1985 PLP 141 (MLD)

S.1l--Res judicata--Cross suits--Petitioner's suit dismissed for want ,of evidence--Suit by respondent decreed- -Petitioner filing two appeals before Appellate Court--One appeal against dismissal of his own suit and other against decree granted in suit of respondent--One appeal of petitioner was dismissed on ground of bar of limitation while other appeal was dismissed as barred by res judicata--Principle of res judicata, held. might not be strictly attracted, as "cross suit". could not be termed "former suit" -Other appeal of petitioner, however, could not succeed for reason that Court could not pass contradictory judgments- Appeal of plaintiff having already boar dismissed for want .of limitation thus declaration in favour of respondents attaining finality regarding title of property. Rao Dastgir Ahmad Khan for Petitioner. M. Sahibzada Rashid Masood Gangohi for Respondents. Date of hearing: 9th October, 1984. This judgment will dispose of Civil Revision No. 49-D of 1983 and Civil Revision No. 50-D of 1983 as common questions of law and fact are involved. 2. The dispute between the parties relates to the title to a bus which the petitioner claimed' to have purchased from the respondents on instalment basis. The petitioner brought a suit on 20-5-1977 for a declaration of his title. A similar suit was brought by the respondents/ defendants on 17-11-1977 who also prayed for a similar declaration. The two suits were consolidated. On 24-9-1980 the petitioner's suit was dismissed for want of evidence as according to the trial Court the petitioner had failed to produce evidence in spite of six different opportunities being granted to him. The petitioner challenged this order in appeal within time. On 6-10-1980 judgment was given in the consolidated suit by which the suit brought by the respondents was decreed. The petitioner filed a separate appeal against the judgment and decree of 6-10-1980. When the two appeals came up before the learned District Judge, Faisalabad they were dismissed on the ground that the appeal against the judgment of 6-10-1980 was barred by limitation and that the other appeal was barred by res judicata on account of the judgment in the other case as that would amount to a decision in a former suit. The petitioner has challenged these orders through two revision petitions. 3. It is argued on behalf of the petitioner that the petitioner's appeal against the orders dated 6-10-1980 was not barred by limitation as the Court did not give benefit to the petitioner of the period spent by him in obtaining a copy. This plea is, however, without any merit. The judgment was delivered on 6-10-1980. The petitioner applied for a copy on 23-10-1980 at Jaranwala. This application was returned to him on 1-11-1980 advising him to apply to the Copying Agency at the District Headquarters. A fresh application was moved at the District Headquarter on 25-11-1980. The petitioner thus has to explain the delay between 6-10-1980 and 23-10-1980 and between 1-11-1980 and 25-1,1-1980. No explanation, however, was offered except that the petitioner contends that the application was returned to him at Jaranwala; not on 1-11-1980 but on 25-11-1980 and thus the petitioner cannot be called upon to explain the delay between 1-11-1980 and 25-11-1980. This question was examined at considerable length by the learned District Judge who called for the record whereby it was clearly established that the application was returned to the petitioner on 1-11-1980 and that he applied against for a copy at the District Headquarter on 25-11-1989. The appeal was, therefore, clearly barred by lime and the learned District Judge was justified in dismissing the appeal on that ground. As regards the other appeal which was brought by the petitioner in time, while the principle of res judicata may not be strictly attracted to the facts of the present case as cross suit cannot be termed as former suit but the petitioner's other appeal cannot succeed also for the reason that the Court' cannot pass a contradictory judgment when on the suit brought by the respondents they have already been declared) as owners of the bus by the judgment of 6-10-1980 of the trial Court, appeal against which was dismissed for want of limitation. Since a declaration which has attained finality regarding the title of the bus has already been granted to the respondents no declaration which contradicts this decree can be granted by the Court. In view of the above considerations the appeal brought by the present petitioner against the judgment of the trial Court of 24-9-1980 and 6-10-1980 merited dismissal. There is no justification to interfere with the orders of the learned District Judge of 21=11-1982. The two revision petitions are dismissed with no order as to cots, Revision petitions dismissed.