2016 PLP 133 (YLRN)

S. 4

Suit for administration, partition and permanent injunction

Intervener

Restitution, doctrine of

Res judicata, principle of

Applicability

Applicant was an intervener who sought review of order passed with regard to suit property and had sought restitution on the plea that suit property was sold to him

Validity

Contention of intervener about purported sale of suit property to him by defendant on the basis of alleged sale agreement (dated 05-09-2011) had already been decided by order (dated 08-10-2013) which was never overruled by appellate fora

Plaintiff side disputed such stance of intervener

Earlier Order (of 21-03-2014) whereby intervener filed a review application under O. XLVII, R. 1, C.P.C., was also dismissed

Relinquishment deed had not been registered in terms of S.17 of Registration Act, 1908 and therefore, it was devoid of any legal sanctity as enjoined by S.49 of Registration Act, 1908

Stance of intervener was self-defeating as in his earlier application (seeking review of order dated 04-01-2014) which was dismissed by order (dated 21-03-2014), intervener stated that his alleged portion of 130 square yard was away from suit property

Such assertion of intervener that too on oath had spoken about credibility and showed that he was not even sure about physical location of suit property

None of the earlier orders passed by High Court had been either overruled or set aside therefore, principles of S.144, C.P.C., were not applicable

Although, S.11, C.P.C., relating to principle of res rudicata applied to a final decision given in a suit yet there were exceptions to its applicability to interlocutory orders

Defendant had ousted his real mother from suit property and even after seven years of filing of the suit, lady members/female legal heirs were being continuously deprived of their respective shares in inheritance

In suit for administration it was just and proper to pass a preliminary decree in terms of O. XX, R. 13, C.P.C.

High Court appointed official assignee as administrator to take further proceedings in the matter and directed the official assignee to dispose of suit property and distribute sale proceeds among legal heirs

Application for restitution was dismissed in circumstances. [Paras. 5 and 8 of the judgment] 2015 CLC 1306; PLD 1964 Dhaka 177; PLD 1999 Quetta 56 and 23 Madras 306 ref. 2003 CLC 189 rel. Asghar Bangash for Plaintiff. Maroof Hussain Hashmi for Applicants/Objctors. Yaqoob Nasir for Applicants. ORDER MUHAMMAD FAISAL KAMAL ALAM, J.

Out of these eleven (11) Applications (C.M.As.), except for C.M.A. No.6107/201 (Contempt Application against Defendant No.1), C.M.A. No.5399/2014 (for passing the preliminary decree) and C.M.A. No.1064/2015 (directions to Nazir for implementing the order dated 18.12.2014), which are filed by the Plaintiff, the rest have been preferred by the Applicants/Interveners namely, M/s. Shabbir Ahmed and Saeed Ahmed. The gist of contention/stance as mentioned in these CMAs of above named persons can be categorized into two categories; first category is of above named Shabbir Ahmed, who has allegedly purchased 130 square yards, which is a portion of the suit property (1237-A, M-II/E), admeasuring 1250 square yards, Street No.77, Sher Shah, Karachi from Defendant No.1 (Islamuddin, one of the legal heirs) and as per said Shabbir Ahmed that for remaining portion of the suit property the present Plaintiff and Defendants who are legal heirs/co-owners have agreed to sell out the same to him. The second category of claim of above named Saeed Ahmed is that the Plaintiff has allegedly misled the Nazir of this Court and instead of sealing the above suit property, the property bearing No. M-II-E-A, 14-C, Sher Shah, Karachi, purportedly belonging to said Saeed Ahmed has been sealed, which is causing immense hardship to him.

2. In the earlier order dated 08.10.2013, controversy between the said Applicant/Objector Shabbir Ahmed and the Parties (Plaintiff and defendants) of the present Suit has been laid to rest, inter-alia, by determining that the defendant No.1 had no right to sell the suit property on the basis of a purported Sale Agreement dated 05.09.2011 and consequently earlier C.M.A. No.278/2012 filed by the said Applicant/Intervener Shabbir Ahmed, under Order I, Rule 10 of C.P.C., for becoming party in the present suit, was dismissed and it was also held that the said Applicant/Intervener Shabbir Ahmed cannot become a party in the instant Suit being the Suit for Administration amongst the legal heirs and thus the above Applicant/Intervener is a stranger as far as present cause is concerned. Subsequently, the Applicant/Objector Shabbir Ahmed filed a High Court Appeal No.129 of 2013 against the order dated 08.10.2013, which was also dismissed by the learned Division Bench of this Court while maintaining the findings of the learned Single Judge. Subsequently, it is also a matter of record that the above named Shabbir Ahmed had unsuccessfully agitated his claim before the Honourable Supreme Court, which was pleased to dispose of his Civil Petition No.2179 of 2014 by the order dated 13.08.2015, with the observation that, inter alia, a separate suit may be preferred with regard to such a claim.

3. In the intervening period, both the above named persons have instituted two different suits having Nos. 1055 and 1056 of 2015 against the present Plaintiff and Defendants/legal heirs, which are pending adjudication in the Original Side of this Court.

