2002 PLP 2491 (YLR)

(2) Umar Din and others v. Muhammad Sadiq Hussain (1993 SCMR 1089).

3. Learned counsel of the respondents submits that matter has been settled between the parties up to the level of this Court in the earlier round of litigation between the same parties, therefore, both the Courts below were justified to dismiss the suit of the petitioner on the well‑known principle of res judicata. In support of his contention he relied upon the following judgments:‑‑ (1) Rehmat Khan v. Rehmat Khan and another (PLD 1991 SC 275). (2) Muhammad Ismail v. Province of Punjab (1986 CLC 340). He further submits that principle of res judicata is applicable even if the writ petition was dismissed in limine. In support of his contention he relied upon Muhammad Chiragh Din Bhatti v. The Province of West Pakistan (1971 SCMR 447). He further urges that principle of res judicata is applicable in the present case on the basis of evidence and documents produced before the trial Court. The trial Court after applying its independent mind had given findings against the petitioner to the extent that principle of res judicata is attracted in the present case which was upheld by the First Appellate Court. He relied upon Muhammad Shaft v. Muhammad Bakhsh and another (PLD 1971 Lah. 148). He further submits that principle of res judicata is applicable even if the matter was decided without summoning the opposite party. In support of his contention he relied upon Syed Mir Ahmad Shah v. The Pakistan and others (PLD 1979 Lah. 599). He summed up his arguments that earlier suit was decided against the petitioner under Order 17, rule

3. C.P.C. as the petitioners failed to produce: their evidence in the earlier round of litigation. Therefore, principle of res judicata is attracted in all force. In support of his contention he relied upon Shahid Hussain v. Lahore Municipal Corporation (PLD 1981 SC 474).

4. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record myself. It is better and appropriate to reproduce the facts in chronological order to resolve the controversy between the parties:‑‑‑ (i) Muhammad Yamin, Islamuddin and petitioner filed a suit for declaration against the respondents which was dismissed vide judgment and decree, dated 26‑3‑1974 as the petitioner alongwith his co‑plaintiffs failed to produce evidence after providing last opportunity with costs. (ii) The petitioner and other co‑plaintiffs filed appeal before the District Judge, Mianwali who dismissed the same vide judgment and decree dated 17‑5‑1975. The petitioner being aggrieved alongwith his co‑plaintiffs filed Civil Revision No.547 of 1975 which was finally dismissed by this Court in limine, vide order dated 3‑6 1975. (iii) The petitioner filed suit for declaration which was dismissed by the trial Court vide judgment and decree dated 9‑4‑1989 on the ground of res judicata. The petitioner being aggrieved filed appeal before the Additional District Judge, Bhakkar. During the pendency of the appeal parties submitted written compromise and recorded their evidence before the Additional District Judge. The Additional District Judge did not accept the compromise and remanded the case to the trial Court to decide the case after framing preliminary issues qua the question of res judicata vide judgment and decree, dated 10‑1‑1990. It is pertinent to mention here that the petitioner did not tile any revision petition against this order before this Court. The trial Court after remand dismissed the suit after recording evidence and framing issues on question of res judicata vide judgment and decree, dated 11‑2‑1992. The petitioner filed appeal which was dismissed by the First Appellate Court vide judgment and decree, dated 2‑4‑1995.

5. As mentioned above, the judgment and decree dated 10‑1‑1990 was not challenged by the petitioner before this Court. Therefore, the judgment and decree dated 10‑1‑1990 is final between the parties on the well‑known principle of res judicata as per, principle laid down by the Honourable Supreme Court in Pir Bakhsh v. Chairman) Allotment Committee (PLD 1987 SC 145). It is better and appropriate to reproduce the operative part of the judgment dated 10‑1‑1990 to resolve the controversy between the parties:‑‑ "

5. Today the parties' learned counsel have produced before this Court a written compromise. Their joint statement has been recorded. Under the compromise the respondents have admitted the appellants' suit in its entirety and stated that the appellant's suit be decreed in his favour.

