P L D 1965 (W (PLP)

A. S. FARUQUI, J.‑--This is an appeal against the judgment and decree dated 31st July 1958, in Suit No. 36/56 passed by the First Class Sub‑Judge, Mirpurkhas, Mr. Abdul Wali Makhdoom, whereby the learned Sub‑Judge granted the declaration and injunction sought by the plaintiff Muhammad Kaim, son of Muhammad Hassan against the Court of Wards.

2. Before dealing with the appeal on merits it is necessary to deal with the objections raised on behalf of the respondent Muhammad Kaim by his learned Advocate Mirza Abdul Rahman, in the course of the hearing of the appeal on 6‑4‑64, that the appeal was barred by limitation. The material facts in this connection are these The judgment in this case was delivered by the learned Sub‑Judge on 31st July 1958. The decree which followed the judgment also bears the same date. A copy of the judgment and the decree was applied for by the appellant Court of Wards on 17‑10‑58, and the copies were delivered on 10th November 1958. The time for the filing of this appeal was 90 days and the appeal was presented on 20‑11‑1958. Therefore, excluding the time taken in the obtaining of the copies of the judgment and the decree the appeal, when presented, was within time. It could have been presented up to 21st November 1958, as being . within 90 days. However, the learned Advocate Mr. Sherali who presented the appeal did not file a vakalatnama along with the memo of appeal for the simple reason that he had not received it from the Manager,. Court of Wards until then, On the back of the memo of appeal there is: an endorsement by the office dated 29‑12‑58, that the appeal was insufficiently stamped. The memo of appeal was however returned to the Advocate on 13th May and the objections were complied with on 15‑5‑1959, The vakalatnama was also filed as would appear from the stamp on the vakalatnama on the same date that is 15‑5‑59.

3. The objections of Mirza A. Rehman the learned Advocate for the respondent is that in so far as no vakalatnama was filed along with the memo of appeal the presentation was ineffective until the vakalatnama was filed and this was done long after the expiry of the period of limitation. Mr. Sherali the learned Advocate for the appellant has filed an application under section 5 of the Limitation Act supporting it with an affidavit of his clerk and copies of certain correspondence. It is stated in. the affidavit that when the clerk of the Court of Wards had come with the papers for the filing of the appeal he had not brought a vakalatnama with him and the Manager, Court of Wards Hyderabad had gone on tour and he had‑not been able to get his signature, on the vakalatnama. Thereafter, when the vakalutnnma was received the file of the case was lost in the police of the Court after presentation of the, appeal which was done on 20‑11‑

58. This stand is supported by the correspondence which has been produced along with the affidavit. The first letter is dated 19th November 1958, from Mr. Sherali to the Manager, Court of Wards saying that he had received the papers on that day and that he shall file the appeal on the following day. He also asked for a vakalatnama. This vakalatnama came along with a letter from the Manager, Court of Wards dated 22‑11‑58, Annexure `B'. The vakalatnama, therefore, was received by the Advocate after the 22nd of November 1958. There is then a letter dated 23rd April 1959, by the Advocate addressed to the Deputy Registrar of the High Court saying that he had not been able to trace the file of this appeal in the office and in any of the branches in spite of his repeated searches and enquiries. He had also written to the Manager, Court of Wards on 6th May 1959, saying that the office was searching for the file. On 15th May he had written another letter to the Manager, Court of Wards saying that the file had been found out. This corresponds with the endorsement of the office dated 13‑5‑59, to the effect that the memo of appeal had been returned on that day to the Advocate for compliance of objections with regard to the insufficiency of court‑fee. Below this endorsement there is an endorsement of Mr. Sherali dated 15‑5‑59, saying that the objection has been complied with. In the face of this evidence, we are inclined to believe the statement in the affidavit, and made at the Bar by Mr. Sherali, that the file of the appeal had been misplaced in the A office after its presentation. We, therefore, accept the application under section 5 of the Limitation Act, and condone the delay in the filing of the vakalatnama, which should have been filed along with the appeal, and within the period of limitation. We, accordingly treat this appeal as being within time.

