1983 PLP 1022 (CLC)

F. M. Piracha for Respondent. Date of hearing : 23rd January, 1983. JUDGMENT . This is a second appeal against the orders dated 31st August, 1978, and dated 8th November, 1979 passed by the learned II Rent Controller, Karachi and learned IV Additional District Judge, Karachi, respectively in Rent Case No. 201.5/73 and Rent Appeal No. 540/79. The relevant facts leading to the filing of the above second appeal are that the respondent filed above rent case on the ground of default in pay ment of rent for the period commencing-from 19th October, 1971 to 19th August, 1973 at Rs. 225 per month. The above application was resisted by the present appellant and in his objections to the rent application inter alia it was pleaded that he was not the tenant of the premises but was the owner by virtue of a sale agreement. The Rent Controller framed a preliminary issue and decided the same against the appellant by his order dated 9th January, 1978. It seems that against the above order the appellant filed an appeal, which was dismissed. After that the Rent Controller passed a tentative rent order on 1st February, 1978, in which the appellant was directed to deposit Rs. 16,762.50 being the arrears of rent before 15th March, 1978 and also to deposit future monthly rent at Rs. 225 per month commencing from January, 1978 before 15th of each succeeding month. It seems that the appellant committed default of the above tentative rent order and, therefore, the respondent filed .an application under section 13 (6) of the late W. P. U. R. R. Ordinance, 1959, for seeking striking off the appellant's defence, which application was allowed by the learned Rent Controller by his aforesaid order dated 31st August, 1978. Against the above order the appellant filed Rent Appeal No. 540/1979, which was dismissed by the learned IV Additional District Judge by his aforesaid order dated 8th November, 1979. The appellant being aggrieved by the above order has filed the present appeal.

2. In support of the above appeal, Mr. Inayat Ali, learned counsel for the appellant has urged that since to suit No. 354/1976, which was a suit filed, by the appellant for specific performance of the alleged sale agreement dated 24th February, 1973 in respect of the tenement in question, the learned Civil Judge recorded a finding in favour of the appellant on the question of sale though the, above suit was dismissed, this Court should set aside the above two orders as the finding, of the learned Civil Judge in the aforesaid suit is binding on the respondent as well as on this Court. On the other hand, it. has been urged by Mr. F. M. Piracha, learned counsel for the respondent that as the appellant's aforesaid suit was dismissed and as there was no decree containing the finding on the question of sale against-the respondent the above finding does not constitute a res judicata for the purpose of the present proceedings.

3. Mr. Inayat Ali has referred to the case of Union of India, Ministry of Food and Agriculture (Department of Food) New Delhi v. Pearl Hosiery Mills (A I R 1961 Pb. 281), and the case of Kamiluddin Ansari v. Director Excise and Taxation, Karachi (P L D1971 S C 114). On the other hand Mr. Piracha has referred to the case of Mst. Khadija Khatoon v. The Additional District Judge, Rawalpindi, and 2 others (P L D 1973 Lah. 463) the case of Ghulam Ahmed and another v. Ata Muhammad and two others (P L D 1974 Lah. 248) the case of Sanaullah and others v. Ghulam Qadir and others (P L D 1958 Kar. 213), the case of the Commr. for the Port of Calcutta v. Bhrairadinram Durgoprosad (A I R 1961 Cal. 39) and the case of Ali Ahmed v. Amarnath (A I R 1951 Pb. 444).

