the plaintiffs/their predecessor-in-interest were well aware about the existence of site plan submitted before the Settlement Authorities in the year 1964 but neither the predecessor-in-interest of the plaintiffs not the plaintiffs ever denied or disputed the existence or, authenticity of such documents or signatures of concerned parties thereon. Learned counsel for the plaintiffs also failed to show any statutory provision under which site plan was required to be signed by some officer of Settlement Department or such non-signing has vitiated its validity. It seems that the letter of defendant No.9 dated 20-7-1999 has given a fresh life to the desire of plaintiffs to enjoy the luxury of litigation and prompted them to file yet another suit in respect of the same dispute on such pretext though the same has attained finality in the earlier rounds of litigation. From the perusal of case record it is further established that there is nothing in the matter which is to be decided afresh in the present round of litigation. Thus the present suit is barred on the principle of res judicata. In addition to it, the site plan submitted before the Settlement Authorities in the year 1964 was admittedly within the knowledge of plaintiffs and their predecessor-in-interest, therefore, an attempt in the suit to challenge such documents on one pretext or the other at this belated stage after more than 25 years is also barred by limitation.

7. Viewing the maintainability of suit from another angle, it will be seen that prayer clause-A of the plaint, which is the main relief claimed in the suit with other consequential reliefs, relates to declaration regarding previous litigation between the parties that the same were on false assumption of site plan and thus of no legal effect and not binding on plaintiffs. Suffice to observe that such relief claimed in the present suit is clearly barred under section 12(2), C.P.C. as the orders/judgments and decrees passed in the earlier rounds of litigation now challenged on the so-called ground of misrepresentation of facts can only be set aside by the Court which had passed the final order/judgment/decree, and no relief in that context can be allowed to the plaintiffs in .the present suit. Moreover, if the plaintiffs or their predecessor had any right to challenge the site plan filed before the Settlement Authority in the year 1964 then such cause of action has accrued and was available to the plaintiffs from the very beginning, therefore, they could have challenged the site plan in the earlier rounds of litigation. The letter dated 20-7-1999 of defendant No.9 has neither changed this position nor had given any fresh cause of action to them for this purpose, thus in view of the bar contained in Order 2, rule 2, C.P.C. right to seek such relief stood relinquished and same cannot be adjudicated now.

8. From the above discussion it is evident that the suit in the present form is not maintainable in law and the plaint is thus liable to be rejected. Order accordingly. S.A.K./H-95/K Plaint rejected.