2010 PLP 439 (MLD)

AHMED ALI M. SHAIKH, J.

Through this petition the petitioners have prayed as under:-- (a) Declare that the Judgment dated 28-8-2007 and filed herewith as Annexure "P-2" is illegal, arbitrary without any lawful authority and of no legal effect. (b) Declare that the order passed by the trial Court on 18-5-2005 and filed herewith as Annexure "P-5" is a proper and legal order and as such the same be maintained. (c) Grant permanent injunction to the petitioner against the respondents Nos. 2 to 6 restraining them, their heirs, successors, legal representatives, attorney, and assignee from disposing of the suit property in any way to any one else and they also be restrained from creating any third party interest in the suit property. The respondents Nos.4 and '5 may be directed not to transfer and lease the suit property in the name of anyone else except the petitioners and the respondents No.6 may be directed not to issue any further PT1 in the name of the respondents Nos. 2 and 3 or in the name of any one else except the petitioners. The facts leading to this petition are that in 2003 the petitioners had filed a Civil Suit No.1059/03, in the Court of IInd Civil Judge Karachi South against the respondents for possession in respect of the property i.e., Plot No. 102, situated in Liaquat Ashraf Colony, Mehmoodabad Gate Karachi. In above suit an application under Order VII Rule 11 C.P.C. was moved by the respondents/defendants which was allowed and the plaint of the petitioners was rejected by the learned Civil Judge vide order dated 11-8-2004. It appears that the petitioner had filed second Suit No. 1075/04 in the Court of IIIrd Senior Civil Judge South Karachi against the respondent, for declaration, possession, cancellation of documents, mandatory and permanent injunction, in respect of same property. On 25-11-2004, the respondents/defendants had moved an application under Order VII, Rule 11, C.P.C. in above suit the same application was dismissed by the learned IIIrd Sr. Civil Judge South, vide order dated 18-5-2005. Against the above order on 30-8-2005 the respondents had filed Revision Application No.90/05 before the District and Sessions Judge Karachi (South) which was entrusted to the learned VIth Additional District Judge Karachi South who vide his Judgment dated 28-8-2007 allowed the same on the principle of res judicata. The above order has been impugned in this petition. The official respondents have filed their counter affidavit to the petition, in which they have denied the contents of the petitions and supported the impugned order. The private respondents did not file counter affidavits/objections in this regard. Per learned counsel the impugned order dated 28-8-2007 is illegal and arbitrary which is based on conjunctures and surmises and full of legal infirmity and material irregularities; the learned Judge of the Revisional Court has not appreciated the material brought on record and the impugned order is an outcome of misreading and non-reading of the available material in the said revision as well as in the Suit No.1075/04. The learned Judge of the Revisional Court has reached on erroneous conclusion by holding that the suit of the petitioner is not maintainable; the principle of res judicata is not applicable in the case in hand as the suit was not decided on merits; the petitioners had rightly filed the fresh suit in view of the provisions of Order VII Rule 13 C.P.C. which permit the petitioners to file the fresh suit. Learned Counsel lastly contended that the issues and the controversies in the above suit have not been finally decided by the court therefore, impugned order is bad in law and same is liable to be set-aside. Conversely the learned counsel for the respondent did not contest the petition seriously but he half-heartedly tried to defend the impugned order dated 28-8-2007 on the ground that same has been passed in accordance with the law. From the pleadings it appears that the Suit No. 1059 of 2003 was not finally heard and decided by the lower Court, therefore, doctrine of res judicata is not attracted to the case in hand. In order to invoke the principle of res judicata following conditions are necessary: (i) The matter directly and substantially in issue in the subsequent suit or the issue must be the same matter which was directly and Substantially in issue either actually or constructively in the former suit. (ii) The former suit must have been a suit between the same parties or between parties under whom they or anyone of them claim. (iii) The parties must have litigated under the same title in the former suit. (iv) The Court which decided the former suit must have been a Court competent to try the subsequent suit in which such issue is subsequently raised. (v) The matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by the Court in the first suit. From the bare reading of order passed by the learned Civil Judge in Suit No. 1059/03 it appears that the plaint was rejected under Order VII Rule 11, C.P.C. but the suit was not finally decided. The words "finally decided" mean to deliberate on an issue either accepting or rejecting it after conducting full inquiry. The word "Decide" cannot be interpreted to mean only passing of dismissal order and not an order of admitting or accepting application. To decide means to settle or to conclude in either way of accepting contention or rejecting the plaint as held in the case of Mursaleen v. Ghulam Sarwar and another (PLD 1987 Quetta 8). It has been held in the case of Abdul Majeed v. Board of Directors Khyber Vegetable Ghee Mills (1984 CLC 2392), the rejection of plaint amounts to a decree only by fiction and there is no bar to file a fresh suit. The principle of res judicata cannot be pressed into service unless the matter has been heard and finally decided. It is almost settled principle of law if the plaint is rejected under Order VII Rule 11, C.P.C. the plaintiffs is not precluded from presenting the fresh plaint as provided in Rule 13 of Order VII, C.P.C. The rejection of the plaint is not an adjudication on merits. It is a decree only by fiction. Therefore, the principle of res judicata cannot be pressed into service unless the matter has been finally decided. In view of the above we are of the considered view that the impugned order dated 28-8-2007 passed by the learned VIth Additional Sessions Judge South Karachi is based on miss -interpretation of section 11, C.P.C., which is not sustainable, in the eyes of law and same is liable to be set-aside. For the foregoing reasons the above petition was allowed by our short order dated 13-1-2010 and the matter was remanded back to the lower Court to decide the same on merits. M.H./M-21/K Case remanded.