2010 PLP 1933 (YLR)

MRS. SYEDA TAHIRA SAFDAR, J.

The petitioners being aggrieved of order dated 11-3-2006 of Qazi Pasni whereby their suit is dismissed being barred under section 11, C.P.C., while appeal filed by them was also dismissed by Majlis-e-Shoora through order dated 11-8-2006 preferred present petition with prayer for setting aside of both the orders while remanding of the case for decision on merits. It is their contention that the trial Court once decided the question of res judicata through order dated 23-1-2006, but while deciding application under Order I Rule 10, C.P.C. the question of res judicata was again decided and suit was dismissed through order dated 11-3-2006. The appeal filed against said order was also dismissed through order made on 11-8-2006. Both the orders are illegal and void. Once question of res judicata is decided by the trial Court, the same question cannot be taken twice by the Court, nor the suit can be dismissed that too without recording of evidence. As per record during pendency of suit, an application under section 11, C.P.C. was filed, which was decided by the trial Court through order made on 23-1-2006, wherein, the learned trial Court held that as the applicants have not filed any document from which it can be ascertained that a suit filed previously in respect of property in dispute, in present case, has already been decided, nor any copy of judgment is attached. The application was dismissed being without merits. But thereafter, some other applications for impleading parties were filed while deciding the same through order made on 11-3-2006 the trial court arrived to the conclusion that during course of arguments, none of the parties have denied that in present and previous suits, the property in question was the same and that the other suit is pending before Court of Majlis-e-Shoora Turbat, as such two suits in respect of same disputed property are not maintainable. The trial Court while rejecting the plaint directed the petitioners to approach the Court in previously instituted suit for impleading them as party. Feeling aggrieved of the same they preferred appeal before Majlis-e-Shoora, which was also dismissed through order dated 11-8-2006. The perusal of record reveals that the point in respect of maintainability of suit being hit by section 11, C.P.C. was already decided by the trial Court through order dated 23-1-2006 while recorded its findings in 'negative, therefore, the same Court thereafter has no jurisdiction to again entertain the same question and take altogether a different view. The second order of the trial Court dated 11-3-2006 is not only erroneous, rather illegal being made without jurisdiction. The learned Appellate Court did not consider this fact that same was specifically agitated before the Appellate Court. Both the Courts made an error, which is required to be rectified. In the circumstances without going into further merits of the case, the petition is accepted, impugned orders, dated 11-3-2006 of Qazi Pasni and dated 11-8-2006 of Majlis-e-Shoora Mekran at Turbat are hereby set aside. The suit stands restored and remanded to the trial Court to conduct proceedings in accordance with law. No orders as to costs. H.B.T./75/Q Petition accepted.