6. However, a question was put by this Court to the parties learned counsel as to how a decree could be passed in favour of the appellant when his suit was barred by res judicata as per findings of the learned lower Court. On this question it has been submitted by the appellant's learned counsel that the findings is not based on any legal evidence and the same is erroneous and not warranted by law. This contention is perhaps correct. This question of res judicata is always a mixed question of law and fact and can only be decided after recording the evidence, while the present case the learned Civil Judge did not frame any issue of record any evidence to determine this question. He decided the question after looking into the various documents produced before him for the decision of the application for the grant of temporary injunction. Therefore, the findings of the learned lower Court regarding the suit being res judicata cannot be maintained and the same is set aside. I, therefore, accept this appeal, set aside the impugned order of the learned lower Court and remand the case for its fresh decision in accordance with law. The learned lower Court is directed to frame a preliminary issue on the question of res judicata and also other preliminary issues which may arise from the parties pleadings and decide the same after recording the parties' evidence. If the issue of res judicata is answered against the respondents, the learned lower Court shall record the parties' compromise and decide the case in accordance therewith. The record of the learned lower Court shall be sent back immediately and the parties are directed to appear before the learned lower Court on 21‑1‑1990." The aforesaid operative part clearly reveals that the compromise arrived between the parties was not accepted by the Additional Judge vide aforesaid judgment and decree. In this view of the matter, the contentions of the learned counsel of the petitioner that petitioner had accrued a new cause of action on the basis of the compromise arrives between the parties has no force. The petitioner alongwith his co‑plaintiffs Muhammad Yamin etc. ‑filed a suit for declaration the facts of which have been mentioned in the judgment and decree dated 26‑3‑1974 which was between the same parties i.e. the petitioner alongwith his co -plaintiffs and the respondents which had been finally decided up to the level of this Court. Therefore, both the Courts below were justified to non‑suit the petitioner on the well- known principle of res judicata. In arriving to this conclusion I am fortified by the following judgments:‑‑‑ (1) Abdul Majid v. Abdul Ghafoor Khan (PLD 1982 SC 146). (2) Asif Jah Siddiqui v. Government of Sindh (PLD 1983 SC 46). It is pertinent to mention here that earlier suit was decided against the petitioner and his co- plaintiffs under Order 17, rule 3, C.P.C. therefore, principle of res judicata is applicable. In arriving to this conclusion I am fortified by the law laid down by the Honourable Supreme Court in Shahid Hussain v. Lahore Municipal Corporation (PLD 1981 SC 474). It is settled principle of law when a party to litigation seeks improperly to raise again the identical question which has been decided by a competent Court a summary remedy may be found in the inherent jurisdiction which our Courts possess or preventing an abuse of process, as per principle laid down by his Court in Bahadur v. Umar Hayat (PLD 1993 Lah. 390).' Doctrine of res judicata in fact based upon public policy demands an end of litigation. It is also settled principle of law to attract application of the principle of res judicata, the identity of subject‑matter and cause of action is not necessary. It is enough as the matter in issue is the same and both the previous or subsequent suit arise out of the same title as per principle laid down by this Court in Mst. Zeenat Bi v. Zaman Mehdi (PLD 1956 Lah. 760). It is also settled principle of law that it is the identity of title in the two litigations and not the identity of the actual property involved in two cases which matters. It is pertinent to mention here that following ingredients are available in both the suits:‑‑ (i) Parties to the suit. (ii) name of suit. (iii) Property involved in the suit. (iv) Nature of controversy between the parties. Earlier speaking orders were passed by the Courts below, as well by this Court. Therefore second suit is not maintainable even on the ground of fraud. In arriving to this conclusion I am fortified by the following judgments: (1) Barkat v. Haji Ghulam Muhammad (PLD 1970 Quetta 10). (2) Mirza Muhammad Yaqub v. Chief Settlement Commissioner (PLD 1965 SC 254). (3) Muhammad Shafiq v. Atta Muhammad (NLR 1985 Civil 173). (4) Rehmat Khan and others v. Rehmat Khan and another (PLD 1991 SC 275). The judgments cited by the learned counsel of the petitioner are distinguished on facts and law keeping in view the peculiar circumstances and facts of this case. Learned counsel of the petitioner failed to point out any illegality or infirmity in the judgments of the Courts below. However, in the interest of justice it is observed that sale executed between the petitioner and respondent No.1 shall remain in tact to the extent of the share of respondent No. 1 in the property of her late lather. In view of what has been discussed above, iris revision petition has no merits and the same is dismissed. Revision dismissed. Q.M.H./M.A.K./Z‑109/L