2026 PLP 664 (MLD)

IQBAL AHMED KASI, J.

Through the instant petition, the petitioner/plaintiff has challenged the validity of the order dated 28.02.2023 ( the impugned order ) passed by the Civil Judge, Kuchlak ( the trial Court ) and order dated 15.06.2023 ( the impugned order ) passed by the Additional District Judge, Kuchlak ( the lower appellate Court ), whereby, suit filed by the petitioner/plaintiff was dismissed by the trial Court as well as by the appellate Court.

2. Brief facts for filing of instant petition are that the petitioner/plaintiff filed civil suit for declaration, cancellation of the agreement, possession, and permanent injunction with the following prayer:- A) To declare that the plaintiff is legal and lawful exclusive owner of suit property bearing Khasra Nos.1184 and 185 Mohal Khushkaba, Mouza Kuchlak Tappa Kuchlak District Quetta. B) Declaring that the defendant No.1 failed to abide by the terms of the agreement dated 01.04.2013 and also failed to fulfill his part of obligations thus the agreement dated 01.04.2013 stands canceled. C) Declaring that the defendant No.1 is illegal occupant over the suit property and his act of transferring possession to the defendants 2 and 3 is also illegal and unlawful as such the defendants 2 and 3 may also be declared illegal and unlawful occupants over the suit property. D) Declaring that the defendants 2 and 3 have no legal right or entitlement over the suit property and their possession is also illegal and unlawfull. E) Declaring that the plaintiff being legal and lawful recorded owner is entitled for possession of suit property and possession may also be granted to the plaintiff. F) Through injunction the defendants may be restrained from construction, transferring, alienating, changing nature of the suit property. G) Any other relief deemed fit and proper in the circumstances of the case may also be awarded.

3. Notices were issued to the respondents/defendants, but despite service, respondents/defendants failed to appear before the trial Court, as such, they were proceeded against ex-parte.

4. The trial Court out of the assertions of the plaint, framed the following issues:-

1. Whether suit of the plaintiff is hit by section 11 C.P.C.?

2. Whether plaintiff is exclusive owner of property bearing Khasra Nos.1184 and 1185 situated at Mohal Khushkaba, Mouza Kuchlak, Tappa Kuchlak, District Quetta?

3. Whether defendant No.1 has failed to abide by the terms of agreement dated 01.04.2013 and agreement is liable to be cancelled?

4. Whether defendant No.1 is in illegal possession of the suit property and he has illegally alienated it to defendants Nos.2 and 3?

5. Whether the plaintiff is entitled for the relief claimed for?

6. Reliefs?

5. Before adducing any evidence, the petitioner/plaintiff and his counsel were asked to first argue the matter on legal issues. After hearing arguments from learned counsel for the petitioner/plaintiff, the trial Court vide impugned order dated 28th February, 2023 dismissed the suit.

6. Being aggrieved and dissatisfied from the impugned order, the petitioner/plaintiff filed an appeal under Section 96, C.P.C. before the lower appellate Court. After registration of the appeal, the lower appellate Court issued notices to the respondents/defendants. The respondents/defendants appeared through their counsel. After hearing arguments from both sides, the lower appellate Court dismissed the same vide impugned order dated 15th June, 2023 and upheld that order of the trial Court, hence, this petition.

7. Learned counsel for the petitioner/plaintiff inter alia contended that the impugned orders are the result of misreading and non-reading; that the lower appellate Court has failed to apply judicious mind; that the petitioner/plaintiff agitated a fresh and new cause of action and the cause of action agitated was different from the previous suit; that both the Courts below failed to consider this important legal position; that the previous suit to the extent of respondent/defendant No.1 was not decided on merits; that the Courts below have misinterpreted the law specifically Order II, Rule 2, C.P.C.

8. On the other hand, learned counsel for respondents Nos.2 and 3 opposed the contention of the learned counsel for the petitioner/plaintiff and contended that during the previous round of litigation, the petitioner/plaintiff relinquished the claim in respect of respondent/defendant No.1; that both the lower Courts rightly rejected the suit of petitioner/plaintiff; that the suit of petitioner/plaintiff hits by res-judicata and both the lower Courts well-appreciated this legal aspect of the case.