4. In the above Punjab case reported in A I R 1961 Pun. 281 a Division Bench of the Punjab High Court held that section

96. C. P. C. does not prescribe that it is only that person against whom a decree has been passed or against whom a relief has been granted, can file an appeal under the aforesaid section but any person who can show that he is aggrieved by the decree can file an appeal against the same. In the above case a con tractor, who agreed to supply certain quantity of sugar to the Union of India filed a suit for declaration to the effect that the bank guarantee given by him stood discharged. The above suit was in fact decreed and declaration was granted. Against the above judgment, the appeal was filed by the Union of India, which was also dismissed by the High Court. In the background of the above facts, the above observations were made by the Division Bench. In my view the above case has no application to the present case as in the instant case the suit was dismissed and no decree containing any finding con trary to respondent was drawn. Whereas in the second case relied upon by Mr. Inayat Ali reported in P L D 1971 S C 114 the question before the Supreme Court of Pakistan was, where the allottees of the land in P. E. C. H. S., who had raised cons truction of buildings in terms of the allotments were liable to pay property tax as it was urged by the allottees that they were not liable to pay any pro perty tax as the land was Government land, on which the structures were raised and they had no lease in their favour of the land. The High Court dismissed the writ petition. The appeal against the above judgment of the High Court was dismissed by the Supreme Court of Pakistan through the aforesaid judgment reported in P L D 1971. While dismissing the above appeal, the following observations were made -- In short, but for the technical objection no registered lease has been executed the lands are leased out in perpetuity, and it would indeed be very difficult for the Government to oust them. In any proceed ing for ejectment section 53-A of the Transfer of Property Act would afford a valid defence against the ejectment. The agreements clearly show that the Government has intended to divest itself and to vest the lands in the sub-licensees, but the latter have apparently mala fide omitted to execute the lease as they were required to do under the terms of the agreement. In these circumstances to accept the appellants' contention is not only to act directly against the in tention of the Legislature as contained in the section 4 of Act V of 1958 but also to help the appellants in their wrongful efforts to evade the payment of tax under the said Act." The above case has also no application. The question in issue before me is, as to whether the finding of the learned Civil Judge in favour of the appellant on the question of sale agreement in a suit, which was dismissed can constitute res judicata in these proceedings.

5. Now, I intend to take up the case cited by Mr. Piracha. In the first case reported in P L D 1973 Lah. 463, Sardar Muhammad Iqbal, J. (as be then was) held that "it is in now well established that adverse finding against the successful party is not a res judicata in a subsequent suit bet ween the parties. If a decree is one dismissal in favour of the defendant". In the second case reported in P L D 1976 Lah. 248, a learned single Judge of the Lahore High Court held that adverse finding in an appellate judg ment does not constitute res judicata if the appeal was dismissed. In the third case relied upon by the learned counsel for the respondent a Division Bench of the erstwhile High Court of West Pakistan, Peshawar Bench inter alia held that a finding of a Court not incorporated in a decree drawn does not constitute res judicata. In the fourth case a Full Bench of the Calcutta High Court held that the appeal was not maintainable because the decree of the lower appellate Court was entirely in favour of the appellant, and, therefore, the appellant could not have any right of appeal against the finding when that finding does not affect the decree which is wholly in its favour. In the last case relied upon .by the learned counsel for the respondent a learned Single Judge of the Punjab High Court held that where a decree is absolutely in favour of a party but some issues were found against him, had no right of appeal against the findings because firstly he was no adversely affected by such findings and, secondly, such findings were not embodied in and did not form part of the decree.

6. In this regard it may also be pertinent to refer to section 96, C.P.C., which reads as follows :- "Section

96. Appeal from original decree.-(1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorised to hear appeals from the decisions of such Court. (2) An appeal may lie from an original decree passed ex parte. (3) No appeal shall lie from a decree passed by the Court with con sent of parties". It may be noticed that under the abovequoted section 96 an appeal is competent against a decree and not against a judgment. If a: decree passed/drawn is in favour of a defendant containing dismissal of a suit, he D has no right to file an appeal under section 96, C. P. C. unless he can show that the decree drawn in terms of the judgment contains an adverse finding detrimental to his interest. The cases relied upon by Mr. Paracha Advocate E on all fours are applicable to the instant case. Since in the present case the decree was in terms of the dismissal of the suit, the respondent could no E have filed an appeal against such a decree. In this view of the matter, the finding recorded by the learned Civil Judge in the aforesaid suit on the question of sale against the respondent does not constitute a res judicata.

7. It may also be observed that the above judgment in the aforesaid suit was given by the learned Civil Judge on 8th January, 1980 subsequent to the disposal of the rent application and the first rent appeal. I am inclined to take the view that this Court sitting in second appeal is competent to take into account subsequent events, which may affect the result of the appeal. If the finding is recorded by the learned Civil Judge in the aforesaid suit dismissed in favour of the respondent would have constituted a res judicata against him, I would have decided the above appeal after taking into con sideration the aforesaid fact. As regard the merits of the appeal Mr. Inayat Ali was unable to point anything, which may adversely reflect on the two orders under appeal. Admittedly the appellant had not complied with the above tentative rent order. For the aforesaid reasons, I dismiss the above appeal, but I grant four months time to the appellant to hand over the vacant possession of the premises on the condition that the appellant shall continue to deposit rent in terms of the High Court order till the expiry of the above period, failing which the respondent shall be at liberty to file an execution application be fore the expiry of the above period of four months. Furthermore, in case the appellant fails to hand over the vacant possession after the expiry of the above period of four months, the Rent Controller shall issue a writ of ejectment without further notice to the appellant. M. Y. M. Appeal dismissed.