1990 PLP 1132 (CLC)

Abdul Sattar Shaikh for Defendant No.2. Dates of hearing: 14th and 15th February, 1990. In this suit for specific performance of an agreement of sale dated 5‑4‑1987 defendant No.2 Imdad Ali has fled this application for rejection of the plaint.

2. Admittedly the suit property viz. Plot No.184‑M Block‑2, P.E.C.H.S., Karachi was owned by defendant No.l Aziz Ahmed Naqvi. Plaintiff Khursheed Jehan claimed that defendant No.1 through his attorney Saleem Akhtar defendant No.3 had agreed to sell her the suit property for Rs.11,50,000 and such agreement was executed on 5‑4‑1987. Out of the total consideration of the suit land Rs.5,00,000 were said to have been paid by the plaintiff to the Defendant No.1 through Defendant No.3 at the time of execution of the agreement dated 5‑4‑1987, while remaining amount was payable by the plaintiff within 45 days of registration of an irrevocable power of attorney in her favour. In this suit plaintiff Mst. Khursheed Jehan prayed inter alia that the Defendant No.3 be called upon to execute the sale‑deed in her favour and get it registered. She also prayed for possession of the suit plot and for damages amounting to Rs.23,00,000.

3. In his application (C.M.A. No.5374/89) the Defendant No.2 prayed for rejection of the plaint on the ground that suit of the plaintiff was barred under sections 11 and 12(2) of C.P.C. Case of the Defendant No.2 was, that under an agreement dated 4‑4‑1987 Defendant No.l had agreed through Defendant No.3 to sell him the suit property and there was such agreement. Defendant No.2 filed Suit No.623/87 in this Court for specific performance of the sale agreement dated 4‑4‑1987. Aforesaid suit was decreed on 29‑2‑1988. In said suit Defendant No.1 and the Administrator, P.E.C.H.S. were the only defendants. Subsequently plaintiff Mst. Khursheed Jehan moved an application under section 12(2) of C.P.C. for setting aside of the judgment and the decree, passed in favour of Defendant No.2 Imdad Ali, on the ground that he had obtained the decree by fraud, misrepresentation of facts and suppression of facts. Said application was however disposed of as dismissed on 17‑4‑1989 by a learned Single Judge of this Court, as the same was not pressed by Advocate for Mst. Khursheed Jehan. On the basis of said facts Defendant No.2 prayed for rejection of the plaint.

4. Mr. Abdul Sattar Shaikh, learned counsel for the Defendant No.2 argued that present suit was barred by res judicata in vices of the decree passed in favour of Dcfcndant No.2 in previous Suit No.623/87. Learned Counsel conceded that Mst. Khursheed Jehan was not party in Suit No.62a/87 but contended that in the present suit Mst. Khursheed Jchan was claiming her right through Defendant No.l Aziz Ahmed who was party in the previous suit. Learned Counsel referred to the application moved under section 12(2) of C.P.C. by Mst. Khursheed Jehan in Suit No.623/87 and argued that the order dated 17‑4‑1988 disposing of her application under section 12(2) of C.P.C. read with the judgment and the decree passed in Suit No.623/87, would bar trial of this suit. I‑earned Counsel cited the case of Jalal Din v. Mst. Mghari Bcgum and others 1984 S C M R 586 ewhere it was observed as below:‑ "It is obvious that in section 12(2),C.P.C. the word `person' and not the judgment‑debtor or his successor‑in‑interest or the word party to the suit have been used, thus it would not be permissible to import into that provision of law something which has not been mentioned therein. It appears that the law‑maker has purposely used the word `person'. Had the intention of the law‑maker been to restrict the right of filing the application under section 12(2), C.P.C. only to the judgment‑debtor or his successor‑in‑interest or a person who was party thereto then nothing was easier for the law‑maker to have said so. If the argument of the learned counsel for the petitioner is accepted then the very purpose behind enacting the aforesaid provision of law would be frustrated because then a person not being a judgment‑debtor or his successor‑in interest or a party to the suit, although his rights may have been jeopardized by the decree obtained by fraud or misrepresentation, shall be obliged to undergo the exercise of filing a suit for the purpose because a number of cases can be visualized in which fraudulent decrees are obtained in order to cast clouds on the legal rights of their opponents."