4. C.M.A. No.14938 of 2015 is filed by Shabbir Ahmed (Applicant/Intervener) under section 144 of C.P.C. seeking restitution to the effect that the Suit property be de-sealed and possession whereof be handed over to the said Applicant/Intervener - Shabbir Ahmed. Learned counsel for the said Shabbir Ahmed has tried to justify filing of the said C.M.A. by arguing that since new facts have surfaced, which warrant that his client (Shabbir Ahmed) position in respect of the suit property should be restored. In support of his contention he has placed on record three documents, viz. (i) sale agreement dated 5.9.2011), (ii) Irrevocable Deed of Compromise dated 30.08.2011 and (iii) Deed of Compromise dated 30.08.2011. As per plea of Applicant-Shabbir Ahmed, the last two documents of same date preceded the alleged sale agreement. To substantiate his stance, the learned counsel for the Applicant/Intervener-Shabbir Ahmed has relied upon following case law. i. 2015 CLC Page 1306 ii. PLD 1964 Dhaka Page 177 iii. PLD 1999 Quetta Page 56

5. The contention on behalf of the Applicant/Intervener - Shabbir Ahmed about purported sale of Suit property to him by the present Defendant No.1 on the basis of above alleged Sale Agreement dated 05.09.2011 has already been decided by the above order dated 08.10.2013, which was never over ruled by the Appellate Fora. Secondly, the Plaintiff side has disputed the above stance of the Applicant/Intervener - Shabbir Ahmed. Thirdly, the earlier order of 21.03.2014, whereby above Applicant (Shabbir Ahmed) filed a Review Application under Order XLVII, Rule 1 (of C.P.C.) was also dismissed with an observation that under the purported sale agreement (of 05.09.2011), no right has accrued in favour of the said Shabbir Ahmed. Fourthly, the Applicant/Intervener-Shabbir Ahmed has attempted to validate the above purported Sale Agreement dated 05.09.2011 on the basis of the documents at Sr. No.(ii) and (iii) (supra). The document at Sr. No.(ii) above is the Deed of Compromise (dated 30.08.2011) amongst the present Plaintiff and the Defendants Nos.1 and 4, whereby the present Plaintiff Mst. Zarina and the Defendant No.4 Mst. Farida being sisters have given their "No Objection" with regard to the transfer of the suit property in the name of present Defendant No.1, whereas the document at Sr. No.(iii) is the Deed of Compromise (of same date, that is, of 30.08.2011), which is an Annexure "C" (Page 25, Second Part) of the above C.M.A. No.14938/2015 is in the nature of Relinquishment Deed, as also evident from its Paragraph-04, but admittedly this document has not been registered in terms of section 17 of the Registration Act, and, therefore, it is devoid of any legal sanctity, as enjoined by section 49 of the Registration Act. Fifthly ex-facie stance of said Shabbir Ahmed is self-defeating, as, in his earlier C.M.A. No.1555 of 2014 (seeking review of order dated 04.01.2014), which was dismissed by the order dated 21.03.2014, the said Intervener/Applicant in paras 10 and 11 of such application states that his aforesaid alleged portion of 130 Square Yards is away from the suit property. This assertion of said Applicant Shabbir Ahmed that too on oath speaks about the credibility and shows that he is not even sure about the physical location of the suit property, which is a further ground to reject his claim. "The principle of the doctrine of restitution is that on reversal of a judgment law raises an obligation in the party to the record who received the benefit of erroneous judgment to make restitution of the other party for what he had lost...... That obligation it is duty of the Courts to enforce unless it is shown that restitution would be clearly contrary to the real jurisdiction of the case." Moreso, the other Judgments also reiterate the same principle that if by an act of the Court a party has lost the possession of the property to which he is entitled to (emphasis added), can ask for restitution of the same after the decree and order on the strength of which he has been dispossessed reversed or otherwise comes to an end as being null and void. Conversely, in the present case none of the earlier orders passed by this Court have been either over-ruled or set-aside, therefore, the principle of section 144 of C.P.C. is not applicable to the case at hand of said Applicant/Intervener-Shabbir Ahmed and consequently the C.M.As. of Shabbir Ahmed are dismissed being meritless. Although section 11 of Civil Procedure Code (Act V of 1908) relating to the principle of Res judicata applies to a final decision given in a suit, but there are judicial pronouncements, whereby by creating exception the principle of Res judicata has been made applicable to the interlocutory orders (deciding applications) even. "The dictum laid down in the case of Arjun Singh (supra) by Indian Supreme Court is that (interlocutory) orders are certainly capable of being altered or varied by subsequent applications for the same relief, though normally only on proof of new facts or new situations which subsequently emerge. As they do not impinge upon the legal rights of parties to the litigation. The principle of res judicata does not apply to the finding on which these orders are based, though if applications were made for relief on the same basis after the same has once been disposed of, the Court would be justified in rejecting the same as an abuse of the process of Court." "(10). That the question of fact which arose in the two proceedings was identical would not be in doubt. Of course, they were not in successive suits so as to make the provisions of section 11 of the Civil Procedure Code applicable in terms. That the scope of the principle of res judicata is not confined to what is contained in section 11 but is of more general application is also not in dispute. Again, Res judicata could be as much applicable to different stages of the same suit (underlining is mine for emphasis) as to findings on issues in different suits. In this connection we were referred to what this Court said in Satydhan Ghosal v. Sm. Deorajin Debi, (1960) 3 SCR 950: AIR 1960 SC 941 where Das Gupta, J. speaking for the Court expressed himself thus: "The principle of res judicata is based on the need of giving a finality to judicial decisions. What it says is that once a res is judicata, it shall not be adjudged again. Primarily it applies as between past litigation and future litigation. When a matter