4. The material facts are these:‑-The plaintiff/respondent Muhammad Kaim had taken a lease for three years from the Court of Wards of the Estate No.

987. This estate belonged to one Abdul Majid whose property had come under the superintendence of the Court of Wards. The lease was from Kharif 1953‑54, for three years at the rate of Rs 20,000 per year as lease money. The plaintiff paid to the Court of Wards a sum of Rs. 21,000 towards this lease. It was his case that the Court of Wards had failed to deliver possession of the entire land covered by the lease. The total area of the land which had been leased out to Muhammad Kaim, according to the lease deed, was about 584 acres. This was situated in three villages, namely, deh Sarhari, 431 acres 21 Ghuntas, deh Kanghal 97 acres 20 Ghuntas and deh Palango 56 acres and 14 Ghuntas. It was the ease of the plaintiff that out these lands he had not got the possession of the land in the villages Kanghal and Palango. He had thus not been able to obtain land measuring about 154 acres. With regard to 431 acres of deh Sarhari, it was his case that he had not got its possession for the first year namely 1953‑54, and that he only enjoyed its possession during the remaining two years 1954‑55 and 1955‑

56. It was, therefore, urged that, in so far as the lessors had failed to deliver possession of the entire land, they were trot entitled to get any lease money at all or at least the lessee was entitled to deduct proportionately the amount of the lease in accordance with what he had actually got possession of. This was denied by the defendant whose case was that the plaintiff had got possession of the entire land of all the three villages and for all the period of the lease.

5. The plaintiff in the Court below had also claimed a certain amount which, according to him, he had spent on the improvement of the land with the permission of the Court of Wards. He further challenged the right of the Court of Wards to claim the amount of lease on the ground that the lease was not effective for want of a valid registration. All this was denied by the defendant who further averred that the plaintiff had already filed a civil suit in the District Court of Hyderabad against them and as such this suit was not maintainable. Upon the pleadings, the learned Sub‑Judge framed the following issues‑‑- (1) Did the plaintiff not get the possession of entire lease land? If so, to what extent and what is the effect of it, so far as the payment of lease consideration is concerned? (2) Was the plaintiff entitled to spend on improvements of the land and is the defendant bound to pay that amount? If so, to what extent?‑ (3) Is the defendant not entitled to recover the amount of Rs. 40,000 from the plaintiff? (4) What is the effect of the suit filed by the plaintiff in Hyderabad Court? (5) Has this Court no jurisdiction to try this suit? (6) What should the decree be?" On the first issue the learned Judge found that the plaintiff had not got possession of the land of deh Sarhari for the first year and with regard to the land of the other two dehs he had not got possession at all. On the second issue with regard to the alleged expenditure he held that the plaintiff was not entitled to spend on any improvements and the defendants were not bound to pay for, it. On issue No. 3 with regard to the claim of the plaintiff for the payment of Rs. 40,000 he held that they were not entitled to recover it. With regard to the suit in Hyderabad he found that it had no effect on this suit. On Issue No. 5 he found that the Court had jurisdiction.

6. In connection with Issue No. 1 the learned Judge came to his finding thus:‑He took into account the fact that Rs. 60,000 were the agreed lease money for 585 acres of land for three years. Out of this the lessee had not got possession of 154 acres of deh Kanghal and deh Palango. With regard to the remaining 431 acres he held that the lessee had not got possession for the first year. For the land of deh Sarhari, which the plaintiff had enjoyed for two years, he would have been liable to pay about Rs. 29,000, but with regard to the produce of the last year, namely, 1955‑56, of this land, the same had been taken away by one Ghulamali, and the lessee was, therefore, only liable to pay Rs. 14,500, namely, for one year. As against this, lie pointed out that the plaintiff had already paid Rs. 21,000, therefore he was not liable to pay anything more. He accordingly decreed the suit, and granted the plaintiff a declaration that the demand of the defendant for arrears of lease money was illegal, and also granted a permanent injunction restraining the defendant from taking distress proceedings against the plaintiff for the recovery of the alleged claim of arrears.

