1992 MLD 799 (PLP)

Sole question posed for consideration and decision in the Civil Revision filed by the plaintiff is, whether the suit filed by him was barred ,by `res judicata' as held in the Courts below.

2. Nawab Khan plaintiff owned some land, in village Thamewalli of Tehsil Mianwali. He is shown to have donated it to Jamaat Ali Shah respondent No.1 Mutation was entered to give effect to this donation. On 21‑5‑196 3, Revenue Officer rejected the mutation. Jamaat Ali Shah filed an appeal to Collector Mianwali. Sole respondent to the appeal was Nawab Khan. On 14‑10‑1963, appeal was allowed, and, land measuring 275 Kanals and 9 Marlas belonging to Nawab Khan was order to be mutated in favour of Jamaat All Shah. Consequently, Mutation No.2179 was sanctioned on 9‑6‑1964, in his favour.

3. Wife and minor daughter of Nawab Khan namely Mst. Qamar Sultan and Mst. Kaneezan respectively brought a suit against Jamaat Ali Shah and Nawab Khan to have it declared that the gift was invalid. On 6‑4‑1964, suit was dismissed by the trial Court. Its judgment is marked Exh.D

1. On 3‑12‑1974, Nawab Khan himself challenged the gift, on number of grounds, and filed a suit for its annulment against Jamaat Ali Shah, and Jehangir, to whom a portion of land‑in‑dispute measuring 7 Kanals and 7 marlas was transferred by Jamaat Ali Shah on 29‑7‑1970. Both the defendants filed separate written statements and controverted averments in the plaint. Controversial points requiring determination in the suit were settled as follows:‑‑‑ (1) Is the gift in question result of fraud and undue influence? Was plaintiff insane at the time of making the gift? Is gift void for non -delivery of possession and violation of MLR No.64? (2) Is suit within time? (3) Is suit hit by res judicata? (4) Is plaintiff estopped from suing? (5) Has plaintiff no cause of action? (6) Was the disputed gift in fact a sale? If so, what is its effect upon the suit? (7) Is form of suit not proper? If so, to what effect? (8) Is suit improperly valued for court‑fee and jurisdiction? (9) Are defendants entitled to special costs? (10) Relief."

4. After settlement of issues, suit was postponed to 16‑6‑1976 for recording evidence of the plaintiff. Thereafter, suit suffered some adjournments but evidence on issues could not be recorded. On 8‑10‑1977, despite clear opposition from the plaintiff that issue covering plea of `res judicata' could not be bifurcated from other issues relating to merits and treated as preliminary issue for decision, the trial Court opted to take `res judicata' as a preliminary issue for its decision. Parties did not choose to give oral evidence on preliminary issue. Defendants merely relied upon certified copy of the .judgment of the Civil Court in Suit No.618 of 1963 decided on ti‑4‑1904 Exh.D.1, decree‑sheet prepared in pursuance thereof Exh.D‑2 and the decision of the Collector passed in revenue appeal Exh.D.3 and closed their evidence on preliminary issue. On 9‑1‑1978, plaintiff stated to the Court that he shall not give any evidence on preliminary issue and shall rely on the defendant's evidence. On examination of Exhs. D1 to D3, the trial Court found that the suit was barred by `res judicata' and dismissed it on 12‑2‑1978. His decision was maintained in appeal on 11‑1‑1982 by learned Additional District Judge. Aggrieved of by them, the plaintiff came up in revision to this Court. It was admitted to hearing on 30‑6‑1982 and has come up for final hearing before me today. Respondent No.2, though sufficiently served has not entered appearance. He is proceeded against ex parte and appeal is heard in his absence. As far the petitioner and respondent No.1, both were represented at the hearing through their respective learned Advocates.

6. Having regard to the nature of pleadings, and the controversial points raised in them as also the issues already settled, issue of `res judicata', could not have been separated for trial as a preliminary issue before deciding other material issues in the suit. 1t is not only the feeling of the parties' learned counsel but the Court also strongly shared it that the issue relating to `res judicata' being closely linked to and inter‑dependent on other issues in the suit, could not have been picked up for decision as a preliminary issue without deciding other material points in dispute between the parties. It was in this view that the Court did not think it necessary to decide on merits if the plea of `res judicata' as it arose in the; present case. Virtually, the learned counsel appearing for the parties are agreed on remand to the trial Court for deciding of all the issues together after taking material evidence from the parties. Even if this agreement had not been forthcoming from them above course would be conducive to a fair and satisfactory adjudication of the dispute between the parties. In this view of the matter, I would accept Civil Revision, set aside the judgments and decrees impugned in it and direct trial on merits on all the issues after taking evidence from the‑ parties. There shall be no order as to costs in this Court. Records be returned to the trial Court. Parties shall appear before it on 16‑11‑1991. H.B.T./N‑39/L Revision accepted/order accordingly.