2019 PLP 2778 (YLR)

FAHIM AHMED SIDDIQUI, J.

By filing listed application under Order VII, Rule 11 of the Code of Civil Procedure (hereinafter referred as "C.P.C.") the defendant has questioned the entire suit filed by the plaintiff and prayed for its dismissal on the ground of res judicata.

2. For comprehension of the entire controversy between the parties, it will be appropriate to narrate the backdrop story of the present suit. The plaintiff responded to an advertisement of defendant and booked an apartment in their project namely 'Defence Regency' for a total price of Rs. 77,75,000/- including HBFC loan. He paid Rs. 33,18,000/- in instalments under receipt issued by the defendant. Subsequently, the construction work slowed down and the plaintiff came to know that there was a dispute of the defendant with a third party and they were under litigation. He got information that one NGO namely SHEHRI and others filed C.P. No. D-2150/2006 against the defendant and have challenged the NOC issued to them: and some restraining orders were operating against them. Purportedly, the petitioners claimed serious violations of the approved building plan in the said petition. The plaintiff claimed that he also had some reservations regarding the quality of construction and workmanship, as such he served a legal notice upon the defendant and also filed a complaint to KBCA. Ultimately, the plaintiff filed suit (Suit No. 901 of 2010) before this Court against the defendant for declaration, specific performance, permanent injunction, recovery of damages and possession. Nevertheless, the said suit was disposed of in terms of an undertaking given by the defendant with the following observation: "That his client (defendants) will not pursue any kind of harassment/pressure to the plaintiff for further payment towards the said apartment on the undertaking that the plaintiff will clear the backlog of outstanding instalments pertaining to his flat No. 201-A, VIP Executives Type. West Open on plot No. 13, Shaheed-e-Millat Expressway off: Korangi Road, Karachi. That the defendant will allot the apartment to the plaintiff as per plaintiff initial booking. The lease deed would be executed subsequently in favour of the plaintiff on payment of the balance amount by the plaintiff to the defendant. The defendant will not recall the allotment order of the plaintiff's flat No. 201-A, VIP Executives Type West Open on plot No. 13, Shaheed-e-Millat Expressway off- Korangi Road, Karachi."

3. Allegedly, defendant got modification in the above order behind the back of the plaintiff to the extent that he (the plaintiff) had to pay the remaining amount within three months. Nonetheless, the plaintiff served a legal notice upon the defendant to comply with the order of this Court passed in the earlier suit. The defendant apprised the plaintiff that it was not possible for them to construct the apartment in terms of initial booking due to making provision for COS; therefore, either he should accept another apartment in lieu of the previous location or may get refund of his amount paid with mark-up. In these position of affairs, the plaintiff filed the instant suit.

4. In support of the averment of the listed application, Mr. Rafique Kalwar, the learned counsel for the defendant/ applicant, addressed at length. According to him, regarding the same cause of action, same subject matter between the same party the previous suit was filed; as such the present suit is not maintainable being hit by the principle of res judicata. He submits that the plaint of the previous suit i.e. Suit No. 901 of 2010 is almost similar with the same cause of action and the relief claimed by the plaintiff. Per him. all the ingredients of res judicata are attracted to the present suit, as such the same is barred by law. He points out that the order passed in the previous suit was a consent order with a subsequent clarification that the clearance of the backlog should be done within three months. According to him, the period of three months expired on 28-09-2010 but instead of paying off his dues, the plaintiff started sending letters which were responded promptly and properly. He stresses that the contention of the plaintiff is incorrect regarding non-availability of the said flat and this fact is confirmed by Nazir in his report which manifests that Flat No. 201 is very much available. He draws attention towards the prayer clause of the instant suit by submitting that save to a negative prayer (clause-D); all the prayers are the same as mentioned in the Suit No. 901 of 2010. In response to a query, he submits that since the plaintiff did not fulfil his obligation as per consent order; therefore, his flat was cancelled and has been sold out to some other person. According to him, even if the plaintiff has not taken the plea of 'damages' in the earlier suit, he cannot take the same in the subsequent suit, as it amounts to abandoned a relief himself. In support of his contentions, he relied upon the cases reported in 1993 MLD 2138, 2006 MLD 187 and 2011 CLD 523.

