P L D 1993 Karachi 648 (PLP)

The first of the listed applications is for grant of interim injunction to the plaintiff during the pendency of this suit whereas the second such application is filed by the defendant No.1 for rejection of the plaint. I have heard both these applications together. Subject-matter of the suit is an office premises bearing No-3-603, admeasuring 881 sq. ft. on the 6th Floor of Kashif Centre, Sadar, Karachi. Plaintiff, Rahat Mehmood s/o Ashfaq Hussain, claims to have purchased Benami through defendant No.2, Ejazur Rehman, the property in suit per agreement dated 15-1-1987, termed as Supplementary Agreement. Such agreement was entered into, purportedly, between defendant No.1, Tafiq Rasheed, through his attorney and father, Colonel Abdul Rasheed and one Ejazur Rehman (defendant No.2) of M/s. Al-Relunan International. Recitals in that agreement, copy whereof has been filed by the plaintiff, basing the claim thereon, are to the effect that there was an agreement of tenancy of November 1, 1986, between Tariq Rasheed and Ejazur Rehman, touching the property in suit and involving a duration of 3 years; the agreed rental being at the rate of Rs.6 per sq. foot. During the tenure of the tenancy, purportedly, Tariq Rasheed received further sums, totaling 4,82,354, on different dates and occasions and "the matter developed into sale consideration between the parties in respect of the said premises", necessitating the execution of the referred Supplementary Agreement, which envisaged that Ejazur Rehman shall pay to Tariq Rasheed another sum of Rs.59,5W thus making a total of Rs.6,00,000 (apparently inclusive of claimed rental payment of Rs.58,146). Such payment of Rs.59,5W having been made, Tariq Rasheed, aforesaid, was to execute a proper sale-deed in favour of the- referred Ejazur Rehman. Tariq Rashe-ed was acknowledged to be the owner of the premises in question, deriving entitlement by virtue of a sub-lease granted by M/s. Kashif Centre/Standard Estates (Private), Karachi. The Supplementary Agreement, so-called, then envisaged that Ejazur Rehman had thus become authorised and empowered to sublet the premises in question or part with it on goodwill basis to any person or persons, as be desired by him and to hold the premises without any hindrance, interruption or eviction at the hands of Tariq Rahseed or those equitably claiming under him. Possession of the premises with Ejazur Rehman was thus envisaged as free from all liens, charges or encumbrances. Expenses for completion of sale were to be borne by Ejazar Rehman. The relationship between the parties was recorded to have changed, pursuant to such Supplementary Agreement, from that of landlord and tenant to that of seller and purchaser. The original of such agreement on a stamp paper of Rs.10, issued in the name of one Muhammad Ayub Khan on 14-1-1987, bears signatures allegedly of the parties and of the witnesses (an illegible) and attestation by Muhammad Shahabuddin, Notary Public, on 15-1-1987. The same document, in the shape of photostat of a certified copy obtained from the Court of the District and Sessions Court, Karachi South, issued on 10-11-1990 shows an undated attestation as well as attestation by S. Nasir A Notary Public, dated 17-7-1990. These are serious inconsistencies in documents, either of which has been produced by the plaintiff himself. The plaintiff has next relied on an undertaking, dated 16-2-1989, photostat copy whereof has been annexed with the plaint. Such is an undertaking by the above Ejazur Relunan on a stamp paper of Rs.10, purportedly, issued in the name of Ejazur Rehman, reciting that plaintiff, Rahat Mehmood, had paid Rs.6,00,OW on different dates and occasions for purchase of the disputed office premises to Ejazur Relunan out of which said Ejazur Relunan paid Rs.5,40,500 to Colonel Abdul Rasheed, Attorney and father of Tariq Rasheed, owner of the premises, who in turn entered into a sale agreement in the name of Ejazur Rehman, which, as per recital was a Benami transaction and Ejazur Rehman was only a Benamidar, the real purchaser being plaintiff, Rabat Mehmood, who was at liberty to get the sale-deed registered direct in his own name after making payment of the balance consideration. The photostat copy appended with the plaint is signed ostensibly by Ejazur Rehman alone and attested by Zahoor Khan, Notary Public, on 16-2-1989. The original of such undertaking has also later been placed on record by Mirza Ghayasuddin Baig, learned counsel for the plaintiff, and is identical. While the plaint is largely ambiguous and even nebulous, the foregoing