2023 PLP 817 (MLD)

RAJA SHAKEEL AHMED, J.

Arguments heard pro and contra.

2. The petitioners/defendants preferred the instant Civil Revision Petition before this Court against the judgment/order dated 05-11-2018 passed by the learned Additional District, Judge Skardu with the prayer that by accepting this revision petition, the impugned order/judgment dated 05-11-2018, passed by the Additional District and Sessions Judge Skardu, may kindly be set aside.

3. Brief facts of the case are that the present respondent/plaintiffs filed a Civil Suit No. 55/2016, against the present petitioners/defendants before the learned trial court for declaration and possession of land under Khasra Numbers fully described in the head note of plaint. The plaintiff/respondents also sought permanent injunction against the respondents not to change the nature of disputed property by means of sale, gift and change in revenue record.

4. The learned Civil Judge 1st Class Skardu, after submission of application under Order VII, Rule 11, C.P.C. presented by defendants have framed issue regarding maintainability of suit and after arguments vide its judgment dated 31-03-2016 dismissed the suit.

5. The plaintiffs/appellants filed a C.F.A. No. 11/2017, against the judgment of trial court dated 31-8-2016 before the learned Additional District and Sessions Judge Skardu for setting aside the judgment/order of the learned Civil Judge 1st Class Skardu dated 31-08-2016, in Civil Suit No. 55/2016. Consequently the learned Additional District and Sessions Judge, has allowed the appeal of plaintiffs/appellant and set aside the order of the learned Civil Judge 1st Class Skardu.

6. The learned Additional A.G for the present petitioners/ defendants argued that the learned 1st Appellate Court has passed the impugned judgment/decree order in a very slipshod manner, wrong inference has been drawn from the record of the case, and has failed to exercise the jurisdiction and wrongly passed the impugned judgment/order, and have not exercised powers so vested in it by law, hence committed material irregularity and illegality in the eyes of law, the impugned order is based on miss-interpretation of law hence same is not maintainable and liable to be set aside.

7. On the other hand the counsel for respondents vehemently opposed the contention of the learned Additional A.G and argued that the parties of previous litigation are under litigation before this court the controversy between the parties is still pending before the courts hence the principle of res judicata do not arise hence the suit of the plaintiff could not be dismissed under the mischief of res judicata. He further argued that only plaint can be rejected under Order VII, Rule 11, C.P.C., but the learned trial Court dismissed the suit of plaintiffs by doing so the learned trial court travelled beyond the jurisdiction vested in it under law hence the learned 1st Appellate Court rightly set aside the impugned judgment of trial court dated 31-08-2016.

8. I have heard the arguments. Perused the record and relevant laws with the valuable assistance of learned counsel for the parties. I have also gone through the both judgments passed by the learned trial court and learned 1st Appellate court.

9. Admittedly the matter of previous suit is still under litigation before this Court. The matter till yet not got finality between the parties. The learned trial Court had dismissed the suit of plaintiff under the mischief of Order VII, Rule 11, C.P.C. by applying the principle of res-judicata under section 11, C.P.C. Plain reading of Order VII, Rule 11, C.P.C. shows that under this provision a suit can be rejected; when the suit falls under the ambit of this provision i.e where it does not disclose a cause of action, where the relief claimed, is under valued, where relief claimed is properly valued but plaint is insufficiently stamped, or where suit appears from the statement is the plaint to be barred by law. When the provisions of this rule attracted, the suit cannot be dismissed but the plaint should be rejected, hence the dismissal of suit under this order by applying the principle of res-judicata being barred by law is illegal and not warranted.

10. The section 11, C.P.C. emphasized that No court shall try any suit or issue in which the matter directly and substantially in issue in a former suit between parties in a court of competent jurisdiction has been heard and finally decided such case section 11 does not bar the cognizability of suit but only prohibits the trial of the suit or issues.

11. In my view the facts and circumstances in present controversy falls under the ambit of section 10, C.P.C. as the matter in issue in both the suit is directly and substantially same. The appeal of previous suit is still pending for adjudication in a court of competent jurisdiction as appeal is contamination of suit and the appellate court has the jurisdiction to grant the relief in appeal both the proceedings are between the same party; as all the conditions afore mentioned are fulfilled hence it was mandatory upon the court trying the subsequently instituted suit to story proceedings in the subsequent suit and order under section 10, C.P.C. staying the trial of the subsequently institutional suit may be passed at any stage.

12. On the basis of afore going reasons I am agree with the findings of the 1st Appellate Court that the suit may be treated as res sub judice under section 10, C.P.C. before the trial Court and trial may be stayed in trial court till final decision of appeal and revision if any of previous suit pending in competent court of jurisdiction.

13. Resultantly, this revision petition is dismissed. The judgment of learned 1st Appellate Court maintained. No order to cost. File. SA/136/GB Petition dismisse