9. I have heard learned counsel for the parties and perused the available record with their able assistance. It is well-settled exposition of law that Section 115, C.P.C empowers and meets out the High Court to satisfy and reassure itself that the order of the subordinate Court is within its jurisdiction; the case is one in which the Court ought to exercise jurisdiction and in exercising jurisdiction, the Court has not acted illegally or in breach of some provision of law or with material irregularity or by committing some error of procedure in the course of the trial which affected the ultimate decision. If the High Court is satisfied that aforesaid principles have not been unheeded or disregarded by the Courts below, it has no power to interfere in the conclusion of the subordinate Court upon questions of fact or law. The scope of revisional jurisdiction is limited to the extent of misreading or non-reading of evidence, jurisdictional error, or an illegality of the nature in the judgment which may have material effect on the result of the case or if the conclusion drawn therein is perverse or conflicting to the law. Furthermore, the High Court has very limited jurisdiction to interfere in the concurrent conclusions arrived at by the Courts below while exercising power under section 115, C.P.C. In the case of Cantonment Board through Executive Officer, Cantt. Board, Rawalpindi v. Ikhlaq Ahmed and others 2014 SCMR 161, the Hon ble Supreme Court of Pakistan held that the provisions of Section 115, C.P.C under which a High Court exercises its revisional jurisdiction, confer an exceptional and necessary power intended to secure effective exercise of its superintendence and visitorial powers of correction unhindered by technicalities.

10. It is the case of the petitioner/plaintiff that he is the owner of the property bearing Khasra Nos.1184 and 185, situated at Mohal Khushkaba, Mouza Kuchlak, Tappa Kuchlak, District Quetta ( the property in question/suit property ). He further claimed that initially 4000 sq.ft. land was illegally possessed by one Muhammad Zaman and others, including respondent/defendant No.1, therefore, petitioner/plaintiff along with his other brothers, sisters, and mother filed a civil suit titled Wazir Bibi and others v. Muhammad Zaman and others and during pendency of that suit, petitioner/plaintiff and others have entered into compromise with respondent/defendant No.1, according to which respondent/defendant No.1 was bound to pay the price of land illegally possessed by him, while plaintiffs of that suit were bound to mutate the land in his name, but the application of plaintiffs of that suit under Order XXIII, Rule 3, C.P.C. was dismissed by the trial Court vide order dated 13.06.2013 as under:- The plaintiff has mentioned in his 4th amended suit in Para No.4, he recently came to know that the defendants sold out the property in question to some unknown people. Besides this, plaintiff has not mentioned in his prayer clause, how much property has grabbed by whom defendant and be recovered. The said controversy could not be resolved after a fulfill trial, applicant/plaintiff should prove his ownership through reliable evidence, therefore, application moved under Order XXIII Rule 3, C.P.C. is hereby dismissed. Application is disposed of accordingly.

11. The petitioner/plaintiff further asserted that the former suit of plaintiffs was dismissed by the trial Court vide judgment dated 12.03.2022 and the present respondent/defendant No.1 did not honor the compromise and transferred the possession of land illegally possessed by him to the respondents Nos.2 and 3/defendants.

12. Though according to the petitioner/plaintiff, the matter was settled with respondent/defendant No.1 in previous suit on the basis of compromise, but no compromise has been filed in the previous suit nor suit to the extent of the respondent/defendant No.1 has been withdrawn on the basis of compromise with permission to file afresh one.

13. The rule of res-judicata is based on the consideration that nobody is to be vexed twice for the same cause and that it is in the interest of an individual and the State that there should be an end to litigation. Reference in this respect is to be made to cases reported as PLD 2004 SC 178, PLD 1974 SC 80 and 2006 SCMR 1262.

