1990 PLP 33 (CLC)

Mir Dad Khan for Respondent. Date of hearing: 20th September, 1989. In this revision the judgments and decrees of both the learned Courts have been impugned whereby the original Court through its judgment dated 5‑6 1982 dismissed the suit filed by the plaintiff‑petitioner and the appellate Court by its judgment of 27‑3‑1984 confirmed the said decision.

2. Plaintiff‑petitioner Allah Dad brought this suit for a declaration that he and defendants 29 to 53 have become owners of 1/4 share out of the suit land through its purchase from one Mir Abdullah Shah by a sale‑deed of 13‑12‑1982 and of the other 1/4th share also by purchase from Muhammad Shah and Akbar Hussain son of Mir Abdullah Shah. He claimed himself and defendants Nos.29 to 53 to be perpetual lessees of the remaining half. It was, therefore, prayed that the entries contrary to the said factual position in the revenue record are incorrect and need rectification. It was also alleged that through deeds dated 28‑5‑1980 and 6‑12‑1981 the share of Madat Shah, predecessor of defendants 1 and 2 has remained mortgaged with him and defendants Nos.29 to 53 for more than 60 years and as such the mortgagor's rights in this property have extinguished by efflux of the prescribed period and, therefore, mutation No.62 dated 13‑6‑1982 and some other mutations to the extent of affecting the rights of the plaintiff and proforma defendants 29 to 53 are illegal and ineffective.

3. This suit was contested by defendants 1 and 2, 3 to 17 and 22 to 28 who in their written statements besides controverting the claim of the plaintiff on factual plank also took up the plea of the suit being non‑maintainable on account of res judicata and non‑inclusion of the whole claim as required by Order Il, Rule

2. As the trial Court has mainly and the appellate Court has solely non‑suited the plaintiff‑petitioner on the said two grounds and these were the only issues agitated before me, therefore, I will confine the narration of facts only relevant to the decision of these issues of res judicata and bar of the suit under Order 2 Rule

2. It is deplorable to note that the lower Courts failed to give a clear and ascertainable account of the entire litigation on the basis of which these two issues were answered against the petitioner.

4. Muhammad Shah respondent No.1 filed an application under section 4 of the N.‑W.F.P. Restitution of Mortgaged Lands Act, 1950 against the petitioner and others who had been shown mortgagees of the property in suit. This application was accepted by the learned Collector through his order dated 15‑1 1959 and the appeal against this order was dismissed by the learned Additional Commissioner vide order dated 27‑8‑1959 The plaintiff alongwith others then instituted suit No.565/1 of 1959 captioned as Mst. Hayati v. Muhammad Shah for a declaration to the effect that they have become owners of the suit land by prescription for having remained in its possession as mortgagees for more than 60 years, that whatever rights the defendants had in the property those stood extinct by lapse of the prescribed period of limitation, that the mortgage having not remained as subsisting one, therefore, the orders of the Collector of 15‑1‑1959 and also that of the appellate Court regarding the restitution of the land in question in favour of the defendants are illegal, without jurisdiction and, therefore, are liable to be set aside. This suit was contested by the defendants and the learned trial Judge by his judgment dated 30=7‑1962 dismissed the suit holding that the petition for restitution of the mortgage was rigthly accepted as the mortgage was by then subsisting and its restitution could legally be ordered by the Collector because the plaintiff had not prescribed title to the suit land by lapse of time. This decision was, challenged upto Supreme Court but with no better result.

5. The present suit which has given rise to the revision was then brought by Allah Dad (petitioner) one of the plaintiffs in the earlier civil suit and a party to the Restitution petition before the Collector, with the allegations and for the reliefs detailed above.

6. The learned counsel arguing for the petitioner at the very outset conceded that in view of the earlier decision against the petitioner he would not be legally justified to press for the relief No. `Jeem' in the plaint which contains the old prayer of the petitioner having become owner of the suit property by prescription and for declaration of the order dated 15‑1‑1959 of the Collector as illegal. The learned counsel when asked whether the land in the suit was also subject‑matter of the earlier suit he admitted that except Khasra No.939 the other Khasra numbers are the same as were in dispute in the earlier suit. However, he submitted that the doctrine of res judicata would have no application in this case as the two reliefs now claimed in parts `Alif' and `Bay' were not asked for in the earlier suit and similarly, Khasra No.939 did not form subject‑matter of the former suit. In this context he referred to explanation 3 to section 11 and argued that a matter which has neither been alleged by one party nor denied by the other will net be hit by res judicata. The learned counsel was of the view that the reliefs claimed in the instant suit were not prayed for in the earlier suit and in absence of any adjudication it will be against the spirit of law and would be inequitable to apply bar of res judicata against his clients.

7. The learned counsel is oblivious of the principle of constructive res judicata as contained in explanation I J to Section 11 and of the other relevant provisions of Order 2 Rule

2. In order to apply the bar of res judicata the test is whether the reliefs now claimed were available to him at tire time of the institution of the first suit and whether these could have been asked for in that suit, because by force of the doctrine of constructive res judicata he was bound to have brought his whole claim to the Court, to have urged all the grounds in his support available to him and to have sought all the reliefs he could seek at that time. This principle of constructive res judicata bars the trial in subsequent suit of all the matters which might and ought to have been alleged. In view of constructive res judicata a decision is final not only to the matters actually determined in the decision but also to the other matters which might and ought to A have been agitated and could have been resolved in that decision. These reliefs which have now been added in the present suit are based on the same, cause of action which prompted the plaintiff to institute the former suit and these being available at the time of filing the earlier suit could have been based on the same cause of action, but now' a second suit cannot legally be sustained on the same cause of action even for reliefs not claimed in the first suit. Because of this principle of constructive res judicata piecemeal litigation is precluded and the hardships and inconveniences resulting from repeated litigation on the same cause of action are checked. Moreover, under Order 2 Rule 1 the plaintiff- petitioner was required to have framed his earlier suit in a manner which should have helped final adjudication of the subject in dispute and under the, provisions of Order 2 rule 1 the entire claim to which a suitor is entitled shall be included in the suit and in case he omits to do so the Order 2 rule 2 dictates that such left up claim cannot form subject of the second suit. Therefore, under the provision of constructive res judicata the plaintiff was not competent to file the present suit on the basis of same cause of action although on different grounds or for different reliefs and under Order 2 Rule 2 he is debarred to include the left up Khasra No.939 in the present suit. The learned Courts have, therefore, correctly non suited the petitioner and maintain the said decisions on this point.

8. The learned trial Court while answering issues Nos.5 and 14 relating to vexatious and false nature of the claim of the plaintiff has awarded compensatory costs of Rs.5000 to the defendants under section 35‑A of the Civil Procedure Code. But the learned counsel argued that this section 35‑A has been inserted by Section 2 of the Civil Procedure (Amendment) Act 1922, and under section 1 (2) of the said Act the amendment so brought can be enforced by the Provincial Government through notification in the official gazette throughout the Province or any part thereof on such date as may be specified in the notification. However, according to him this amendment has not so far been enforced in the N.W.F.P. through any such Notification. The learned counsel appearing for the respondents expressed their inability to controvert this assertion and they rather conceded the legal position. In such a situation when section 35‑A of the Civil Procedure Code has not so far been applied to N.W.F.P., the order of imposition of costs by way of compensation would be without jurisdiction which is accordingly set aside and the petitioner is absolved of payment of this amount.

9. This revision is partially accepted as indicated above. However, the petitioner will bear the costs of litigation throughout. AA./906/P Order accordingly.