7. The principal point which emerged for consideration in this appeal is whether the plaintiff's suit from which the present appeal arises, is barred by res judicata by reason of the decision in Suit No. 4/56 by the First Assistant Judge, Hyderabad, between the same parties, which judgment was upheld by the Division Bench of this Court in I. A. No. 44/59.

8. In order to understand the point of law which arises in the question stated above, it will be necessary to state certain facts. In respect of the lease money of the second year of the lease period, the Court of Wards had, on the failure of the lessee, Muhammad Kaim, started proceedings for recovery under the Sind Land Revenue Code, since the dues of the Court of Wards were recoverable as arrears of land revenue. The plaintiff was arrested for non‑payment of the arrears as a defaulter under section 157 of the said Code. He was then released upon his furnishing a security bond on 27‑3‑1956, as provided by section 164 of the Code, and followed this up by a suit for declaration that the demand of arrears was not just, and for an injunction restraining the Court of Wards from arrest of the person or attachment of the property of the plaintiff. This suit was filed in the Court of the District Judge, Hyderabad, on the 9th of April 1956, and was numbered as Suit No. 4 of 1956. It was heard and decided by the First Assistant Judge, Hyderabad on 8th November 1958.

9. The material allegations of the plaint in the suit filed at Hyderabad were these: that the plaintiff took the lease of the land (which is common in both the suits) from the Court of Wards as a result of an auction for a period of 3 years, i.e. Kharif 1953‑54, to Rabi 1955‑56, at the rate of Rs. 20,000 per year; that the plaintiff incurred expenses to the extent of Rs. 30,000 for the improvement of this land; that the plaintiff paid Rs. 21,000 to the Court of Wards, but the Court of Wards failed in the performance of their part inasmuch as they did not deliver possession of the entire land to the plaintiff, that the produce of the land was taken away by one Ghulam Muhammad, (sic) the brother of a former lessee; that there being no exclusive right of possession of the lease‑land, there was no legal lease; that the defendants were debarred from enforcing their alleged right of recovering Rs. 21,547, or any amount; and that the defendants threatened to continue the issuing of warrants for the arrest of the plaintiff, and the attachment of his property.

10. The defendants Court of Wards, denied all these allegations in their written statement, and upon the pleadings as many as 1‑6 issues were framed by the Court. The a issues, which are material for the consideration of the point raised before us are these: (i) Is the lease invalid or illegal? (ii) How much and which land plaintiff did not get possession of from the defendant? . (iii) Did the plaintiff spend Rs. 30,000, etc? (iv) Did Ghulam Muhammad along with others, take away the produce as alleged? If so, what is the effect? (v) Has the defendant the right to recover the amount of Rs. 21,547 or any amount shown in para. 13 of the plaint? These issues are numbered in that suit as issues Nos. 6, 7, 8, 10 and 12 respectively. The learned Assistant Judge gave his findings on these issues as follows: On Issue No. 6, he held that the lease was valid and legal. On Issue No. 7, he held that the plaintiff did not get possession of the land in deh Palango, but with regard to the rest of the land in deh Sarhari and deh Khangal, he held that the plaintiff had got possession of it for the whole period of the lease. He rejected the plaintiff's case that he had not got possession of the land of Khangal, and as regards Sarhari that he had not got possession of the land of this village during the first year of the lease. He accordingly gave his finding. On Issue No. 8, he found against the plaintiff. On Issue No. 10, he held that Ghulam Muhammad or others had not taken away any produce, and on Issue No. 12, he held that excluding the proportionate amount of lease‑money in respect of the land of deh Palango, the balance was recoverable from the plaintiff. As a result of these findings, the learned Judge declared that the Court of Wards was not entitled to recover the lease‑money, for the land of deh Palango, but the lease‑money in respect of the remaining land, i. e. of deh Sarhari and deh Khangat for all the three years was recoverable after deducting the sum of Rs. 21,000 which had already been paid by the plaintiff to the lessor. He accordingly passed a decree in these terms.

