2010 PLP 830 (CLC)

MUHAMMAD KHALID MEHMOOD KHAN, J.

Through this Constitutional petition, the petitioners have assailed judgment dated 24-10-2002 passed by the learned Additional District Judge, Pattoki, District Kasur whereby order dated 23-5-2001 passed by the learned Civil Judge was set aside and the plaint was ordered to be rejected.

2. Briefly the facts relevant for the disposal of this petition are that the petitioners filed a suit for declaration to the effect that the petitioners/plaintiffs are owners of land, subject-matter of the suit, to the extent of 3/4 share being the legal heirs/descendants of one Jilal, Mst. Rano Bibi was the limited owner of the property and gift deed executed by Mst. Rano Bibi in favour of defendants Nos.1 and 2 are without lawful authority and the same was ordered to be cancelled. The defendants appeared in the suit and filed application under Order VII, rule 11 Code of Civil Procedure, 1908 praying that the earlier suit No.56/1 of 1972 filed by the same plaintiffs was dismissed and the present suit has been filed after the lapse of 28 years. Hence doctrine of res judicata is applicable and, as such, the suit is barred by law and the plaint is liable to be rejected. It is also alleged in the said application that plaintiffs have concealed the fact of dismissal of earlier suit. The plaintiffs/petitioners submitted reply to the application and controverted the facts mentioned in the plaint, however, they admitted that the plaintiffs/petitioners had filed earlier suit and the fact of dismissal of that suit is mentioned in para 4 of their plaint. The plaintiffs further averred that the suit has been filed under the observations made by the Honourable Lahore High Court, Lahore vide judgment dated 25-1-2000 passed in W.P.No.11300 of 1980 and, as such, the suit is not hit by doctrine of res judicata.

3. Learned Civil Court after hearing the parties, dismissed the application under Order VII rule 11, C.P.C. on 23-5-2001. The respondents assailed the said order through a revision petition before the learned Additional District Judge, Pattoki who vide order dated 24-1-2002 accepted the revision petition and set aside order dated 23-5-2001 and the plaint was ordered to be rejected.

4. The facts available on the record show that the petitioners/ plaintiffs filed a Suit No.56/1 of 19'72 which was dismissed under Order XVII, rule 3 Code of Civil Procedure, 1908 vide order dated 3-1-1976. The dismissal order is reproduced as under:--

5. The learned Civil Judge held that the earlier suit was not dismissed on merits and, as such, doctrine of res judicata is not applicable. The learned appellate Court, however, differed with the finding of the learned trial. Court and held that the earlier dismissal of suit was operated as res judicata.

6. Learned counsel for the petitioners submits that the earlier suit was dismissed on technical ground that is non-submission of amended plaint and, as such, no real controversy between the parties was decided by the learned trial Court. Res judicata applies where the matter has been disposed of on merits finally but in the present case the earlier suit was dismissed on technical ground. He further submits that cause of action has not been settled finally between the parties through proper pronouncement and, as such, the suit is not barred by law. Further states that no decree sheet has been prepared which is sufficient to prove that the case was not decided on merits and the learned trial Court has wrongly applied the rule of res judicata.

7. On the other hand, learned counsel for the respondents/ defendants states that the dismissal of earlier suit operates as res judicata. The petitioners have failed to mention the fact of dismissal of said suit land, as such, they have concealed the true facts between the parties. Further submits that order dated 3-1-1976 was not assailed by the petitioners and, as such, it attains finality. Learned counsel finally submits that no jurisdiction can be conferred upon the Court with the consent of the parties, if the Court has no jurisdiction under the law. Even if it assumed that suit could be filed as observed by the High Court in W.P.No.11300 of 1980, even then civil Court has no jurisdiction to entertain the suit.

8. I have gone through the record with the assistance of both the learned counsel for the parties and observed that the earlier suit was filed by the present petitioners against the respondents on the same cause of action.

