2010 PLP 432 (CLC)

FAISAL ARAB, J.

The application under Order VII, rule 11, C.P.C. was taken up first for hearing. The learned counsel for defendant No.2 has argued that the plaint is liable to be rejected under Order VII, rule 11, C.P.C. as the controversy agitated in this suit has been put to .rest in Constitution Petition No.1500 of 2008 that was filed on 25-7-2008 challenging the notice to quit the land vide judgment dated 5-9-2008, wherein the Division Bench of this Court have held as follows:

"There is no denial of the fact that the petitioner had first obtained possession of the agricultural land admeasuring 184 acres from respondents Nos.2 and 3 in the year 1992 and since thereafter he is in possession on the basis of different local contracts of Landhi land, (agreements executed between the parties from time to time), and the last agreement contained the terms as reproduced above. It is specifically mentioned in the agreement that the management of contract for agricultural purposes, executed in favour of the petitioner, was only upto 30th June, 2008 and even during the subsistence of contract the AA&QMG had the authority to terminate such contract without notice or otherwise three months notice on either side was to be given. The said agreement further contemplates that the agreement will automatically terminate on orders from higher authorities; if contractor is found insolvent; if there is breach of conditions contained therein. Such terms contained in the agreement clearly demonstrate the intention of the parties that the petitioner was retained as contractor for the management of agricultural land on yearly basis at the discretion of respondents Nos.2 and

3. It is therefore, obvious that respondents Nos.2 and 3 were within their rights in serving the notice dated 8th May, 2008, and on expiry of the contract period on 30th June, 2008, the petitioner has lost his legal claim over the land except as contemplated in clause 4 of the agreement dated 1-7-2007, for which already an offer has been made to him by the respondents as per para 4 of the counter affidavit dated 6-8-2008. Besides, if the petitioner has any other claim against the respondents for commission of breach of the terms of contract or for the loss suffered by him, such factual controversies emanating from the terms of the contract, cannot be adjudicated by this Court in exercise of its constitutional jurisdiction. Rather, it will be appropriate for the petitioner to approach the civil Court for such reliefs, if he can succeed to establish his claim against the respondents. Foregoing are the reasons for our short order dated 3-9-2008, whereby this petition was dismissed in limine." After dismissal of the Constitution Petition, the plaintiff has filed the present suit on 5-9-2008, seeking following reliefs:

(a) To declare the notice dated 8-5-2008, issued to the plaintiff for termination of contract is illegal, mala fide when the defendant No.2, received payment for further period of contract on 6-6-2008, from the plaintiff therefore above notice is to be withdraw by defendants Nos.2 and 3 being illegal, mala fide and against the cannons of Justice and equity. (b) To cancel the contract dated 6-5-2008 and 18-6-2008, awarded to the defendant No.5 illegally, malafidely by defendants Nos.2 and 3 to deprive the plaintiff from cultivation of 184 acres of Army Landhi land, Karachi. (c) That the defendants Nos.2, 3 and 5 be restrained from demolishing, evicting, removing ripe crop, standing on 184 acres Army Landhi land, Karachi, tube-well, tractors, electric machines, 1000 underground pipelines and creating third party interest in the land in question till the final disposal of the suit. (d) Costs of the proceeding may also be awarded. (e) Any other relief this Honourable Court deem fit and proper as per the circumstances of the petition. The plaintiff was the lessee of the defendants, who from time to time was granted Army land for cultivation purposes on yearly basis. The last agreement was executed on 1-7-2007 and was to expire on 30-6-2008. On 8-5-2008 when two months remained, the termination notice was served upon the plaintiff and it was made clear to the plaintiff that contract shall not be renewed and the plaintiff should make necessary arrangements to hand over the land. The plaintiff however, did not hand over the land upon expiry of the term and instead he first filed constitution petition and after its dismissal filed the present suit. In the present suit, the plaintiff has again prayed that the notice dated 8-5-2008 be declared as illegal and mala fide and sought cancellation of the contract, that was awarded to defendant No.5 after the expiry of his contract. The learned counsel for the plaintiff has contended that in last paragraph of the order passed in C.P. No.1500 of 2008, the honourable Division Bench has acknowledged the right of the plaintiff to file civil suit with regard to his claim and therefore she contended that the application under Order VII, rule 11, C.P.C. is not maintainable and liable to be dismissed. I have gone through the order of the Division Bench of this Court passed in C.P. No.1500 of 2008. There is clear findings that the defendants Nos.2 and 3 were within their right in serving the notice dated 8-5-2008 and on expiry of the contract period on 30-6-2008, the plaintiff has lost his legal claim over the land except as contemplated in clause 4 of the agreement dated 1-7-2007. It was also held that if there was 'any claim of the plaintiff against the defendants Nos.2 and 3 with regard to any branch of the terms of the contract or for the loss suffered by him on account of such breach, the same cannot be adjudicated in the constitutional jurisdiction but in appropriate proceedings before the civil Court. In the present suit, the plaintiff has sought relief that the notice dated 8-5-2008 be declared as illegal and subsequent award of contract after expiry of plaintiff's contract should be declared as illegal. Hence the entire grievance pertains to termination of contract and for the consequential reliefs that emanate from such termination and nothing else. No claim for any loss has been raised in the present suit. In the case of Muhammad Chiragh-ud-din Bhatti v. Province of West Pakistan reported in 1971 SCMR 447, it was held that even if section 11 of the Civil Procedure Code may not in terms apply in support of plea of res judicata in a writ proceeding it can hardly be disputed that the general principles of res judicata are always attracted to debar the petitioner from re-agitating the controversy afresh in a civil suit, which had been put at rest by a judgment of the High Court passed in writ jurisdiction and the Civil Court could not by pass or override the orders of the High Court competently made in another jurisdiction on the same subject between the same parties. Since the scope of the present suit is within the scope of controversy that was subject matter of constitution petition that was filed by the plaintiff and the same has been put at rest, the principle laid down in section 11, C.P.C. is fully attracted to the present case and the plaint is liable to be rejected. Hence, this application is allowed and the plaint is rejected under Order VII, rule 11, C.P.C. However, for any other claim that has not been taken in the present suit to which the plaintiff may be otherwise entitled to, he may agitate the same in appropriate proceedings if permissible in law and if he is so advised. Upon rejection of the plaint the suit stands disposed of along with all other listed applications. S.A.K./Q-5/K Plaint rejected.