11. Against this judgment and decree of the learned First Assistant Judge, the lessee Muhammad Kaim, preferred an appeal to this Court, being

1. A. No. 44 of 1959, and this was decided by a Division Bench of this Court by their judgment dated 6th February 1962 The Division Bench upheld the findings of the learned Assistant Judge and dismissed the plaintiff's appeal. A copy of the judgment of the Division Bench was filed by Mr. Sher All, the learned Advocate for the Court of Wards, along with his application for raising an additional ground of appeal on the question of res judicata. At his request, we also sent for the record of that appeal, and we have kept one of the paper‑books thereof on the record of this appeal.

12. It will be seen by a comparison of the respective issues in the two suits that the matters directly and substantially in issue in both the suits were the same and upon the decision of which rested the result of these suits. These matters were:‑ (i) How much and which land the plaintiff did not get possess of? To be more specific, whether the plaintiff (lessee) had not received possession of the lease land in any of the three villages, namely deh Palango, deh Kanghal and deh Sarhari, and whether in respect of the last‑named village he had not received possession in the first year of the lease namely 1953‑54 ? (ii) Did the lessee spend on improvement, and if so, was he entitled to receive the amount from the defendant? (iii) Was the lease invalid and whether the produce of the land was taken by somebody else and if so, its effect? (iv) Was the lessor not entitled to recover the lease‑money or any part of it?

13. The First Assistant Judge, Hyderabad by his judgment dated 8‑11‑58 held against the lessee on all these issues except with regard to that part of the lease land which was situated in deh Palango, about which he held that the plaintiff bad not got its possession. He accordingly declared that except with respect to the lease money of deh Palango the demand of the lessor for the lease‑money of the survey numbers (land of deh Sarhari and Kanghal) for all the years was just and recoverable from the lessor. He naturally allowed the deduction from it of the sum of Rs. 21,000 which had already been paid by the lessee to the lessor. This is contained in para 25 of the judgment. This has been upheld by the Division Bench of this Court in 1st Appeal No. 44/ 1959.

14. The question then is whether this decision operates as res judicata with respect to the suit which is now before us in appeal. We have now to see whether the suit filed in the Hyderabad Court can be held to be "a former suit" within the meaning of the expression in section 11, C. P. C. That is one of the requirements which remains to be fulfilled in order to apply the doctrine of res judicata. We have shown that the other requirements with regard to the sameness of the parties and the sameness of the matter directly and substantially in issue has been fulfilled in this case. It also cannot be disputed that the 1st Assistant Judge, Hyderabad was competent to try the other suit as well. That the suit filed in the Hyderabad Court has been finally decided is also not in dispute. The appeal from the decree passed by the 1st Assistant Judge, Hyderabad was dismissed by this Court on 6‑2‑1962 and no appeal against it has been preferred in the Supreme Court.

15. The expression "former suit" has been explained in Explanation I to section 11 which says that it shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto. Now, the suit in the Hyderabad Court though it was instituted earlier in point of time than the suit instituted in the Court of Sub‑Judge, Mirpur Khas, because the former was instituted on 10‑4‑56 and the latter on 22‑9‑56 yet it was this suit (of the Court of Mirpur Khas) which was decided by the trial Court earlier. It was decided on 31‑7‑58 whereas the 1st Assistant Judge, Hyderabad decided the other suit on 8‑11‑

