2016 PLP 1873 (YLR)

SYED AFSAR SHAH, J.

This writ petition is directed against the judgment dated 12.11.2012 rendered by learned Additional District Judge-II, Swabi whereby the appeal filed against the order dated 19.4.2012 passed by learned Civil Judge-I, Swabi was dismissed.

2. Briefly stated the facts of the case as spelt out from the record are that Aizazullah and one other the petitioners/ plaintiffs filed a suit against the Provincial Government and seventy others for declaration to the effect that they are owners in possession of a land measuring 08-kanals 02-marlas bearing Khasra No.3524 situated in the local limits of Mouza Shah Mansoor, Swabi on the basis of certain unregistered deeds and as such mutation No.784 dated 25/1/2000 attested in favour of defendant/respondent No. 1 is wrong, illegal and ineffective upon their rights. They have also made a prayer for possession and grant of permanent injunction to the effect that the respondents/ defendants be restrained from making interference in the land in dispute on the basis of the mutation referred to earlier.

3. When put on notice by the learned lower court, defendants/respondents Nos.1 to 3 contested the suit, inter alia, on the ground that it is hit by section 11 of the Code of Civil Procedure. During the proceedings in the case, respondents/ defendants Nos.1 to 3 moved an application for dismissal of the suit under section 11, C.P.C. on the ground that in case titled "Wali-ur-Rehman v. Abdul Samad, etc. and Saleem Khan v. Imtiaz Khan, etc.", mutation No.784 attested in favour of the Provincial Government has been declared as valid and correct. The application thus given was vehemently resisted by the petitioners mainly on the ground that the fate of mutation No. 784 is sub judice before this court as according to them they have filed a revision petition against the judgments of the courts below. However, the application was allowed by the learned lower court and similarly, appeal filed against the order was also dismissed. The petitioners have impugned the orders of the courts below by filing the instant writ petition. Arguments heard and record perused.

4. There is no cavil with the proposition that every cause once tried and finally adjudicated upon by a competent forum must be deemed to be conclusive and binding on the litigants and the parties deriving titled from them. In the present case as per version of the petitioners they were not parties to the suit where the dispute with respect to mutation No.764 was resolved. Again they have raised the plea that the fate of the said mutation is sub judice in this court because of filing of revision petition. The learned lower court in its order herein impugned has also made reference to that effect. So far as the application of the rule is concerned, it is a mixed question of law and facts and its application depends upon the proof regarding the identical nature of the subsequent matter. As is evident from the record, the learned lower court has not provided opportunity of producing pro and contra evidence to the parties for establishing their claims for resolving the controversy in issue. The non-provision of opportunity to produce evidence on their choice to the parties is evident by perusing the impugned orders. In the given circumstances of the case, the learned lower court ought to have given an opportunity to the parties to produce evidence. In this respect we are fortified by a case law. Rel. "Lal Zamin alias Lalono Zargar and others v. Asfandyar Khan and 2 others" (PLD 2012 Peshawar 75) and "Khalil Ahmad and others v. Mst. Azmat Ara (widow) and others" (2014 YLR 1782 Peshawar). Without going into the other aspects of the case, the petition is allowed, resultantly, the orders of the courts below are set aside and the case is remitted back to the trial court with the direction to frame issue on the subject matter record pro and contra evidence and thereafter decide the application strictly in accordance with law and on its own merits. ZC/54/P Case remanded.