facts having been deduced from appended documents, on which the suit is based, it goes on to recite that while the plaintiff was peacefully running his business at the disputed premises "all of sudden a few days back he came to know from the bailiff of the Court of the learned IV th Rent Controller, Karachi, South, who came to the office premises for execution of a writ of possession in Rent Case No.696 of 1990: Tariq Rasheed v. Al-Rehman International that such premises were the subject-matter of an order of eviction, -even though the. same stood already purchased by the plaintiff and the plaintiff was totally protected under section 53-A of the Transfer of Property Act. The plaintiff thereupon also allegedly learnt that Tariq Rasheed had obtained the order of eviction on 3-1-1991 (copy filed with the plaint) and that appeal filed by Faiq Hussain in the High Court of Sindh at Karachi had failed. Plaintiff claimed that he was entitled to get the property demised in his name and that Tariq Rasheed was fraudulently pursuing the matter of eviction, orders wherein were ab initio void and of no legal effect. Plaintiff also averred that he was always ready to perform his part of the contract, while Tariq Rasheed was fraudulently denying it even though he had notice of plaintiffs rights. Cause of action was claimed to have arisen on 16-2-1989, the date of the undertaking, payment of consideration' and on 1-7-1992, when the plaintiff came to know that eviction from the premises was being sought. The suit was filed on 8-7-1992. At a later stage in the proceedings, the High Court order in F.R.A. No.80 oC 1991,, dated 12-4-1992, has also been brought on record. Orders in the rent case and the F.R.A. arising therefrom, can therefore be referred to as part and parcel of the averments in, the plaint in order to assess whether the plaint is liable to be rejected, as barred by law, upon terms pleaded by the plaintiff himself. Having examined the averments in the plaint and perused the contents of the Supplementary Agreement together with the undertaking above referred we may now advert to the orders of the IV th Controller, Karachi South, dated 3-1-1991 in Rent Case No. 696 of 1990 and the consequential judgment of this Court in F.R.A. No.80 of 1991. Both these adjudication are referred to and questioned in the suit. Copies being available on record can, therefore, be resorted to in order to see whether, the present suit is barred on account of such two determinations: See Order VI, rule 9, C.P.C. Rent Case No. 696 of 1990 was instituted by Tariq Rasheed (defendant No.1 here) against 4J-Rehman International through Ejazur Rehman in the purported capacity of tenant (Ejazur Rehman cited as defendant No.2 in this suit). The rent case was based on an alleged default in payment of rent by the tenant. Subsequently, one Muhammad Faiq Hussain s/o M. Ashfaq sought to be joined as a respondent in the rent case and was so joined. The defendant No.1 in this suit has urged that plaintiff Rabat Mehmood is a real brother of the said Faiq Hussain. For the purposes of Order VU, Rule 11, C.P.C., as regards bar of suit, we are confined to the plaint and the documents on which the plaint is founded or which are referred to or relied upon in it. Muhammad Faiq Hussain, even on such material, does appear to be the brother of plaintiff, Rabat Mehmood, because in the plaint parentage of Rabat Mehmood is shown as that of Muhammad Ashfaq Hussain and in the rent case Muhammad Faiq Hussain has the parentage of A Ashfaq. Be that as it may, in the rent case, landlord, Tariq Rasheed, relied upon a tenancy agreement dated 1-11-1986 and urged that the tenant was in arrears of rent from May, 1988. Two cheques by way of rent in the sums of Rs. 16,500 each, dated 22-9-1988 and 4-lG-1988 respectively were allegedly passed on by the tenant but the same were dishonoured. The landlord denied that he had executed any sale agreement with the tenant, as alleged by Faiq Hussain. He claimed that the tenant had no authority to lease out the premises to Faiq Hussain. Faiq Hussain alone defending the rent case, Ejazur Rehman remaining absent, in his affidavit-in-evidence denied these pleas and said that neither Al-Rehman International through Ejazur Rehmaft was tenant of Tariq Rasheed nor there was any relationship between Faiq Hussain and Tariq Rasheed. Reliance was placed by him on the same Supplementary Agreement dated 15-1-1987, as above, and it was averred that after its date Ejazur Rehman had become the landlord, having the power to sublet. The Controller noted that when the purported Supplementary