58. Therefore, if the matter had rested with the decision of the two trial Courts, the decision of the Court of Sub‑Judge First Class, Mirpur Khas would have operated as res judicata in the suit of the, Court of 1st Assistant Judge, Hyderabad. But the matter did not rest there. The appeal from the Hyderabad suit was decided by this Court as far back as 6th February 1962 (First Appeal No. 44/59) and the question which falls for decision is whether this decision operates as res judicata with regard to the suit of the Mirpur Khas Court. The appeal before us is a continuation of that suit, and if the other suit has been finally decided earlier it seems to us to be clear that the decision B thereof must operate as res judicata in the appeal with which we are now dealing. Mulla in his Commentary on Civil Procedure Code, 12th Edition, page 38, while dealing with the expression "former suit" has observed:‑‑- "The expression `former suit' means a previously decided 'c suit and the same interpretation applies to appeals." A somewhat similar situation arose in a case which came before the Allahabad Hight Court and the decision of which is reported in Balkishan and another v. Kishan Lal (I L R 11 All. 148). This case was eventually heard by a Full Bench of three eminent Judges, namely Justice Mahmood, Sir John Edge, C. J. and Justice Straight. It will be useful to briefly state the facts of this case. The plaintiff Kishan Lal in that suit was the purchaser of the rights and interests of one Bhagwanta who was alleged to have possessed Zamindari rights in the village. The defendant appellants were muafidars of the village and as such, in possession thereof. The contention of the plaintiff was that the aforesaid Bhagwanta whom he represented was entitled to a malikana allowance of Rs. 12 per annum recoverable from the defendants in their capacity of muafidars. Upon these allegations the plaintiff instituted a suit against the defendants on 17th August 1885 for the recovery of a sum of Rs. 30, as malikana allowance due in respect of Fasli years 1290, 1291 and 1292, but the suit was dismissed by the Munsif on 5th October 1885. Upon appeal preferred. on 7th February 1886 the Subordinate Judge of Agra reversed the Munsif's decree and decreed the claim on 10th March 1886. The Subordinate Judge's decree was, however, appealed from to the High Court of Allahabad on 21st June 1886 and was remanded by order dated 14th February 1887 for trial of certain issues. In pursuance of this order findings were recorded by the new Subordinate Judge on 25th April 1887 and the case came before the High Court (Syed Mahmood, J.) who by his order dated 4th July 1887 reversed the decree passed by the former Sub Judge on 10th March 1886 and restored the Munslf's decree dated 5th October 1885 whereby the plaintiff's suit had been dismissed. Meanwhile the plaintiff relying probably upon the appellate decree of 10th March 1886 had instituted another suit for the malikana allowance for the year 1293 Fasli. It was contended by the plaintiff in this suit that the judgment of the Sub‑Judge dated 10th March 1886 furnished a basis for holding that the plaintiff's right to recover the malikana allowance was res judicata entitling the plaintiff to the benefit of conclusiveness and to a decree for the amount which he claimed in this suit. The first Court decreed the plaintiff's suit with regard to the malikana of the year 1293 F and the lower appellate Court affirmed this decree upon the ground of res judicata without entering into the merits of the case. It was from this decree that the second appeal was preferred and being of a small valuation came before Mahmood, J. sitting singly in the first instance and then before a Division Bench consisting of himself and Straight, J. and then these two Judges made a reference to the Chief Justice upon which the Full Bench was constituted which decided this appeal. The judgment in appeal was written by Syed Mahmood, J. with whom the learned Chief Justice and Straight, J., agreed. The question which is relevant for our purposes in this appeal was formulated thus: "Does this Court's judgment of the 4th July 1887 operate as res judicata, barring either the trial of this `suit' or of the `issue' as to whether the plaintiff is entitled to the malikana allowance which he failed to recover for the previous years "in the litigation which ended in this Court's judgment of the 4th July 1887?"