9. Interim order dated 22-1-1974 shows that the plaintiffs in that suit filed an application for impleading the legal heirs of one of the plaintiffs. The matter was going on, when another plaintiff (plaintiff No.2) died and an application was filed for impleading his legal heirs as party to the suit. The matter remained pending for submission of death certificate of one of the deceased plaintiff, up to 18-11-1975 when the case was adjourned to 3-3-1975. On the said date i.e. 3-3-1975, learned trial Court passed an order directing the plaintiff to file reply to the application submitted by defendant for vacation of restraining order already passed by the Court. The learned civil Court further ordered that legal heirs of plaintiff No.2 have not been impleaded as party to the suit so far and, as such, amended plaint be filed after impleading the legal heirs of plaintiff No.2 as party and adjourned the case to 5-3-1975. The matter remained pending on one pretext or the other. On 9-9-1975 the learned trial Court adjourned the case for 16-10-1975 subject to payment of costs of Rs.30 and directed the defendants to file written statement. It was also directed that the plaintiff will provide copy of amended plaint to the learned counsel for the defendants within three days. On 16-10-1975 learned counsel for the defendants informed the Court that complete amended plaint has not been provided nor the costs have been paid. The Court again directed the plaintiff, that copy of the amended plaint be provided to the defendants within three days and costs will also be paid on the next date of hearing and adjourned the case to 19-11-1975. On 19-11-1975 learned counsel for the parties were present but the written statement was not filed and last opportunity was allowed to the defendants subject to payment of Rs.15 and adjourned the case to 11-12-1975. On the said date i.e. 11-12-1975 learned counsel for the parties were present and the amended plaint was not filed and it was observed that earlier costs was not paid and last opportunity was given subject to payment of Rs. 15 further costs. On 3-1-1976 amended plaint was not filed and learned Civil Court dismissed the suit under Order XVII, rule 3 Code of Civil Procedure. After dismissal of suit, the matter remained pending with the Revenue Authorities and went up to the level of High Court. It is observed from the record that on 3-1-1976 the case was fixed for filing the amended plaint, after impleading the legal heirs/legal representatives of plaintiff No.2, and as such, if the amended plaint was not filed, maximum the Court can dismiss the suit to the extent of legal heirs of plaintiff No.2 and not the entire suit. It is an admitted fact that written statement was not filed. No issue was framed and no adjudication on merits was even commenced.

10. Provisions of section 11 Code of Civil Procedure, 1908 are read as under: "Section 11.-Res Judicata.--No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. Explanation I.--The expression "former suit" shall denote a suit which has been decided prior to the suit in 'question whether or not it was instituted prior thereto. Explanation II.--For the purposes of this section, the competence of a Court shall be determined irrespective of any provisions as to right of appeal from the decision of such Court. Explanation III--The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other. Explanation IV.--The matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. Explanation V.--Any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purposes of this section, be deemed to have been refused. Explanation VI.--Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating."

11. The bare language of the provision shows that the term of res judicata operates only if the matter in dispute is adjudicated upon finally on merits and not on non-technical or preliminary ground.

12. Provisions of Order XVII rule 3 Code of Civil Procedure are permissive and discretionary but not mandatory. The provisions being essential in nature must be strictly construed and action should be taken only if the party is negligent wilfully. The condition mentioned in Order XVII, rule 3 C.P.C. must be fulfilled before the action is initiated.

13. The term `decide' forthwith referred in this order can only be pressed into service when there is no material available on record for the disposal of the suit. The entire suit cannot be dismissed on the basis of default on the part of one of the plaintiffs. The doctrine of res judicata is applicable only where the matter in issue was in the earlier suit and the subsequent suit is directly and substantially in issue and previous suit has been decided on merits by resolving the complete controversy between the parties. In the present case, the earlier suit was dismissed on technical ground that too wrongly. Interim orders passed by the learned trial Court show that there are four plaintiffs in the plaint and plaintiff No.2 died during the pendency of the suit and his legal heirs were not brought on record even the Court burdened the plaintiffs with costs. If it is presumed that the plaintiffs were negligent, the learned trial Court can maximum dismiss the suit by invoking the provisions of Order XVII, rule 3, C.P.C. only against the legal heirs of plaintiff No.2.

14. Learned appellate Court has not gone through the contents of interim orders and opted to accept the application under Order VII, rule 11, C.P.C. without resorting to the record available with the learned trial Court. The impugned order even otherwise, is without any reason.

15. Learned counsel for the respondents places reliance on Mrs. Irene Wahab v. Lahore Diocesan Trust Association 2002 SCMR 300, Hashmatullah v. Muhammad Shafi Butt and 3 others 1999 CLC 916, Government of N.-W.F.P. through Secretary C&W and others v. Messrs Tahir Shoaib-Rashid Shoaib 1998 CLC 1680 and Pervaiz and 2 others v. The State and others 1998 SCMR 1976, but in all these cases, the facts were different. All these cases were fixed for evidence of the plaintiff and after allowing number of opportunities, the parties failed to produce the evidence and, as such, the said provisions were invoked against those parties. In the present case, the facts and circumstances are different. The case on 3-1-1976 was fixed for filing of amended plaint by impleading the legal heirs of plaintiff No.2 as party to the suit and, as such, basic order dated 3-1-1976 was illegal. The suit was at initial stage, the parties have not submitted written statement and no issues were framed, so it cannot be termed that the suit was dismissed on merits and dismissal order under Order XVII rule, 3 C.P.C. in the present case does not operate as res judicata.

16. In view of the above, in my opinion, the impugned order was passed against the facts and is liable to be set aside. Therefore, I hereby set aside the impugned order and declared the same as without lawful authority. Resultantly, this petition is accepted and the matter is sent back to the learned trial Court who will allow reasonable time to the plaintiffs for filing the amended plaint and will decide the suit after framing issues. However, the respondents will be at liberty to raise any legal or factual objection to the said suit including the objection of res judicata. A.R.K./M-119/L Petition accepted.