Agreement was confronted to the attorney and father of Tariq Rasheed (who was alleged to have executed it) he denied the same and maintained that such was a forged document. The Controller also examined the tenancy agreement dated 1-11-1986 and observed that the same was for a term of 3 years. The Controller further observed that Ejazur Rehman, from whom Faiq Hussain had claimed, was not produced in evidence nor was any rent receipt submitted by him from said Ejazur Rehman. No witness other than himself was produced by Faiq Hussain. The Controller concluded that Faiq Hussain was in collusion with Ejazur Rehman. In such circumstances, eviction was brought about, as said, on 3-1-1991. F.R.A. No.80 of 1991 was preferred by Al-Rehman, International through Ejazur Rehman, against Tariq Rasheed and Faiq Hussain. In its judgment, dated 12-4-1992, in such F.R.A. this Court observed that while Al Rehman International (through Ejazur Rehman) had not defended the proceedings before the Controller the F.R.A. was preferred by that party, Faiq Hussain not appealing at all nor even supporting the appellant in the F.R.A. In such circumstances, the evidence led against the appellant had remained unrebutted, the principal documentary evidence being the agreement of tenancy dated 1-11-1986 and the two dishonoured cheques. This agreement was curiously denied. in appeal also by Ejazur Rehman, totally oblivious of the fact that the same was expressly mentioned in the referred Supplementary Agreement dated 15-1-1987, itself, which was relied upon. As to the so-called Supplementary Agreement it was observed in the, F.R.A. that even according to the same Tariq Rasheed was the owner of the premises. The learned Judge also noted that it was nobody's case that rent for the allegedly defaulted period was paid up to the filing of the ejectment application. Taking the Supplementary Agreement in question on face value, for what it was worth, the order of this Court in the F.R.A. pointedly makes mention of the fact that even such agreement was manifestly not acted upon and the balance amount therein was not paid, so as to complete the alleged sale. In such circumstances, default having been proved the order of eviction was upheld. Now taking up all the foregoing facts, as gleaned from the plaint and co-relative documentary material, it is clear that inconsistent and even mutually destructive pleas have throughout been projected from the side firstly of Faiq Hussain, a brother of the plaintiff, secondly by Al-Rehman International (through Ejazur Rehman) and finally by Rahat Mehmood, the plaintiff himself. It is noteworthy that in the first round of proceedings tenancy was totally denied by Faiq Hussain, who alone contested the rent case. He, instead, drawing on the purported Supplementary Agreement, claimed ownership in the name of Ejazur Rehman. Both pleas were rejected by the Controller. Later, at the appellate stage, Ejazzur Rehman, who appealed in the name of Al Rehman International, also denied the tenancy and pleaded his own title. This Faiq Hussain, as well as Ejazur Rehman, did notwithstanding the fact that in the very Supplementary Agreement, manifestly, Ejazur Rehman was initially given out to be a tenant. What is more, in the F.R.A. Ejazur Rehman went to the extent of disowning the agreement of tenancy dated 1-11-1986, in spite of such agreement, with precise reference to its date, being expressly made the foundation on which the alleged Supplementary Agreement purportedly proceeded. The Supplementary Agreement was disbelieved by the Controller and its claimed author, Col. Rasheed, disowned it as forged and fabricated. In the F.R.A. the findings of the Controller were not disturbed, this Court adding that even on its face value, such remained patently wanting in compliance from the side of Ejazur Rehman himself Thus and in terms of the plaint itself there has been an earlier binding I adjudication between the same or similar parties i.e. those under whom they claim, plaintiff here claiming under or collaterally with Ejazur Rehman. As the purported Benamidar, what binds Ejazur Rehman also binds Rahat Mehmood, the plaintiff here. The matters directly and substantially in issue in the previous adjudication, which has attained finality, are the same as are projected in this suit. However, the rule in section 11 of the Code of Civil Procedure enacting bar for a subsequent suit is not strictly applicable here because the earlier in all decision was not rendered in a suit but in rent proceedings, before a forum of A exclusive jurisdiction. The statutory principles of