16. Mahmood, J. in this case was contending against the difficulty of the 4th explanation to section 13 of the Code which has been reconstituted as section 11 of the present Code. That explanation read as follows: "A decision, liable to appeal, may be final within the meaning of this section until the appeal is made." That explanation was later on removed and we, therefore, don't have the same difficulty in dealing with the question as Mahmood, J. had but notwithstanding the difficulty of that explanation he came to the conclusion that judgments which are still liable to appeal are not definitive adjudications. They are only provisional and not being final cannot operate as res judicata. He followed the view taken in a Bombay case wherein it was held that when the judgment of a Court of first instance upon a particular issue is appealed against, that judgment ceases to be res judicata and becomes res sub judicata. He then came to the question as to what was to be done in that case, whether they should decide it themselves or set aside the judgment of the two Courts below and remand the case for trial on merits as was suggested by the plaintiff's counsel. In repelling the suggestion his Lordship observed:‑-- "It seems to me that the main object of the doctrine of res judicata is to prevent multiplicity of suits and interminable disputes between litigants, ne autem lites immortales essent, dum litigantes mortales sunt. This saying of Voet is in accord with "the maxims nemo debet bis vexari pro una et eadem causa, and the broader maxim interest reipublicae ut sit finis litium. This being so, the doctrine, so far as it relates to prohibiting the retrial of an issue, must refer not to the date of the commencement of the litigation, but to the time when the Judge is called upon to decide the issue." Further on he observed:-- "So far as the justification of this view from the provisions of the Civil Procedure Code is concerned, I may say that the rule contained in section 13 is not limited to the Courts of first instance, that it applies equally to the procedure of the first and second appellate Courts by reason of sections 582 and 587 respectively, and, indeed, even to miscellaneous proceedings by reason of the general provisions of section 647 of the Code." and finally it was observed:‑-- "We cannot today, when we are called upon to decide the issue as to the plaintiff's right to malikana, ignore my final judgment of the 4th July 1887, which negatived that right in a previous litigation between the parties." Upon these conclusions the plaintiff's suit was dismissed with costs in all the Courts.

17. In a more recent case of the Madras High Court, the judgment of which is reported in Arikapudi Balakotayya v. Yadlapalli Nagayya (A I R 1946 Mad. 509), the question arose whether the High Court dealing with a civil appeal was bound to take into consideration a final judgment of the District Judge under the Endowments Act, which was said to have concluded the question as regards the right of the appellant in that appeal. In that case when the appeal had come before their Lordships of the High Court it was brought to their notice that apart from the correctness of the decision of the lower Court on merits the appellants were precluded from urging their right by reason of the adverse decision in the original petition. This petition was under the Madras Hindu Religious Endowments Act in which the District Judge had decided the matter against the appellants in the original petition. Upon this fact being brought to the notice of their Lordships they called for the order of the District Judge in the original petition and allowed it to be exhibited in the appeal. It was observed: "If before an appeal is heard, there is another decision which has become final and which operates as res judicata on the question at issue in the appeal, the appellate Court ought not to refuse to allow the later judgment to be filed. Once it is brought to its notice that there is such a judgment, it is the duty of the appellate Court to allow it to be filed in order to avoid conflicting judgments and further complications. This position is not controverted and we have therefore to see whether the judgment of the District Court in O. P. No. 96 of 1942 precluded us from entertaining the claim of the appellants."

18. The doctrine of res judicata is to confer finality upon the decisions of the Court so as to avoid multiplicity of suits and proceedings. Once a matter has been finally decided by a Court of competent jurisdiction it becomes the duty of the Court to give effect to that decision provided, of course, the requirements of the doctrine of res judicata are fulfilled. We cannot now in this appeal re agitate the same question which had been agitated before another Division Bench of this Court which finally decided it and upheld the decision of the Assistant Judge, Hyderabad. that decision has become final and, therefore, operates as res judicata for the purposes of this appeal before us in which we are called upon to try the same issues which have already been tried and conclusively decided. We accordingly allow this appeal and in order to bring this judgment in conformity with the judgment in the other suit we limit the declaration sought by the plaintiff to this extent that the appellant defendant shall not recover from the plaintiff respondent the amount of the lease money in respect of the survey numbers in deh Palango. The claim for the recovery of the lease money by the Court of Wards shall be reduced accordingly. The demand of the Court of Wards with regard to the lease money of the rest of the land which was the subject matter of the lease in respect of all the three years is recoverable by them. The lessee, of course, shall be given credit for the payment by him of Rs. 21,

000. Having regard to all the circumstances of the case we leave the parties to bear their own costs both in this appeal as well as in the suit in the Court below. K.B.A. Appeal accepted.