2005 PLP 1141 (CLC)

Raja Muhammad Sohail Iftikhar for Petitioner. Sardar Jamshaid Iqbal Khakwani for Respondent. Mst. Zubeda Bibi, petitioner had executed a registered mortgage deed on 14‑1‑1991 in favour of Mian Khalil‑ur‑Rehman, respondent, regarding the house in dispute. A suit for foreclosure on the basis of that mortgage deed was filed by Mian Khalil‑ur‑Rehman, respondent in the Civil Court, which was contested by Mst. Zubeda Bibi now petitioner in; this civil revision, by filing the written statement. After taking; proceedings in the suit, a preliminary decree was passed on 27‑2‑1995 by the learned Civil Judge, Rahimyar Khan, whereby Mst. Zubeda Bibi was directed to deposit the mortgaged amount uptil 15‑7‑1993, otherwise the final decree was to follow the event. An appeal against that preliminary decree was filed by Mst. Zubeda Bibi which 'met with failure, vide order, dated 12‑10‑1996 passed by the learned Additional District Judge Rahimyar Khan. From the record, it is revealed that no appeal or revision was filed against that judgment and decree, by Mst. Zubeda Bibi, petitioner. Mian Khalil‑ur‑Rehman applied for passing of the final decree. Mst. Zubeda Bibi did not appear at that state, and the learned Civil Judge, was constrained to pass ex parte final decree on 30‑9‑1997. An application for setting aside ex parte final decree was filed by Mst. Zubeda on 18‑3‑1998. That too was dismissed on 7‑10‑1998 by the learned Civil Judge. The appeal filed by Mst. Zubeda Bibi, against that, before the learned District Judge, Rahimyar Khan was entrusted to the learned Additional District Judge, Rahimyar Khan, who vide his judgment dated 12‑1‑2004 accepted the appeal and remanded the case for decision afresh.

2. During the first round of litigation, Mst. Zubeda Bibi filed another suit in the Court of learned Civil Judge, Rahimyar Khan on 7‑5‑1999, in which Mst. Zubeda Bibi pleaded that the registered mortgage deed dated 14-1-1991 was the result of fraud and illegal, because she had not executed it. According to her, the aforesaid deed was fictitious and forged. In the aforesaid suit, defendant Mian Khalil‑ur‑Rehman appeared and filed an application under Order VII, rule 11, to which Mst. Zubeda Bibi filed written reply on 16‑6‑1999. After considering the facts of the case and the documents produced by the parties, the learned Civil Judge rejected the plaint under Order VII, rule 11, C.P.C. Against rejection of her plaint, Mst. Zubeda filed and appeal before the learned District Judge Rahimyar Khan, which came up for hearing before learned Additional District Judge, who upholding the judgment and decree of dismissal passed by the learned Civil Judge, dismissed the appeal of Mst. Zubeda Bibi. So this civil revision.

3. Learned counsel appearing on behalf of the petitioner submits that the impugned judgment had proceeded to decide the appeal against the petitioner on the basis of judgment, dated 7‑10‑1998, which judgment was set aside by the learned Additional District Judge, Rahimyar Khan on 12‑1‑2004 and the case was remanded for decision afresh, therefore, after foundation stone having slipped underneath the building, the building had to tumble down on the ground. Another limb of his argument is that without framing of issues on the point of res judicata, the plaint could not be rejected. He has relied upon Punjab Board of Revenue, Employees Cooperative Housing Society Limited v. Additional District Judge, Lahore and others 2003 SCMR 1284 to support his contentions.

4. Opposing the contentions acid submissions of learned counsel for the petitioner, the learned counsel for the respondent submits that in the suit instituted for foreclosure of mortgage deed on 17‑2‑1992 by Mian Khalil‑ur‑Rehman (respondent), Mst. Zubeda Bibi, the present petitioner had contested it and admitted the execution of mortgage deed. The difference between the parties had arisen only with regard to the amount received by Mst. Zubeda Bibi from Mian Khalil‑ur‑Rehman. According to the learned counsel for the respondent, preliminary decree passed on 27‑2‑1995 had attained finality when the learned Additional District Judge had dismissed the appeal of Mst. Zubeda Bibi on 12‑10‑1996 and no appeal or revision was preferred against that judgment and decree. It has further been argued by the learned counsel that the decision rendered on 12‑1‑2004 was with regard to final ex parte decree, passed by learned Civil Judge on 30‑9‑1997 and it had got no nexus to the earlier preliminary decree passed on 27‑2‑1995 and affirmed by" learned Additional District Judge on 12‑10‑1996, which had remained intact uptil now.

5. I have considered the arguments of the learned counsel for both the parties and perused the record of the case. From the record of the case admitted facts have been brought on the surface. It has been admitted by both the parties that in the suit for foreclosure, preliminary decree was passed on 27-2-1995 which was upheld by learned Additional District Judge on 12-10-1996. Mst. Zubeda Bibi by her own act and conduct, let this preliminary decree become final in 12-10-1996, and was not assailed by her in any higher Court uptill now. The acceptance of appeal on 12-1-12004 by the learned Additional District Judge, therefore, would not have any impact upon the preliminary decree passed on 27-2-1995 by the learned Civil Judge. The matter had been remanded to examine the validity of final ex parte decree passed on 30-9-1997, and not the preliminary decree passed earlier, therefore, after these admitted facts no other evidence, oral or documentary, was required to be produced by the parties in the case. In these circumstances, for mere technicalities sake, the parties cannot be allowed to probate and reprobate, to blow the hot and cold in the same breath. The petitioner having accepted the execution of the mortgage deed in the suit for foreclosure and the decree having been 7-2-1995 by learned Civil Judge, cannot be allowed to be flouted through filing of a fresh suit, taking contradictory plea in it against the admitted facts. The learned counsel appearing on behalf of the petitioner is not able to deny these facts, even today. There must be an end to the litigation. There are the settled principles and norms of law. The second suit being malicious and vexatious to put the parties into vicious circle of another protracted agonizing litigation, cannot be permitted merely to satisfy the mind of the petitioner simply for technicalities. As regards the ruling/authority relied upon by the learned counsel for the petitioner, suffice it would be to say that every case has to be examined on its own facts. When there are admitted facts, then there is no need of any evidence to be elicited from the parties, and it is not necessary that framing of issues should be undertaken and the parties should be allowed permission to produce evidence. The facts are clear in this case and it need no further clarification, amplification or adjudication. I have got every respect for the ruling referred to by the learned counsel for the petitioner but with great respect, I would say that it is not applicable to the facts and circumstances of this case. With these observations, the civil revision is dismissed in limine. H.B.T./Z‑84/L Revision dismissed.