P L D 1991 Supreme Court 1109 (PLP)

MUHAMMAD AFZAL ZULLAH, C.J.‑‑‑Leave to appeal was granted in this case as follows:‑ "Civil Petition No. 1204 of 1984 and Civil Petition No. 1205 of 1984 have been filed by Outab‑ud‑Din petitioner and these are directed against order of the Lahore High Court, Lahore dated 9th October, 1984 whereby Civil Revisions of the petitioner were dismissed. Since in both these petitions for leave common questions of fact and law have been raised and as they are directed against the same order, these are being taken up together. "Briefly the facts are that the petitioner claims that he had purchased the bus in dispute from the respondents on instalments basis. He brought a suit for a declaration of his title. On the other hand the respondents also brought a suit to the effect that they were the owners of the said bus. The two suits were consolidated. The trial Court dismissed the petitioner's suit on 24th September 1980 on the ground that the petitioner failed to produce evidence of ownership. Thereafter the petitioner challenged this order in appeal within time. However, on 6th October 1980, the suit of the respondents was decreed. The petitioner filed a separate appeal against that judgment and decree. The Disrict Judge who heard the two appeals of the petitioner dismissed both of them on the ground that the appeal against judgment dated 6th October 1980 was barred by limitation and the other appeal was barred by res judicata on account of the judgment in the other case. Thereafter the judgments of the appellate Court were challenged by way of two civil revisions which were dismissed as stated above. Hence the present two petitions. "Relying on AIR 1927 Lahore 289 (Full Bench) (Mst. Lachhmi v. Mst. Bhulli), it was contended by learned counsel that on the basis of sale deed dated 24th June, 1976 (copy at page 32 of the paper book) the petitioner had purchased the bus in question for a sum of Rs. 85,000 from the respondents. 'He paid first instalment of Rs. 20,000 on 24th June, 1976 and a receipt was duly executed. The remaining balance was paid by him on 11th December, 1976. According to the sale‑deed the property in the bus had already passed in favour of the petitioner. But subsequently when a dispute arose between the parties he filed suit for such a declaration. The petitioner was non‑suited and the respondent's suit was decreed on different dates. However, on merely technical ground the District Judge dismissed the appeal in regard to the judgment dated 6th October, 1980 as time‑barred and so far as the other appeal was concerned, which had been filed within time, it was dismissed merely for the reason that the Court could not pass a contradictory judgment when on the suit brought by the respondents it had already been declared that they were the owners of the bus, and that the appeal against this judgment (dated 6th October, 1980) had been dismissed for want of limitation. Leave is granted in both these petitions in order to consider as to whether the principle of res judicata was attracted to the facts of the present case and that whether the acceptance of the appeal of the petitioner which was within time would have meant passing of a contradictory judgment." As is apparent from the appellate judgment of the District Court, the question of application of res judicata as contained in section 11 of the Code of, Civil Procedure against the appellant, arose when the decree passed in favour of the respondent's suit was adjudged as having attained the finality on account of dismissal of the appellant's first appeal against the said decree as being time barred. When that appeal stood dismissed as time‑barred, it became final, vis‑a vis, the forum of the first appeal Court, therefore, the subsequent hearing of the appeal against the dismissal of appellant's own suit could not proceed. As. according to learned appeal Judge, the other decree in respondent's favour on the same subject‑matter between the same parties had become final as stated above. Therefore, the crucial question in this case as argued by the learned counsel for the appellant is: whether the appeal against the decree passed by the trial Court in favour of the respondent on 24‑9‑1980 was rightly dismissed as time‑barred. The respondent's suit was decreed on 6‑10‑1980. Application for copy was made on 23‑10‑1980 at JaranWala. This application was purported and also held to have been returned to the appellant for presentation at District Headquarter Faisalabad as the file was stated to have been sent there. This return to the appellant of the application for copy, according to the finding of the District Court, took place on 1‑11‑1980. This was so held on the basis of the entries in a Register maintained by the Copying Agency. The relevant official had appeared as a witness to prove the same. It was further held that in spite of presenting the same returned application at Faisalabad within one or two days the appellant took 24 days and filed it on 25th November, 1980 and the copy having been delivered to him on 18‑12‑1980 the filing of the appeal in the District Court on the same day i.e. 18‑12‑1980 had become time‑barred. if this factual statement is treated as correct the appeal was definitely time‑barred. However, we minutely examined the original application returned to the appellant by Jaranwala Copying Agency and presented by him subsequently on 25‑11‑1980 at Faisalabad. There is