5. Mr. S.D. Rana, learned counsel for the plaintiff opposed the application vehemently and contended that the decision in Suit No.623/87 cannot bar trial of present suit because in the said suit Mst. Khurshecd Jehan was not party. In respect of the order dated 17‑4‑1988 disposing of application of Mst. Khursheed Jchan, her Counsel argued that a review petition was moved against said order and during pendency of the review application no effect can be given to the order 11‑4‑1988. The agreement dated 4‑4‑1987 in favour of Imdad Ali was alleged to have been managed fraudulently, just to avoid the agreement dated 5‑4‑1987. Learned counsel for the plaintiff argued that his review application could be consolidated with this suit and placed reliance on the case of Abdul Rasheed and others v. Muhammad Hanif and others 1985 C L C 1887 where after dismissal of plaintiff's suit the defendant instituted a spit for claiming ownership of same property while the plaintiTf filed appeal against dismissal of his suit and the view taken by a learned Single Judge of Lahore High Court was that plaintiff's suit already dismissed may be decided afresh alongwith the suit instituted by the defendant. This does not cover the point at issue, as no appeal was preferred against the judgment and the decree passed in Suit No.623/87. Learned counsel for the plaintiff relied on the case of Ghulam Nabi and others v. Muhammad Yaqoob and others P L D 1983 SC 344 where it was held that trial of a suit which was already pending at the time of withdrawal of an earlier suit was not barred. This authority is also not applicable to the present case. Reliance was also placed on the case of S. Nisar Ali v. Ferozuddin and another 1969 S C M R 933 where part of a suit was withdrawn and the other part was decreed and subsequently a fresh suit was brought in respect of the part of the suit withdrawn and it was held that the Court which allowed withdrawal of part of claim was presumed to have impliedly granted permission to bring afresh suit in respect of the claim withdrawn. In the instant case there was nothing on record to suggest that Advocate for Mst. Khursheed Jehan while not pressing the application under section 12(2) of C.P.C. desired to bring afresh application under the same provision. On the point of res judicata, learned counsel for the plaintiff cited the cases of (i) Muhammad Siddique and others.v. D.M. Tharparkar and others 1985 C L C 2885 and (ii) M/s. Pak Tobacco Company Limited v. Pak Cigarette Labour Union and others P L D 1964 Kar.

337. In latter case the view taken was that in order to support a plea of res judicata the former decision must have been given on merits of the question in issue in the subsequent litigation. In the former case a D.B. of this Court observed that bar of res judicala would not apply if previous writ petition was dismissed only on a technical point without considering merits of the case. In the present case Suit No.623/87 was not contested but decision in it was given on merits of the case. By no stretch of imagination the judgment given in Suit No.623/87 can be considered to be on technical points only. Hence the cited case does not apply. Dilating on the provisions contained by section 12(2) of C.P.C. learned counsel for the plaintiff cited the cases of (i) Mubarak Ali v. Fazal Muhammad and another 1987 S C M R 1627, (ii) Mst. Mariam and others v. Haji Ali and others P L D 19,95 Kar. 705, (iii) Karachi Dcvchopmcnt Authority v. Wali Ahmed Khan 1987 M L D

489. In (i) above the Supreme Court of Pakistan simply granted leave to appeal to consider the contention that since certain petitions for special leave were not pressed before the Supreme Court, that did not tantamount to passing of final orders by the Supreme Court of Pakistan for the purposes of moving an application under section 12(2) of C.P.C. This authority does not further the case of either party. In (ii) above the view taken was that the persons not parties to the suit could not make application under section 12 (2) of C.P.C. as the decree in the suit had no binding effect on such persons. A contrary view has been expressed by the Supreme Court of Pakistan in the case of Jalal Din v. Mst. Asghari Begum and others (1984 S C M R 586) where it was held that use of the word "person" in section 12 (2) of C.P.C. clearly indicated that right of filing of application under section 12 (2) of C.P.C. was not restricted to the persons parties to the litigation. In (iii) above the allegations of fraud and manipulation were levelled against the plaintiff and bailiff of the trial Court but such Court failed to go into the allegations and failed to hold an inquiry and disposed of the application under section 12 (2) of the C.P.C. on the basis of an order earlier passed by the lower Appellate Court in a revision application. In the circumstances, order of the trial Curt was set aside and the case was remanded to the trial Court for disposal, after holding‑a proper inquiry in the allegations made by the petitioner. In the instant case the application under section 12 (2) of C.P.C. moved on behalf Mst. Khursheed Jehan was not pressed by her advocate and in the circumstances it was not incumbent upon the Court to hold an inquiry into the allegations of fraud etc.

6. Admittedly Suit No.623/87 and the present Suit (No.697/87) relate to the same property which was admittedly owned by Aiiz Ahmed. Aziz Ahmed allegedly entered into sale agreements in respect of the same property through his attorney Saleem Akhtar. Under the sale agreement dated 4‑4‑1987 he agreed to sell the property to lmdad Ali while under the agreement dated 5‑4‑1987 he agreed to sell the property to Mst. Khursheed Jehan. It is an admitted position that suit filed by Imdad Ali for specific performance of the sale agreement dated 4‑4‑1987 has been decreed and such decree has been executed. In presence of such decree, anomalous result would follow if present suit is decreed in favour of A Mst. Khursheed Jehan for specific performance of the sale agreement dated 5‑4 1987. Even if revision petition of Mst. Khurshced Jehan is accepted, that would reopen her application under section 12 (2) of C.P.C. For the present, I am convinced that the decree passed in Suit No.623/87 would come in the way of Mst. Khursheed Jehan in the present suit.

7. It is correct that Mst. Khursheed Jehan was not party to the previous suit but she is claiming her interest through Aziz Ahmed who was party to the previous suit. In this view of the matter, I am clear in my mind that the present suit in respect of specific performance of the sale agreement dated 5_4_1987 is barred by res judicata.

8. The matter does not end here. In his suit the plaintiff has also claimed damages from the defendants to the tune of Rs.23,00,

000. Suit of the plaintiff for damages is not barred by res judicata and I hold it accordingly. Order 7 Rule 11 H of the C.P.C. can have application only if all the reliefs claimed by the plaintiff are barred by any law. If some of the claims are barred the plaint cannot be rejected partially. Consequently, I dismiss this application. A.A./K‑193/K Application dismissed.