2016 PLP 2411 (YLR)

MUHAMMAD DAUD KHAN, J.

Through the instant petition, the petitioner has made a prayer for early fixation of the CM # 72/2016 and CR # 21 of 2016. The grounds mentioned in the application are reasonable, therefore, this CM is allowed and the office is directed to fix the main case along with CM # 72/2016 for today. CR # 21-M/2016 with CM # 72/2016: Impugned herein are the judgments dated 15-01-2016 passed by learned Izafi Zila Qazi Samar Bagh Dir Lower and dated 22-12-2015 passed by learned Illaqa Qazi Samar Bagh Dir Lower whereby both the learned Courts below accepted the application filed by respondent under Order VII, Rule 11, C.P.C. for rejection of plaint, resultantly the plaint of petitioner was rejected being barred by law mainly on the ground of Res judicata.

2. The learned counsel for the petitioner argued that present suit is totally different from the former suit as the present suit is regarding possession and the former one was for the declaration. In support of his contention he relied on PLD 1982 Supreme Court 201, 2002 SCMR 300, 2007 SCMR 373 and 2014 YLR 922 Peshawar.

3. I have heard arguments of the learned counsel for the petitioner, gone through the available record and perused the relevant law on the subject as well.

4. It appears from the available record that the petitioner filed a suit # 89/1 for declaration, specific performance and possession on 08-11-2006, wherein he averred that the suit property was given to respondents with condition that respondent will not sell the house to any other person except the petitioner and to this effect agreement deed was executed on 27-10-1976. The former suit was contested by the parties and after conclusion of trial the learned trial Court dismissed it on 19-10-2009 with a relief to the petitioner that the respondent will not sell the disputed house to any other person except the petitioner and the said decision was maintained upto this Court. Later on again petitioner filed the instant suit # 123/1 of 2015 on 27-11-2015 on the strength of same agreement deed dated 27-10-1976 and averred therein that due to recent earthquake the said house was smashed down completely and the respondent intends to construct a new house upon it, thus he got a fresh and different cause of action as defendant/respondent is liable to be restrained from changing the nature of property and is bound to transfer the said house to plaintiff/petitioner as per agreement dated 27-10-1976. When put on notice by the learned trial Court, the defendant filed an application for outright rejection of the petitioner's plaint that the matter in question has already been decided in the former suit. The learned trial Court accepted the said application vide its order dated 22-12-2015 mainly on the ground that the plaint of the petitioner is barred by law as matter in question has already been decided, which was impugned by the petitioner in the Court of Izafi Zilla Qazi by filing an appeal. The learned appellate court vide its judgment dated 15-01-2016 by dismissing the appeal, maintained the impugned order and as such the plaint of petitioner was rejected under Order VII, Rule 11, C.P.C. Now the petitioner has impugned the judgment of the Courts below in this Court by filing the instant revision petition.

5. While going through the record appended with the petition, one could reach to an irresistible conclusion that the controversy between the parties has been decided uptil this Court and got finality as the petitioner didn't challenge it before the Apex Court. It is crystal clear from the record available that the petitioner sought possession in the present suit on the basis of the same deed dated 27-10-1976 and on the strength of the same deed his former suit was decided upto this Court. In the former suit the only relief which was granted to the petitioner was that the respondent will not sell the disputed house to any other person except the petitioner. The petitioner himself admitted in his present plaint that the said house was got damaged due to recent earthquake and the respondent is going to construct a new house upon it, mere this fact doesn't give him a fresh cause of action rather the petitioner will have got the cause of action only when the respondent sells the disputed house to any other person. Moreso, while going through the former suit and the instant one filed by the petitioner in juxtaposition, it is crystal clear that in both, the subject matter, the agreement deed dated 27-10-1976 regarding the house is directly and substantially in issue are the same between the same parties and the courts which disposed of the former suit were quite competent and the former suit was decided on merits upto this Court. Keeping in view these facts, the instant suit is not competent and is barred by principles of Res-judicata as laid down in section 11, C.P.C. It is now settled that in incompetent suit, Court is not only empowered but under obligation to reject the plaint in such like suits even without any application from party, which has rightly been done by the fora below. Reliance is placed on "S. M. Sham Ahmad Zaidi through Legal Heirs v. Malik Hassan Ali Khan (Moin) Through Legal Heirs (2002 SCMR 338(B))", "Raja Ali Shan v. Messrs Essem Hotel Limited and others (2007 SCMR 741(G))" and "Mir Sahib Jan v. Janan (2011 SCMR 27)".

6. I have gone through the case law cited by learned counsel representing petitioner and I am of the humble view that facts of those cases are quite different from facts of the present case and as such those rulings do not apply in the present case.

7. The learned counsel for petitioner was unable to point out any illegality or material irregularity or excess of jurisdiction by the fora below while passing the impugned judgments. The impugned judgments don't call for interference in revisional jurisdiction of this Court. The instant revision petition being devoid of force, is dismissed in limine along with C.M. No. 72/2016. ZC/164/P Revision dismissed.