1990 PLP 1241 (CLC)

Date of hearing: 30th October, 1989. On 18‑4‑1979, Allah Ditta and Raja, the predecessor‑in‑interest of Bashir Ahmad and 13 others, petitioners, filed suit for declaration to the effect that they were owners in possession of land measuring 16 Kanals situated in Bhosal, Tehsil Phalia, District Gujrat and the entries in the Revenue Record in pursuance to the orders passed by Consolidation Authorities, showing the respondents, as owners in possession of the suit land, are illegal, void and ineffective against their rights. As a consequential relief, it was prayed that the respondents be restrained from interfering with their possession. The suit was resisted whereon following issues were framed:‑‑ (1) Whether the plaintiffs are owners in possession of the suit land and the entries in the Revenue Record in respect of the ownership of the defendants are unjustified, against facts and incorrect? OPP. (2) Whether the suit of the plaintiffs is barred under Order 9, rule 8 of C.P.C.? OPD. (3) Whether the suit of the plaintiffs is barred by res judicata? OPD. (4) Whether this Court lacks jurisdiction to try the suit? OPD. (5) Whether the suit of the plaintiffs is bad for non‑joinder of necessary parties? OPD. (6) Whether the defendants are entitled for special costs under section 35‑A of C.P.C.? OPD. (7) Relief.

2. The parties led their evidence. The plaintiffs produced Baqri P.W.1 and Muhammad Nawaz P.W.2 Bashir Ahmad petitioner appeared as P.W.3. He tendered in evidence Khasra Girdawari Ex. P.1, Jamabandis Exs. P.2 and 3 and copy of application made under section 12(2) C.P.C. Ex.P.4. In rebuttal, one of the respondents, namely, Khan Muhammad appeared as D.W.1. He tendered in evidence copy of judgment EX.D1 and copy of plaint Ex.D.2. Finding issues Nos.3 and 6 in favour of the plaintiffs/petitioners and the remaining issues against them, the trial Court dismissed the suit on 15‑11‑1987. The appeal filed by the petitioners against this judgment and decree was dismissed by the learned Additional District Judge, Gujrat on 2‑4‑1989, on the ground of lack of jurisdiction of the Civil Court to try the suit. He did not discuss issues other than issue No.4.

3. Learned counsel for the petitioners relied on Fawwad and Fareen Enterprises v. Director of Industries, Government of Sindh P L D 1983 SC 230; Muhammad Jamil Asghar v. The Improvement Trust, Rawalpindi P L D 1965 SC 698 and Grindlay's Bank Limited v. Murree Brewery Company Limited PLD 1954 Lahore 745 to contend that since fraud was alleged against the defendants, therefore, the Civil Court was very much competent to try the suit. Furthermore, the Consolidation Authorities could not go into the question of adverse possession of the respondents. The learned counsel for the respondents has supported the judgments and decrees of the Courts below.

4. I have carefully considered the submissions made by the learned counsel in the light of the material which has been placed on the file of this revision. I have not been able to persuade myself to exercise discretionary powers under section 115, C.P.C. in aid of the petitioners. I find that before the filing of the present suit, the petitioners had filed similar, suit for declaration arising from the same cause of action which was dismissed in default under Order 9 rule 8 on 11 3‑1979. Ex. D.1 is the copy of the order and Ex.D.2 is copy of the plaint in the previous suit. The previous suit was in respect of the subject‑matter of the present suit. The cause of action in both the suits is the same. The order of dismissal of the earlier suit still holds field. So the plaintiffs/petitioners shall be preciuded from bringing the present suit in respect of the same cause of action. Learned counsel for the petitioners has frankly and rightly conceded that the present suit is not maintainable under Order 9, rule 9, C.P.C. Furthermore, the learned Courts below have considered the question of the jurisdiction of the Civil Court to entertain and try the suit of the petitioners challenging the legality of the orders by the Consolidation Authorities, in accordance with law. The plaint does not disclose the particulars of the fraud. I do not see any illegality in the judgments of the Courts below. The cases cited by the learned counsel for the petitioners do not apply to the facts of this case. Be that as it may, the fact remains that the petitioners could not have filed the present suit after the dismissal of their identical suit under Rule 8 Order 9, C.P.C. The judgments of the Courts below do not suffer from illegality or material irregularity.

5. Pursuant to the above discussion, the revision application fails and dismissed, leaving the parties to bear their own costs. A.A./B‑189/L Revision dismissed.