2007 PLP 680 (CLC)

MAULVI ANWARUL HAQ, J.-- For the order I propose to pass in this case, I will not be referring to the pleaded facts in much detail. Suffice it to say that on 4-12-1990 Hussain Shah the deceased petitioner filed a suit against the respondent for possession of the suit-land, detailed in the plaint. In their written statement, the respondents, inter alia, objected that the suit is barred by res judicata. Issues were framed on 24-3-1991. Issue No.1 covering the said objection was treated as preliminary. The documents were tendered by the respondents. Vide judgment and decree, dated 22-2-1992 the learned trial Court found the issue in favour of the respondents and dismissed the suit. A first appeal filed by the petitioner was dismissed by the learned Additional District Judge, Gujar Khan, on 27-3-1998.

2. Learned counsel for the petitioner contends that the judgment Exh.D.3 and particularly judgment Exh.D.4 have been misread by learned Courts below while non-suiting the petitioner. Learned counsel for the respondents has tried to support the impugned judgments and decrees.

3. I have gone through the copies of the records. Both the learned Courts below have referred to judgments Exhs.D.3 and D.4 to hold that the suit is barred by res judicata."

4. I have examined the said documents with the assistance of the learned counsel for the parties. Exh.D.3 is judgment dated 7-9-1986 passed by a learned Civil Judge, Gujar Khan. It was a suit for permanent injunction as also for mandatory injunction directing removal of a wall. Under issue No.1, it was found that Mst. Karim Khatoon was the wife of the petitioner. Under issue No.2, it was found that Haider Shah, the father of the said lady had not constructed the house. Under issue No.3 it was found that the petitioner is not the owner of the house. The suit was accordingly dismissed. A first appeal was filed against this judgment and decree. It was heard by a learned Additional District Judge, Rawalpindi camp at Gujar Khan. He observed that the petitioner was not in possession and a suit for injunction was not competent and even if he were to decree the said suit, it would be of no use to the petitioner. He concluded as follows in para. 15 of the judgment, dated 5-3-1988 (Exh. D.4. ):

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15. In view of above, in my humble view it will be mere abuse of process of Court and wastage of time to dilate upon merits of the case as even detailed discussion on merits will not put soul into dead horse of the case of the appellant for the appeal shall have to be dismissed on the sole ground that the suit for permanent injunction was not maintainable." It will, thus, be seen that ultimately the suit was dismissed only on the ground that it was not in a proper form.

5. Needless to state that it is a settled rule that a decree of the subordinate Court merges into the decree of an Appellate Court after the disposal of the appeal. It will, thus, be seen that none of the issues arising in the present suit stood finally decided. There is no denial that the present suit has been filed for possession of the house.

6. I, therefore, do find that the learned Courts below have acted without jurisdiction while non-suiting the petitioner without examining the said judgment. The finding recorded on issue No.1 is accordingly reversed. The civil revision is allowed. Both the impugned judgments and decrees are set aside. The result would be that the suit filed by the petitioner shall be deemed to be pending. Both the parties shall appear before Daud Sahi, learned Civil Judge, Gujar Khan, on 15-3-2007. The records will be requisitioned and after recording the evidence on the remaining issues the case shall be decided on merits. No orders as to costs.

7. A copy of this judgment be immediately remitted to the saidlearned Civil Judge, Gujar Khan. H.B.T./H-6/L?????????????????????????????????????????????????????????????????????????????????????? Revision allowed.