P L D 1973 Lahore 463 (PLP)

It is now well established that adverse finding against the successful party is not a res judicata in a subsequent suit between the parties. If a decree is one of dismissal in favour of the defendant but there is a finding adverse to him on any point a plea of res judicata cannot be based upon the decision, because the defendant having succeeded on the other plea has co-occasion to challenge that order in appeal. Midnapur Zamindar Co. Ltd. v. Naresh Narayan Roy A I R 1922 P C 241 ; Abdul Qayum and others v. Abdul Rahmam and others A I R 1933 Oudh 439 ; Radha Hembirrao Patti and others v. Dinkarrao Hambirrao Patti A I R 1937 Bom. 208 I Parathanath and another v. Rameshwar Pratap Sahl A I R 1938 All. 491 ; Abdul Rahman Mullick and others v. Azahar Ali Khan, A I R 193 5 Cal. 733 ; Goglneni Bapayya v. Gogineni Rame kirshnayya and others A I R 1945 Mad. 39 ; Thakur Magundeo v. Thakur Mahadev Singh 18 Cal. 647 and Abhey Ram and another v. Jhanda and others A I R 1929 All. 910 rel. Mian Nazir Akhtar for Petitioner. Respondent No. 3 and the petitioner are husband and wife. Respondent No. 3 filed a suit for restitution of conjugal rights against the petitioner in the Family Court, Rawalpindi The petitioner resisted the suit and pleaded that the respondent had been treating her with cruelty and that he had also failed to pay the prompt dower. The trial Court framed the two issues, viz. (1) Whether prompt dower of Rs. 1,500.00 has been paid by the plaintiff to the defendant, if not, what is its effect on the suit? (2) Whether the plaintiff treated the defendant with cruelty? At the trial the petitioner produced Kabeennama which showed the prompt dower as Rs. 3,000.00. Learned counsel for the petitioner states that in the written statement Re. 1,500.00 had inadvertently been mentioned. The trial Court, however, held that the respondent had not paid the amount of the prompt dower and that he also had been treating the petitioner with cruelty. The respondent preferred an appeal against the judgment and decree of the trial Court which was dismissed by the learned Additional District Judge by his order dated the 3rd of July 1972. He, however, decided issue No. 1 , about the payment of prompt dower against the petitioner and held that the respondent had paid the same to the petitioner. He maintained the decision of the trial Court on the question of cruelty and dismissed the appeal. The petitioner has filed this petition under Article 201 of the Interim Constitution to challenge the decision of the learned Additional District Judge on the question of dower that it was without lawful authority and of no legal effect.

2. Learned counsel for the petitioner contends that she has also filed in the Family Court suit for recovery of Rs. 3,000.00 as prompt dower and that the finding of the learned District Judge that the respondent had already paid the amount to her would operate as res judicata against her. The apprehension of the petitioner is unfounded. A plea of res judicata cannot be pressed into service unless the person raising the plea satisfied the Court (a) that the matter directly and substantially, in issue in the subsequent suit must have been directly and" substantially in issue in the former suit, (b) that the former suit, must have been between the same parties or between parties under whom they or any of them claim, (c) that such parties must have been litigating under the same title in the former suit, (d) that the Court trying the former suit must have been a Court competent to try the subsequent suit or the suit in which such issue is subsequently raised, and (e) that such matter in issue in the subsequent suit must have been heard and finally decided to the first suit. First four conditions of res judicata are doubtless satisfied in the case but the question arises whether the matter in issue, viz., the question for the payment of dower had been heard and finally decided in the first suit. It is now well established that adverse finding against the successful party is not a res judicata in a subsequent suit between the parties. If a decree is one of dismissal in favour of the defendant but there is a finding adverse to him on any point a plea of res judicara cannot be based upon the decision, because the defendant having succeeded on the other plea has no occasion to challenge that order fn appeal. It was held in Mienapur Zamindar Company Ltd. v. Naresh Narayan Roy (A I R 1922 P C 241): "The question of occupancy right was not res judicata In the suit of 1877, for the tenant, having succeeded on the other plea, had no occasion to go further as to the finding against him." In Abdul Qayum and others v. Abdul Rahman and others (A I R 1933 Oudh 439) it was held: "Where a person succeeds in a suit the fact that he does not appeal against some adverse finding does not operate as res judicata against him when same question is raised in subsequent suit". The same view was taken in Radha Hambtrrao Patil and others v. Dinkarrao Hambirrao Paul (A I R 1937 Bom. 208) and Parathanath and another v. Rameshwar Pratap Sahi (A I R 1938 All. 491). In Abdul Rahman Mullick and others v. Azahar Ali Khan (A I R 1935 Cal. 733) the facts were that in a suit instituted against the defendant for khas possession, the plaintiff alleged that the lease granted to the defendant was not valid. The defendant resisted the claim for khas possession on two grounds: (1) that the said lease was a valid lease and (2) that in any event ha having acquired occupancy right could not be evicted from the lands. The Court held that the lease was invalid but found that the defendant was an occupancy not and so could not be evicted from the lands. Subsequently the plaintiffs sued for enhancement of rent on the footing that the defendant was an occupancy not. The defendant contended that he had a. valid lease in his favour and after discussing the case‑law it was held that "the tenant‑defendant won the prior suit on the finding that he was an occupancy ryot. The suit would have failed if he had at least an occupancy right. The finding, against which he could not appeal, that the aforesaid lease was invalid did not sustain the decree made in that suit, for in spite of that finding the plaintiff's suit was dismissed. Hence the decision on the Issue of validity of lease was not a final decision and did not operate as res judicata. In Gogineni Bapayya v. Gogineni Ramekirshnayya and others (A I R 1945 Mad. 39) the plaintiff filed a suit for partition. The defendant pleaded that the suit was bad as being for partial partition. The suit was dismissed. The defendant felt dissatisfied with some statement In the Judgment. It was held that finding did not operate as res judicata because the suit having been dismissed and the decision being in his favour, he could not challenge the decree in appeal. In Thakur Magundeo v. Thakur Mahadev Singh (18 Cal. 647) a landlord sued to eject his tenant who defended upon the ground that the tenure was permanent. A previous suit by the plaintiff had been dismissed on the ground that no notice to quit had been served, but the Court held at the same time that the tenure was not permanent. It was held that the previous decision was not res judicata, "the decree dismissing the suit being based, not upon the finding adverse to the defendant in that case, but in spite of it." The same view was held in Abhey Ram and another v. Jhanda and others (A I R 1929 All. 910).

3. Thus the finding about the dower will not operate as res judicata for the reason that the petitioner could not challenge that order in appeal, the decision being in her favour. The matter was thus not heard and finally decided. The petitioner's apprehension that it will be pressed into service to operate, as res Judicata in the suit which sire has filed for recovery of the amount is misconceived. The petitioner is, in these circumstances, not an aggrieved person and has, therefore, no right to file a petition under Article 201 which is dismissed in limine. S. A. H. Petition dismissed.