5. Mr. Muhammad Ilyas Tanoli, the learned counsel for the plaintiff, assailed the listed application by submitting that the present suit is drafted and filed properly. According to him, the previous suit has nothing to do with the present suit as the subject matters of both are distinguishing. He submits that in the previous suit the relief of a specific performance was sought but in the present suit damages are claimed. He submits that the previous suit was not decided on merits but it was decided upon an undertaking given by the defendant and they themselves backed out from their undertaking.

6. I have examined the entire material in the light of valued submissions made before me. The defendant tries to make it a great point that the plaintiff had already filed a civil suit, which was disposed of upon some undertaking from the defendant. Now, it is to be regarded whether the earlier suit and the present suit are initiated from the same cause of action and having the same subject matter. The earlier suit was filed for getting possession of the flat, which was booked by the plaintiff and there was no reason for further litigation when the defendant has given an undertaking to hand over the same flat to the defendant in another tower, which was identical to the flat booked by him. It is the contention of the plaintiff that the earlier suit pertains to declaration and possession, while the present suit is for damages only. Per contra, it is contended by the defendant that the damages were also claimed in the previous suit, as such the repetition of the same is sufficient to attract the principle of res judicata. According to the learned counsel for the defendant, the plaint of a subsequent suit is to be rejected even if the earlier suit was compromised or unconditionally withdrawn. In this respect, he had taken reliance from several case-laws in respect of re-agitating the same suit again. Nevertheless. I am of the view that the situation in the present suit is entirely different to the earlier suit. In the earlier suit, instead of damages, the plaintiff has claimed compensation. It is a fact that 'compensation' and 'damages' are two distinct things and the same should not be commingled. Compensation is a word, which is merely used to express the award of monitory benefit to offset for an imponderable and intangible thing like mental agony and torture. On the other hand, 'damages' are an allowance for the injury caused by a wrongdoer. Compensation is amends for something which was taken without the owner's choice while damages are in respect of harm caused by a transgressor or malefactor. In a suit, it is not necessary, for the plaintiff to make a specific prayer for compensation, as the same comes under the discretion of court and the court may award compensation even without a prayer. Conversely, for damages, it is necessary for a party to make a specific prayer for the same.

7. It is noteworthy that in the earlier suit, no specific prayer for damages was made and the fact is that at that time; the plaintiff cannot make such prayer as the possession of the flat in question could not be given due to some litigation between the defendant and some other persons. In that scenario of the case, no question of damages would arise as such the same could not be claimed. Now, the defendant is insisting that the Flat No. 201 is very much available and Nazir has verified its existence in the building. But the plaintiff claims that the present location of the flat is entirely different from the location, which was shown at the time of booking as Flat No.

201. It cannot be denied that in addition to its interior planning, the worth and utility of an apartment in a commercial building also depends upon the floor number and its location. Purportedly, the defendant obliged to change the location of the flat as to the previous locations shown to the plaintiff; since it was a compulsory open space (COS), which was allegedly covered by the defendant and shown to the plaintiff as Flat No.

201. The plaintiff has disclosed this fact in his plaint, as such an entirely new and distinguishing cause of action has arisen in favour of the plaintiff. Accordingly, in the changed scenario, the defendant is allegedly not in a position to hand over the same apartment in the same condition and at the same location for which, he has promised at the time of booking. Meaning thereby that the defendant was not in a position to fulfil his obligation as per his undertaking; therefore, it cannot be justified for the defendant to take refuge by raising plea that the plaintiff has not fulfilled his obligation of remaining payment, as such no cause of action arose in his favour. Now, the parties are at variance as compare to earlier litigation and such diversion questions can only be settled after framing of issues and examining of witnesses.

8. In view of the foregoing discussion, I am of the considered view that the listed application is not having a palpable substance for a favourable consideration. Resultantly, by a short order dated 12.02.2019, for the reasons to be recorded later on the listed application was dismissed. These are the reasons for the said short order. ZC/T-11/Sindh Application dismissed.