whether on a question of fact or on a question of law

has been decided between two parties in one suit or proceeding and the decision is final, either because the appeal was taken to a higher Court or because the appeal was dismissed, or no appeal lies, neither party will be allowed in a future suit or proceeding between the same parties to canvass the matter again....The principle of res judicata applies also as between the two stages in the same litigation to this extent that a Court, whether the trial Court or a higher Court having at an earlier stage decided a matter in one way will not allow the parties to re-agitate the matter again at a subsequent stage of the proceedings." Mr. Pathak laid great stress on this passage as supporting him in the two submissions that he made: (1) that an issue of fact or law decided even in an interlocutory proceeding could operate as res judicata in a later proceeding, and next (2) that in order to attract the principle of res judicata the order or decision first rendered and which is pleaded as res judicata need not be capable of being appealed against." "(13) It is needless to point out that interlocutory orders are of various kinds; some like orders of stay, injunction or receiver are designed to preserve the status quo pending the litigation and to ensure that the parties might not be prejudiced by the normal delay which the proceedings before the Court usually take. They do not, in that sense, in any manner the merits of the controversy in issue in the suit and do not, of course, put an end to it even in part. Such orders are certainly capable of being altered or varied by subsequent applications for the same relief, though normally only on proof of new facts or new situations which subsequently emerge. As they do not impinge upon the legal rights of parties to the litigation the principle of res judicata does not apply to the findings on which these orders are based, though if applications were made for relief on the same basis after the same has once been disposed of the Court would be justified in rejecting the same as an abuse of the process of Court." As already mentioned above that since earlier orders passed in the proceedings have not been over ruled or set-aside in appeals thus the principle of Res judicata is of relevance here.

6. Since all the above documents were placed on record as Annexures on behalf of the Applicant/Intervener - Shabbir Ahmed with his above listed C.M.A. No.14938/2015, therefore, it has become necessary to give a finding through this order. Even otherwise, these documents do not require any detailed enquiry or leading of evidence, hence, the above findings are based on the availability of record and applicability of law, particularly, Res judicata.

7. With regard to the second category of claim of Applicant/Intervener-Saeed Ahmed through his C.M.As. Nos.12838 of 2014, 73 and 74 of 2015, crux of which is that the said Saeed Ahmed is requesting that this Court may investigate his claim that instead of sealing the suit property, the learned Nazir of this Court has sealed the alleged property, description whereof is mentioned hereinabove, purportedly belonging to the said Applicant/Saeed Ahmed and, therefore, he is primarily seeking de-sealing of "his" property. Adverting to this second category of claim (of Applicant Saeed Ahmed), it is an admitted that with his aforesaid applications, the said Saeed Ahmed (Applicant/Intervener) has not placed on record any title documents or for that matter even an allotment letter in respect of his alleged property, in order to substantiate his claim. Instead, a PT-1 Challan is annexed with his above C.M.As. as a proof of ownership. In absence of valid title documents the claim of Said Saeed Ahmed cannot be accepted as a tenable one and, therefore, all his applications are devoid of any merit and are accordingly dismissed.

8. The order dated 17.08.2011 also reveals that the Defendant No.1 has even ousted his real mother (the Defendant No.2) from the suit property. The record of the case is also evident of the fact that even after seven (07) years of filing of the instant suit, lady members/female legal heirs are being continuously deprived of their respective shares in the inheritance and since it is a suit for administration, it would be just and proper to pass a preliminary decree in terms of Order XX, Rule 13 of C.P.C. and the Official Assignee of this Court is appointed as Administrator to take further proceedings in the matter and is directed to dispose of the suit property and distribute the sale proceeds amongst the legal heirs. Fee of the Official Assignee shall be as per Rules. Consequently, C.M.As. Nos.5399 of 2014 and 1064 of 2015 filed by plaintiff are disposed of and in view of the above discussion, the above listed C.M.A. No.6107 of 2011 (Contempt Application) of Plaintiff is dismissed.

9. The upshot of the above is that all the listed C.M.As. of the two Applicants/Interveners, namely Shabbir Ahmed and Saeed Ahmed are dismissed being wholly misconceived and untenable in law, rather an abuse of process of law.

10. There is no order as to costs. MH/Z-12/Sindh Order accordingly