14. To define clarity the principle contained in Section 11, C.P.C, six explanations have been provided. Explanation I, states that expressions former suit refer to a suit which had been decided prior to the suit in question. Explanation II, states that competence of a Court shall be determined irrespective of whether any provision as to a right of appeal from the decision of such Court. Explanation III, states that the matter directly and substantively in issue in the former suit, must have been alleged by one party either denied or admitted expressly or impliedly by the other party. Explanation IV, provides that any matter which might or ought to have been made a ground of defence or attack in such former suit, shall be deemed to have been a matter directly and substantially in issue in such suit.

15. Principle of constructive res-judicata emerges from Explanation IV of Section 11, C.P.C, which read with Explanation III, both of which explain the concept of matter directly and substantially in issue . As per explanation IV, of Section 11, C.P.C, even though a particular ground of defense or attack was not actually taken in the earlier suit, if it was capable of being taken in the earlier suit, it became a bar in view of titled principle of constructive res-judicata. Constructive res-judicata deal with grounds of attack and defence which ought to have been raised, but not raised, such omission attracted the principle of constructive res-judicata. Reference in this respect is to be made to a case titled Khushi Muhammad and 2 others v. The Province of the Punjab Through Secretary to Government of the Punjab and 2 others 1999 SCMR 1633. From the above, it is clear that in view of Explanation IV of Section 11, C.P.C, an adjudication is conclusive and final, not only as to the actual matter determined, but as to every other matter which the parties might and ought to have litigated and have had decided, as incidental to or essentially connected with the subject matter of the litigation and every matter coming into the legitimate purview of the original action, both in respect of claim and defence.

16. While quoting the instant case on the above touchstone, it manifests that the earlier suit of the present plaintiff, his brothers, sisters, and mother, was decided regarding the same subject matter, wherein, the respondent/defendant No.1 was also party in that suit. On the other hand, the petitioner/plaintiff in the instant case has prayed for cancellation of the agreement dated 01.04.2013, which has not been executed by him, rather the same was executed by his brother, namely, Agha Muhammad. Further, the petitioner/plaintiff was not party of the agreement and he was only the marginal witness of the same. Furthermore, no power of attorney was issued by the petitioner/plaintiff in favour of Agha Muhammad to execute any sort of agreement, therefore, the petitioner/plaintiff is not the aggrieved person the other brothers, sisters, and mother have not made party in the instant suit. Perusal of formal and instant suits shows that the subject matter is the same, the parties are also the same and the matter has finally decided by the competent Court of law, therefore, both the Courts below well-appreciated that the suit of the petitioner/plaintiff is clearly hit by Section 11, C.P.C.

17. Now adverting to Order II, Rule 2, C.P.C. of C.P.C. reads as under:- "Suit to include the whole claim.--(1) Every suit shall include whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court. Relinquishment of part of claim.--(2)Where a plaintiff omits to sue in respect of, or intentionally relinquish any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. Omission to sue for one of several reliefs.

(3) A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted." The object of Order II, Rule 2 of C.P.C. is twofold, first to ensure that no defendant is sued and vexed twice in regard to the same cause of action. Second is to prevent a plaintiff from splitting any claim and remedies bases on the same cause of action. The effect of Order II, Rule 2 of the C.P.C. is to bar a plaintiff, who had earlier claimed certain relief/remedies action. For filing second suit in regard to other relief bases on the same cause of action. It does not, however, bar a second suit based on different cause of action. In a case titled Abdul Hakim and 2 others v. Saadullah Khan and 2 others PLD 1970 SC 63 observed that second suit on the same subject matter and cause of action is not maintainable. Hence, the suit of petitioner/plaintiff is also clearly hit by Order II, Rule 2, C.P.C. Though the plaintiffs of the previous suit have relinquished their claim regarding the present suit property, but neither filed any compromise deed nor withdrawn the suit to the extent of the present respondent/defendant No.1 and one Abdul Raheem. Both the suits were decided on merits. Thus, in view of the above facts and circumstances, both the Courts below rightly appreciated Order II, Rule 2, C.P.C. Resultantly, the instant petition being devoid of merits, is hereby dismissed. MH/8/Bal. Revision dismissed.