1993 PLP 310 (MLD)

Date of hearing: 28th April, 1992. This civil revision is directed against the order, dated 7‑6‑1988, by which a learned Additional District Judge at Gujrat remanded the case of the respondents to the trial Court after accepting their appeal, with the direction that the trial Court should frame preliminary issues regarding the maintainability of the suit and res judicata and decide the case afresh.

2. The brief‑ facts giving rise to this revision are that petitioner No.l had purchased the suit land measuring 8 Kanals 10 Marlas situated in the area of village Gorali, Tehsil and District Gujrat, vide Mutations Nos.2691 and 2687 and Rehmat Khan, the father of the respondents, had brought a suit for pre -empting this sale. The suit so brought was decreed on 9‑12‑1975 on the ground of his superior right of pre‑emption based on tenancy. He could not deposit the pre‑emption money within the specified time and went up in appeal before the District Court which was dismissed on 11‑10‑1976. Then he filed R.SA. No.893 of 1976 which was dismissed by this Court for non‑prosecution on 11‑11‑1979. An application for its restoration was made but it was later withdrawn on 26‑10‑1981.

3. On 2‑12‑1979, petitioner No.1 applied to the executing Court for the withdrawal of the pre‑emption money if the same had been deposited by their opponent. The Civil Nazir on 3‑12‑1979 reported that the money had not been deposited and the executing Court issued a notice to Rehmat Khan. Since he had died and was succeeded by the respondents as his legal heirs, Muhammad Ashraf respondent appeared before the Court and informed that the money had not been deposited by his father.

4. The petitioner then applied for the possession of the suit land to the executing Court. During the proceedings, when the matter was referred to the Revenue Authorities, it was reported that the land was subject to mortgage charge and its possession could not be delivered unless the mortgage had been first redeemed. The petitioner then made an application for the restitution of mortgage charge and it was redeemed vide Collector's order, dated 9‑12‑1985.

5. Then the respondents filed a suit for a declaration with consequential relief of perpetual injunction 'which was dismissed on 21‑7‑1983. Then they brought another suit for permanent injunction which was dismissed on 6‑2‑1984. Their third suit was dismissed on 29‑9‑1985. Their fourth suit was for declaration and permanent injunction. It was dismissed on 11‑7‑1984. Their fifth suit was dismissed on 8‑4‑1986. Against the dismissal of this suit they filed appeal No.54‑A of 1986 which was dismissed on 18‑10‑1986 by the District Judge, Gujrat. Their review application was dismissed on 6‑6‑1987. Their sixth suit was dismissed on 4‑11‑1987. Against this dismissal they filed an appeal which resulted in the passing of the impugned order and aggrieved by it the petitioners have come up to this Court.

6. The learned counsel for the petitioners (as during the pendency of this protracted litigation petitioner No.1 alienated the suit land to petitioners Nos.2 and 3) submits that the respondents, one of whom is a Revenue Patwari, continue to bring suit after suit against the petitioner No.1 thereby making his life miserable ever since 1975 when he unfortunately happened to purchase the disputed piece of land, and they and their counsel are not bothering about the frivolity of their actions which stood clearly barred by the principles of res judicata. He has informed that three or four more suits filed by the respondents are pending in different Courts at Gujrat.

7. Learned counsel for the respondents has tried to support the remand order on the ground that the plaint of the suit could not be rejected by the trial Court under Order 7, rule 11, C.P.C. on the basis of certain averments made in the written statement because it was bound to look at the averments in the plaint which disclosed a cause of action and gave no indication to the effect that the suit was barred by the principle of res judicata or for the reason that the plaint in the previous suit was also rejected‑under Order 7, rule 11, C.P.C.

8. The above resume indicates that the respondents, without caring for the principle of res judicata as embodied in section 11 of the C.P.C., are repeatedly bringing the suits against petitioner No.1 in respect of the same subject‑matter with a view to keep him involved in reckless litigation. I have yet to see a litigation so frivolous and vexatious besides mala fide. Some litigants, on account of their typical background, do indulge in frivolous and reckless litigation against their opponents but lawyers, who ovye a duty for the fair administration of justice, are not supposed to play in the hands of such litigants and dance to their tune. In this case, I feel constrained to say that the lawyers, e who continue to draft plaints, file suits and appeals for the respondents, which they fully knew that the same were clearly barred by the principle of res judicata, have, while doing so, done a great deal in polluting the administration of justice. This is a professional misconduct. Thus, where the civil revision is accepted with costs and the impugned order is set aside, I would direct the learned District Judge, Gujrat, to prepare a list of all the suits and appeals/revisions which have been filed by the respondents or their father against petitioner No.1 in respect of the disputed property, as also the list of counsel who have been pursuing these matters and submit the same to this Bench through the Deputy Registrar (Judl.) within a month. F.R./M‑404/L Revision accepted.