1992 PLP 771 (MLD)

The appellant in this IInd Appeal have challenged the judgment and decree, dated 10‑8‑1983 and 18‑8‑1983 respectively passed by the learned IInd Additional District Judge Nawabshah in Civil Appeal No.29 of 1979 whereby he set aside the judgment and decree, dated 30‑4‑1979 and 17‑5‑1979 respectively passed by the Senior Civil Judge Nawabshah decreeing Suit No.58 of 1977 filed by the respondent and dismissing Suit No.23 of 1978 filed by the appellant. Briefly stated, the facts leading to filing this appeal are that the appellants claim to be owners of agricultural land bearing Survey Nos.67/1, 268/1, 23, 70/2 and measuring 21‑15 Deh 28 Dad Taluka Nawabshah leased out w.e.f. September, 1971 to one Muhammad Hashim for a period of one year i.e. Kharif 71‑2 Rabi 71‑72 at the rate of Rs.50 per acre, as per leased deed, dated 25‑8‑1971. After the expiry of lease period, the appellants asked the said lessee to hand over the possession of the land but he adopted delaying tactics and refused to hand over the same. It is alleged by the appellants that the said lessee Muhammad Hashim incited his nephew Mir Hassan to set up a false claim over the said land through his son Muhammad Ismail respondent who was minor at that time and a forged agreement was made which was alleged to have been executed by the appellant No.1 with the minor through his father. Subsequently the appellants filed the said Suit No.23/73 against the said Muhammad Hashim for possession and mesne profit and got a Receiver appointed over the said land. In the said suit respondent got himself impleaded as defendant. The respondent as counter blast also filed Suit No.48/58 of 1973‑1977 for specific performance of agreement of sale dated 24‑8‑1972 against the appellants. In the said suit it was alleged by the respondent that the appellant No.l had entered into the said agreement with the respondent on his own behalf as well as on behalf of appellant No.2 and received a sum of Rs.7,962.50 of the time of execution of the agreement and the balance Rs.7,000 was payable on 1‑1‑1973 when the sale‑deed was to be executed and registered in favour of respondent by the appellant. It was further averred that the respondent had taken possession of the land from the said lessee Muhammad Hashim in April, 1973 since when he continues to be in possession thereof. Upon service of notice by respondent to the appellant to perform the contract, the appellant approached the father of the respondent and assured him that they will execute sale‑deed in favour of the respondent in September, 1973, for which reason the respondent remained silent. However, when he came to know that the appellant mala fide had filed suit for possession and mesne profit against the said Muhammad Hashim, he filed the said suit against the appellant. . Learned trial Court consolidated both the suits and framed common issues which are as follows:‑‑‑ "(1) Whether the Suit No.48 of 1973 is not maintainable? (2) Whether Suit No.48 of 1973 is not in proper form? (3) Whether Suit No.48 of 1973 is barred by Law. (4) Whether Ghiyasuddin on his own behalf and on behalf of Mst. Buland Akhter executed agreement of sale in respect of suit land in favour of the son of Muhammad Ismail? (5) Whether Ghiyasuddin and Mst. Buland Akhter received consideration amount? (6) Who is in possession of suit land? since when and in what capacity? 1"` (7) What‑should the decree be?" Issues Nos.1 to 3 were not pressed by the Advocates for the parties. Issues Nos. 4 and 5 were answered against the respondent. With regard to Issue No.6, it was held by the trial Court that the possession of the land was with the respondent. Mr. Hassan Mahmood Baig learned counsel for appellants has raised a preliminary objection that by preferring only one First Appeal against a common judgment in two suits, the decree in the other suit not appealed against has attained finality and the decision therein would operate as res judicata with the result that any decision by the First Appellate Court in respect of the other suit will be of no consequence at all. It is conceded by Mr. Ahmed Khan Barakzai, learned counsel for the respondent that the issues between the parties in both the suits were directly and substantially the same but the acceptance of the appeal in one suit has the effect of setting aside the common judgment in both the suits. Mr. Hassan Mehmood Baig, learned counsel for appellants first referred to Jamini Khata v. Aswini Kumar PLD 1961 Dacca 344 wherein it was held: "Decree passed in different proceedings do not lose their separate entity and become merged into one consolidated decree simply because the appeals preferred from them are heard together and disposed of by one single judgment for the sake of convenience. Hence the impremature of finality attaching to each individually must be taken. to remain intact unless and until that has been varied or reversed in an appeal taken against it specifically. In other words the appellate decision will operate and hold good only with respect to the particular decree or decree actually appealed against and no more." Next reliance was placed by the learned counsel on Zaharia v. Dehia and others ILR (XXIII) 1911 Allahabad 51, a decision of a Full Bench of Allahbad High Court. Briefly stated two persons filed separate suits claiming a right of pre‑emption prefrential to that of other. The person losing the case appealed from the decree in his own suit, but not from the decree in the suit brought by the other. It was held that the decree passed in the other suit became final before the appeal was decided. In another case of Allahabad High Court namely Lal Muhammad v. Mst. Shakur and others ILR (XVIII) 1913 Allahabad 867, the question of divorce was involved in two suits but the wife preferred one appeal in one suit only it was held that the question as to divorce had come final by res judicata and could not be determined again. Learned counsel for the respondent Mr. Ahmad Khan Barakzai on the other hand has placed strong reliance on Allah Bakhsh v. Mst. Shamshad Zohra and others 1985 SCMR

959. The facts of the case are that the petitioner sought restitution of conjugal rights and the wife sought dissolution of marriage. The petitioner's suit was decreed and the wife's suit was dismissed who filed only one appeal questioning the common judgment to both the cases. The appellate authority dismissed the appeal on merits as well as for the. reason that only one appeal was filed and not two. The orders of the two Courts were challenged in a Constitutional petition before the High Court which remanded the case on the ground that the two Courts had misdirected themselves in exercising the jurisdiction. The Supreme Court refused to grant leave to appeal against the 'order of remand passed by the High Court and held that as provisions of C.P.C. other than sections 10 and 11 are inapplicable to the proceedings, the technical objection of filing of a single appeal against a consolidated judgment when it was manifestly directed against the decision in both, would not stand in the way of adjudication in accordance with law". What is distinguishable here is that by virtue of section 17(1) of the West Pakistan Family Courts Act (XXXV of 1964) "Save as otherwise provided by or under this Act, the provisions of Qanun-e-Shahadat and the Code of Civil Procedure except sections 10 and 11 shall not apply to proceedings before any Family Court." But here the suits filed by the parties against each other were neither family suits nor were they tried by Family Courts but were suits of Civil nature before a Civil Court and the Code of Civil Procedure is applicable to them in full force. I am, therefore, of clear view that Suit No.58 of 1977 which was filed by the appellant has conclusively determined the rights of the parties with regard to all the matters in controversy as no appeal was preferred against the judgment and decree passed in it by the respondent. Besides the decision therein made also operates as res judicata against the decision subsequently made by the learned IInd Additional District Judge, Nawabshah' in the said First Appeal No.29 of 1979 filed by the respondent against which the present IInd Appeal was filed by the appellant. Since the impugned judgment cannot co‑exist alongwith the judgment passed by the learned Civil Judge is Suit No.58 of 1977, no useful purpose will be served to discuss the merits of the case and other issues. Hence, this second appeal succeeds and accordingly the impugned judgment dated 10‑8‑1983 is set aside but with no order as to costs. K.B.A./G‑279/K Appeal accepted.