P L D 2009 Peshawar 48 (PLP)

MUHAMMAD ALAM KHAN, J.

Impugned in this revision petition are the judgments and decrees of the learned District Judge/Zilla Qazi, Chitral, vide which the suit of the plaintiffs-petitioners was dismissed on the ground of res judicata.

2. Briefly narrated the facts of the case are that the plaintiffs-petitioners brought a suit for declaration with prayer for a prohibitory injunction regarding the legacy of their predecessor-in-interest. The learned trial court called for the written statement, which was submitted and out of the pleadings of the parties proper issues were framed.

3. In the meantime the defendants-respondents raised a preliminary objection that the suit is barred by res judicata and it was submitted that the suit be dismissed. The learned trial court, after hearing both the parties and perusing the record of the case, came to the conclusion that the question of res judicata as well as applicability of Order VII, Rule 11, C.P.C. could not be resorted to unless and until evidence is recorded in the case and this objection was over-ruled by the learned Civil Judge, vide order dated 4-2-2006.

4. Feeling aggrieved, Izzat Jamal etc. defendants-respondents filed an Appeal No.13/14 of 2005 before District Judge, Chitral Mr. Khalil Khan Khalil, who accepted the appeal, set aside the impugned order of the learned Civil Judge and dismissed the suit filed by the plaintiffs-petitioners vide judgment dated 2-12-2006. Hence the present revision petition.

5. I have heard both the parties at length and there is no need to recapitulate the facts of the case. Suffice it to say that neither a preliminary issue with respect to res judicata had been framed nor the parties had been afforded opportunity to lead pro and contra evidence. If the learned District Judge wanted to decide the case on preliminary issue, he ought to have framed a preliminary issue with respect to res judicata and applicability of the provisions of Order VII, Rule 11, C.P.C. and should have remanded the case back to the trial Court with direction to afford the parties an opportunity of leading evidence in support of their respective contentions. The short cut adopted by the learned District Judge, Chitral was not in consonance with the established principles of law as held in Zahir Shah and others v. Bahadar Khan and others 2001 MLD 1785, Ghulam Dastgir and others v. Mst. Mariam and others 1993 MLD 1005 and Messrs Hoechst Pakistan Ltd. v. Messrs Cooperative Insurance Societies and others 1993 MLD 2464. In view of the facts and circumstances narrated above, this revision petition is accepted and the impugned judgment and decree of the learned District Judge/Zilla Qazi, Chitral in Civil Appeal No.13/14 of 2005 decided on 2-12-2006 is set aside and that of the trial Court is restored with the direction to the learned Civil Judge to record evidence and decide that lis on merits in accordance with law. The learned trial court is further directed to expeditiously dispose of the lis. Parties are directed to appear before the learned Civil Judge, Boni, District Chitral on 16-4-2008. The office is directed to immediately send the record of the case to the quarter concerned. H.B.T./13/P Petition accepte