1993 PLP 1239 (CLC)

Abdul Majeed Khan for Respondents. Date of hearing: 28th August, 1991. The applicants are aggrieved by the judgment passed by the learned Fourth Additional District Judge, Karachi (South) dated 12‑3‑1989.

2. The facts of the case, briefly stated, are that the predecessors‑in -interest of the applicants were transferred Flat No.19 bearing No.l/2, Property No.I1I‑C‑222‑A, S.R.9/127, known as Kanji Building situated in Serai Quarters, Karachi by the Settlement Commissioner, Karachi, the respondent No.2 in this case under P.T.O. No.04304 dated 29‑6‑1960. Muhammad Jalil Khan, respondent No.3 thereafter obtained P.T.O. No.6936 in respect of tenements No.G/1, 1/1 and 2/1' in the same building on the basis of his possession. Thereafter necessary P.T.D. was also issued in favour of the predecessors‑in interest of the applicants on 18‑3‑1964 and thereafter the transfer of the said property iii their favour became final. However, thereafter through collusion carried out by the respondent No.3, with the concerned officers of the Settlement Department the said P.T.D. without notice to the applicants' predecessors‑in‑interest was cancelled/withdrawn vide Order dated 18‑4‑1966 and tenement No.] /2 was transferred in favour of the respondent No.3. This fact, according to the applicants, became known to their predecessor‑in interest only when ejectment proceedings (R.C. No.155/66) were filed by the said predecessor‑in‑interest of the applicants against their tenants. Thereafter, the said predecessors‑in‑interest of the applicants challenged the said cancellation/withdrawal of the P.T.O./P.T.D. in this Court by filing a Constitutional petition but the petition was dismissed in limine on account of delay and laches and for the reasons that the matter had involved questions of fact which. could not be decided in the exercise of the Constitutional jurisdiction. In the meanwhile, the mother of the applicants Mst. Aisha Khatoon died and the applicants, as her legal representatives alongwith their father Wajid Ali Khan filed a Suit (No.18?4/70) before the learned IVth Senior Civil Judge, Karachi, South. The respondent No.3 filed an application under Order 7, Rule 11, C.P.C. seeking rejection of the plaint on the ground that the suit was barred under section 25 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 which was dismissed on 18‑12‑1977. However, thereafter another application under Order' 7, Rule 11, C.P.C. was filed on the ground that the suit was barred by the principles of res judicata in view of the judgment of the High Court in the said Constitutional Petition. This application was granted and the plaint was rejected by the learned Civil Judge vide his order dated 18‑12‑1977. The applicants filed appeal before the learned Fourth Additional District Judge, Karachi, but the same was also dismissed and the order of the Civil Judge was upheld and hence the present revision.

3. Mr. Rehanul Hassan Farooqui, learned counsel for the applicants has, firstly, contended that since the petition was not dismissed by this Court on merits but on the technical grounds, consequently, the suit before the learned Civil Court was not barred particularly in view of the observations made by the High Court in its judgment that the matter required an enquiry into the facts. The second contention of Mr. Farooqui is that in any case plaint cannot be. dismissed on the basis of any extraneous material not found in the plaint.

4. So far as the first contention of the learned counsel is concerned, it may be pointed out that admittedly the entire matter in controversy between the parties was brought before this Court in the said Constitutional petition. The first contention raised therein on behalf of the applicants' predecessors that the order passed by the Settlement Authorities dated the 18th April, 1966 had been passed without notice to the heirs of Mst. Aisha Khatoon was replied by this Court on merits. No doubt, as pointed out earlier, in respect of the second contention it was observed that the question required an enquiry into the facts, nevertheless when the applicants' predecessors had made their choice. of filing a Constitutional petition before this Court, the matter attained finality subject to any review or appeal which might have been filed against the said judgment. A similar question arose before the Supreme Court in the case of Abdul Majid v. Abdul Ghafoor Khan PLD 1982 SC 146 and it was held in that case as follows:‑ "There is no force in any of the arguments raised by the learned counsel. He admits that the petitioners filed the suit after the final decision by the High Court; to remove its effect, so as to get their claim sanctioned from the Rehabilitation Authorities. It is, therefore, not correct to say that the High Court decision would bar the fresh enquiry before the Rehabilitation Authorities only. Whatever the forum whether of special or general jurisdiction it will operate as a bar on the re‑opening of the case, except of course to the extent the law permits by way of review/appeal. As was held by this Court in the case of Muhammad Chiragh‑ud‑Din relied upon by the learned Courts below, even if the provisions of section 11, C.P.C. do not apply in terms, in such like cases, the general principles of res judicata would apply. Therefore, there is no force in the second argument of the learned counsel either. In this connection learned counsel also tried to argue that the principle of constructive resjudicata would not apply in cases where section 11, C.P.C. does not apply, in terms. There is no reason to exclude a particular kind of res judicata when considering these questions, neither on the basis of any law nor any other general principle:' It was further observed:‑ "The next argument of the learned counsel that the High Court was not competent to deal with the questions which have been raised in the civil suit, thus its decision thereon would not operate as res judicata also, ignores the reality that the main controversy was . competently brought before the High Court in its writ jurisdiction. After its decision thereon it was open to the parties to challenge the same in accordance with law governing the question of finality of the High Court decisions namely through review and appeal." I am, consequently, of the view that both the learned Courts below have rightly come to the conclusion that the matter, was barred by res judicata.

5. Turning to the second contention of Mr. Rehanul Hassan Farooqui, the learned counsel in support of his contention has placed reliance upon PLD 1954 Sindh .70, 1982 CLC 269, PLD 1971 Kar. 250, 1980 CLC 433 and PLD 1978 Kar. 267, in support of his contention that the Court for the purpose of Order 8 Rule 11, C.P.C. can only look into the averments made in the plaint. However, in Mian Muhammad Akram v. Muhammad Rafi 1989 CLC 15 it has been held by a learned Judge of the Lahore High Court that for the purpose of Order 7, Rule 11, C.P.C. apart from the contents of the plaint, material produced in defence can also be considered by the Court while rejecting a plaint. According to the observations made by the learned Judge, the old concept that the Court has to confine itself only to the contents of the plaint has lately undergone a change. Reference in this respect was made by the learned Judge to the case of Muhammad Akhtar v. Abdul Hadi 1981 SCMR 878 wherein it was held that Order 7 Rule 11, C.P.C. was not exhaustive of all situations in which a plaint can be rejected or a suit can be dismissed summarily. 1 am of the view that in any case, the objection raised by Mr. Farooqui is highly technical. The learned counsel himself concedes that a preliminary issue can be framed by the Court to decide the question, whether the suit is barred by res 'judicata and in case the issue is determined in affirmative the entire suit can be dismissed on such preliminary issue. Since it has already been held that the learned Courts below were right in concluding that the matter was barred by res judicata, the same in any case would call for dismissal ‑of the suit on such ground. Consequently, I find no force in the second contention as well.

6. In the result, this Revision Application is dismissed but with no order as to costs. H.B.T./M‑1502/K Revision dismissed.