nothing on this application (which is full of endorsements and other notings) to show that it was returned to the appellant, on 1‑11‑1980. On the contrary there is a note presumably from the Ahlmad of the Court indicating that on 30‑10‑1980 the file was sent to the Copying Agency. If that is so there should have been some further noting on this application by the Copying Agency to show that within one day, not only it processed the so received file but also got it transmitted to Faisalabad the Headquarters; so as to justify the return of the application for copy to the applicant on 1‑11‑1980. There is an endorsement on this application that it was presented at Faisalabad on 25th of November, 1980. However, there is another queer endorsement on this application showing something having been done on 26‑11‑1980 with reference to Jaranwala. A possibility that although the application was returned to the appellant as claimed by him on 25‑11‑1980 (to be presented at Faisalabad) the file from Jaranwala might have been received at Faisalabad a day later i.e. on 26 11‑1980. All this shows that there was a strong probability that the application was not returned to the appellant on 1‑11‑1980 and the appellant's claim that it was returned to him on 25‑11‑1980 was correct. But this strong probability gets confirmed into an actuality by another circumstance. The court‑fee stamp originally affixed on the application submitted at Jaranwala bore on its face the date 22‑10‑1980. It only shows that the stamp was purchased a day earlier than the day of presentation of the application. However, this stamp was cancelled by the Jaranwala Copying Agency on 2‑11‑1980. This is also shown on the face of the stamp and the application. It means that till 2‑11‑1980 this application for copy was still with Copying Agency at Jaranwala therefore, the claim from the respondent's side, as supported by the Copying Agency of Jaranwala, that this application had already been returned to the appellant on 1‑11‑1980 cannot at all be accepted. All this was ignored by or at least was not brought to the notice of the two learned Courts below. Therefore, it being a serious case of misreading and ignoring evidence of. vital nature the revision of the appellant before the High Court, merited to be accepted. We, accordingly set aside the appellate and revisional judgments in the respondent's case wherein a decree was passed in his favour. The result of the foregoing decision 'is that the bar of res judicata even accordingly to the reasoning of the two learned Courts below shall not apply to the consideration of the appellant's appeal and revision, on merits. Accordingly, the decisions in appeal and revision riled by the appellant in his own case are set aside. Thus both the present appeals are allowed. The next question arises as to what should be the operative order in this case. It is pertinent to note that the learned District Judge while deciding the two appeals against the appellant had on the question of the validity of the order of the dismissal of the appellant's suit by the trial Court held as follows:‑‑ "On merits, however, I agree with the learned counsel for the appellant that the suit of Qutab‑ud‑Din could not have been dismissed by the application of Order 17, rule 3 of the Code of Civil Procedure. The suit was fixed for plaintiff's evidence on 3‑9‑1980, when two summoned witnesses namely Rehmat Ali and Muhammad Sarwar were present but the remaining summoned witnessed were not present. The learned Civil Judge had, therefore, to adjourn the suit with the direction that bailable warrants against the witnesses who had not appeared should be issued. On the next date of hearing viz. 24‑9‑1980, again Muhammad Sarwar and Rehmat Ali witnesses were present. The plaintiffs counsel informed the Court that the record with reference to which the witnesses were to depose was not present. The learned Civil Judge observed that as many as six opportunities had earlier been granted to the plaintiff but he had failed to produce his witnesses. He, therefore, closed the plaintiff's side of the case under Order 17, Rule 3 of the Code of Civil Procedure and dismissed the suit. It is obvious that on 3‑9‑1980, when the suit was adjourned to 24‑9‑1980, it was not done on the request of the plaintiff and, therefore, Order 17, Rule 3 of the Code of Civil Procedure could not be invoked for the purpose of closing the plaintiffs evidence." This being the position on the application of Order 17, Rule 3 of the Code of Civil Procedure to the plaintiff's suit, the case has to be remanded to the trial Court by setting aside its judgment and decree in appellant's suit. It may be mentioned here that there was no cross‑objection filed by the respondent against the afore quoted decision of the appellate Court regarding the application of Order 17, Rule 3 of the Code of Civil Procedure‑‑neither in the High Court against the petitioner's Civil Revision nor in this Court against the present appeal. As the suit of the appellant has been remanded to the trial Court for fresh decision and further that as both the suits were originally consolidated to be decided together, therefore, we deem it just and proper to set aside the decree passed in respondent's favour and remand his suit also to the trial Court to be heard afresh together with the other remanded suit, in ‑the consolidated proceedings. There shall be no order as to costs. M.BA./0‑43/S Case remanded.