2014 PLP 2016 (YLR)

MALIK MANZOOR HUSSAIN, J.

This Revision Petition is directed against the concurrent findings of both the Courts below, whereby plaint of the petitioner was rejected under Order 7, Rule 11 read with section 11 and Order II, Rule 2, C.P.C., by the learned Civil Judge-VI!, Kohat through judgment dated 21-4-2012 and maintained by judgment dated 10-11-2012 passed by the learned Additional District Judge-V, Kohat.

2. Brief facts of the case are that the petitioner filed a suit for declaration, perpetual injunction and possession of the land, fully described in the heading of the plaint and further prayed that Mutation No.1237 attested on 15-7-2003 be declared as false, factitious and ineffective upon the rights of the petitioner. The respondents contested the same by filing written statement and also filed an application under Order VII, Rule 11, C.P.C. for rejection of plaint on the ground of previous decided suit and also annexed the record of previous litigation between the parties. Thus after receiving reply of the same, the learned Trial Court, after hearing both the parties, through order dated 21-4-2012 while applying the rule of res judicata and Order II, Rule 2, C.P.C., rejected the plaint under Order VII, Rule 11, C.P.C. Feeling dissatisfied, the petitioner preferred appeal, which was also dismissed through impugned judgment dated 10-11-2012.

3. The learned counsel for the petitioner argued that the learned trial Court has misconceived to properly appreciate the earlier judgment passed and the issue involved in the present suit as well as in the previously decided suit. He further argued that Mutation No.1237 was attested on 15-7-2013, during the pendency of previous suit, thus, the same has been challenged through the new suit on the strength of fresh cause of action. He lastly argued that provisions of section 11, Order II, Rule 2 and Order VII, Rule 11, C.P.C. were not attracted in the circumstances of the case, thus, the impugned judgments be declared as illegal and void and consequently the case may be remanded back to the learned Trial Court.

4. From the record it is established that present petitioner Askar Ali had earlier filed a suit for declaration in respect of suit property, Khata No.610 wherein the 'Iqrar Nama' dated 14-1-2003 and 17-12-1996 executed regarding the same property ha been challenged. The suit was dismissed by the learned trial Court vide judgment and decree dated 23-4-2010, appeal preferred was also dismissed through judgment dated 6-7-2010 passed by the learned Additional District Judge-Ill, Kohat. The petitioner then filedcivil revision before this Court bearing C.R. No1436 of 2010, which also met the same fate through judgment and decree dated 6-2-2012.

5. The petitioner also filed another suit for possession through pre-emption against the property transferred through Mutation No.1237 attested on 15-7-2003, which was dismissed through judgment dated 21-4-2008. The appeal preferred was also dismissed through judgment dated 16-10-2008 passed by the learned DistrictJudge, Kohat. Revision petition bearing C.R. No.835 of 2008 also met the same fate andwas dismissed by judgment and decree dated16-2-2009 passed by this Court.

6. From perusal of the record, it has been noticed by this Court that the parties to earlier lis and the present suit are the same, the property is the same, the mutation with regard to which earlier suit was decided up to this Court is the same, thus, the claim of the petitioner, directly and substantially is the same, that was raised and decided earlier by this Court. The principle of constructive res judicata as laid down in section 11, C.P.C. is fully applicable to the circumstances of the case. The contention of the learned counsel that certain 'Iqrar Namas' had not been questioned in the earlier suit is not sustainable as the same were allegedly executed before institution of the earlier suit and if the cause of action was available to the petitioner, he could have agitate the same in the earlier round of litigation and bar contained under Order II Rule 2 C.P.C. shall come into play against the present petitioner.

7. It is consistent view of this Court as well as that of Hon'ble Apex Court that a suit which on the face of it, is barred because of an express or implied embargo imposed upon it under the law, it should not be allowed to further proceed and Court should reject the plaint under its inherent power. The basic concept is that such a still born suit should be properly buried, at its inception without the formality of a ceremony, so that no further time is consumed on a fruitless litigation. Accordingly, the plaint being found to be barred by law, attracting the principle of res judicata as well as estoppel by conduct, has rightly been rejected.

8. Both the Courts below have properly appreciated the material available on record and correctly applied the law under the circumstances of the case. In view of what has been discussed above, this petition being meritless is dismissed in limine. JJK/406/P Petition dismissed.