res. judicata cannot, therefore, be strictly invoked. The doctrine of res judicata, however, is not confined to section 11 of the Code, which contemplates successive suits, involving the same questions, directly and substantially in issue between the same parties or under whom they or any of them claim, one of the suits standing already decided and attaining finality. The doctrine is based on general principles of law. Section 11 of the Civil Procedure Code merely enacts the rule in relation to suits. It leaves the pristine concept intact. A plea of res judicata, therefore, can be founded on earlier decisions of Courts or Tribunals of exclusive jurisdiction. All that has to be shown is that the previous decision was competently taken and has attained finality. Converse of this proposition is also true. Final decision in a suit likewise between the same parties and covering the same issues, directly and substantially involved, can be pleaded as bar before other Courts or Tribunals of exclusive jurisdiction. Such bar, on general principles, therefore, applies here: Balakotayya v. Nagayya, AIR 1946 Mad. 509, Raj Lakshmi Dasi v. Banarnali Sen, AIR 1953 SC

33. With specific reference to eviction proceedings in rent cases, involving determination of title and binding effect thereof in subsequent proceedings, such as Constitutional petitions and civil suits, the rule laid down is that a finding as to title in earlier rent proceedings would be binding on parties or those under whom they or any of them claim if the adjudication as to title was essential in the rent matter and if the- special forum of the Controller or the higher forum in the exclusive jurisdiction, in spite of summary character of the proceedings before them, did not find it necessary to permit a subsequent recourse to a remedy in a Civil Court. Final decision in a rent case, in such circumstances, would operate 'as res judicata for a subsequent civil action: Rehmatullah v. Ali Muhammad 1983 SCMR 1064, S.M. Hayat v. Ikramul Haq Malk 1984 CLC 3176, Pchlaj Rai v. Khem Chand, 1987 SCMR 1772 and Ahmed Shah v. Bibi Sakhian, PLD 1990 Lah.

48. Next, at no stage of the rent proceedings any plea of Benami transaction was raised, which for the first 'time has found mention in the suit now filed. Al-Rehman International/Ejazur Rehman has been conclusively found to be the tenant and has been ordered to be 'evicted and so also Faiq Hussain, a brother of the present plaintiff. The so-called undertaking which is a document purportedly signed' by Ejazur Rehman alone, is a patently unilateral act, without involving defendant No.1, Tariq Rashid, in any manner. The belated plea of Banami character of the transaction is thus also barred by the rule of Contructive Res Judicata. Ejazur Rehman and under him plaintiff, Rahat Mchmood are thus clearly bound by the earlier proceedings. Just as Ejazur Rehman fought shy to appear before the Controller in the rent case he has, for obvious reasons, chosen to remain on the side-lines in this suit, neither prosecuting it with the plaintiff nor defending it, as a defendant. It, accordingly, becomes manifest that Faiq Hussain, Ejazur Rehman and now plaintiff, Rahat Mehmood, in that order, have successively abused that process of the Court.' Documentary material above-referred supports that conclusion. Such kind of litigation, which is barred upon general principles of res judicata, must be throttled at the outset. A still-born suit must be buried without the formality of a ceremony. Mischief must be nipped in the bud. The Court has to firmly deal with such matters: Burmah Eastern Ltd. v. Employees' Union, PLD 1967 Dacca 190, T. Arivandandam v. T.V. Satyapal, AIR 1977 SC 2421; Diamond Rubber Mills v. P.T. Corporation 1989 CLC 1989. For rejection of the plaint in a suit, which is what is sought by the defendant No.1 through C.M.A. 3935 of 1992, it is normally the statements in the plaint itself or in the documents on which it is based or upon which it draws that can be taken recourse to. However, Order VII, rule 11, C.P.C. is not exhaustive of the situations in which a plaint may be rejected Burmah Eastern I-td. v. Employees 'Union ibid; Muhammad Akhtar v. Abdul Had 1981 SCMR 878 and Shahnaz Beguin v. Zulaikha Bib4 1990 CLC 1526. Larger considerations of justice must always outweigh technicalities. Accordingly, the plaint being found to be barred by law, attracting the principle of res judicata as well as estoppel by conduct, is resultantly rejected and with it the application for injunction (C.M.A. 3909 of 1992) is dismissed. Order accordingly. AA./R-248/K Order accordingly.