P L D 1995 Karachi 214 n (PLP)

This Application has been filed by the appellant praying for review of the orders passed by this bench on 13‑10‑1994, whereby the appeal was dismissed. Briefly the facts, relevant for the purposes of this application are that a suit being Suit No.768/86 was instituted by the present applicant in which the plaint was rejected by a learned Single Judge of this Court vide the orders impugned in this appeal. The main ground for rejection of plaint was that earlier the present applicant had moved an application under section 20 of the Arbitration Act which was admitted and registered as Suit No.110 of 1984 and in that suit it was held that the agreement, on the basis of which the application under section 20 was moved, did not exist between the parties and, therefore, no claim on the basis of such agreement could be made. The suit 768 of 1986 was instituted for recovery of Rs.74,00,000 on the basis of claim arising out of same agreement and, therefore, the plains was rejected. An appeal vas filed before this Court which was rejected by thin Bunch vide the orders sought to be set aside in this application. The main ground for rejection of plaint is than once it has been determined, by a competent court in legal proceedings between it, that the agreement from which the claim arises did not exist, the matter stands finally concluded and it could only have been set aside in appeal or r evision. The said earlier order had not been challenged by the present applicant. In these circumstances, the claim based on such agreement in a second suit would also br barred and the provisions of "res judicata" would constructively be applicable _ The learned counsel for the applicant has vehemently argued that the provisions of section 11, C.P.C. would not be applicable to the arbitration proceedings and, therefore, the rejection of plaint by virtue of doctrine of res judicata would not be attracted to the present case. He has placed reliance on the case of Messrs Combined Enterprises v. Water and Power Development Authority, Lahore, PLD 1988 SC 39, wherein their Lordships, dealing with the case of interference with the award, had held that an award or reference could only be interfered with in the manner as laid down by sections 30 to 33 of the Arbitration Act and to that extent the provisions of C.P.C. were expressly excluded. With all respects to the Hon'ble Supreme Court, it is observed that the facts of the said case are not applicable to the present case. The learned counsel has also referred to the case of Shaikh Maula Bakhsh and another v. Fazal Din and another PLD 1982 SC

201. This case will also not be applicable to the present case as in this case the plea taken earlier was not finally adjudicated upon and, therefore, it was held that the plea taken subsequently would afford new cause of action. Learned counsel then referred to the case of Government of Sindh v. Ch. Fazal Muhammad and another PLD 1991 SC

197. In this case, the appeal was dismissed and the Hon'ble Supreme Court has observed that the person challenging the award could do so by moving an application under section 30 or section 33 of the Arbitration Act and application under section 12(2), C.P.C. would not be maintainable. The point in this matter was that when the provisions of sections 30 and 33 are available the provisions of C.P.C. would not be applicable. The learned counsel has also referred to the case of the Pan Islamic Steamship Co. Ltd. v. Messrs General Imports and Elcports Ltd. PLD 1959 Karachi 750, wherein a learned Single Judge of this Court had held that repudiation of contract does render arbitration clause nugatory. As against the submissions of the learned counsel, we are of the view that the point which is involved in the present case is as to whether the previous order passed by this Bench suffers from any error apparent on the face of record. The counsel for the applicant relying on the above case‑law has submitted that this bench has committed an error in dismissing the appeal by virtue of provisions of section 11, C.P.C. It, may he observed that the Suit No.‑768 of 1986 was based on a claim arising out of an agreement which had earlier been held to be non‑existent and, therefore, obviously no cause of action could have accrued to the plaintiff. As regards the applicability of provisions of section 11, C.P.C. it is observed that section KC.P.C. contains the provisions of res judicata and the doctrine of res judicata is not only confined to the case: falling under section 11, C.P.C., but would also apply to 7 the cases where the provisions of C.P.C. are not applicable. The constructive application of these provisions do apply in such cases as otherwise there would be no end to the litigation. Reliance may he placed on the case of Ch. Rehmat Ali v. Custodian, Evacuee Property, PLD 1966 Karachi 31, wherein a Division Bench of this Court has held that principles of res judicata, as contained in paragraph 11, C.P.C... would be applicable to the writ petition also. In another case of Dacca High Court, Tamizuddin Munshi v. Election Tribunal, PLh 196'41 Dacca 3113, a Full Bench had held that principles of res judicaia are applicable to writ petition as well. In yet another case of Dacca High Court, Sahera Bibi and others v. Abdul Motaleb and others PLD 1967 Dacca 384, a Division Bench was pleased to hold that the principles embodied in section 11 are not exhaustive and the constructive application of such principles depends on facts and circumstances of each case. In the case of Barkat v. Haji Ghulam Muhammad and another PLD 1970 Quetta 10, a Division Bench has held that successive writ petition on same facts would not be maintainable by virtue of principles of res judicata. In view of the above case‑law and the facts discussed, we are of the view that the principles of res judicata as contained in section 11, C.P.C. are not exhaustive, but can be applicable to the cases where the provisions of C.P.C. have not specifically been made applicable. In this view of the matter; we find no substance in the present application, which is accordingly dismissed. A.A./M‑2049/ Application dismissed.