Res Judicata

Where a dispute between the parties has been decided without proper adjudication and evidence, the essential conditions required to establish the plea of res judicata do not exist.

Revision was filed by the defendants against the judgment and decree of the first Appellate (District) Court that reversed an order of rejection of a plaint rendered by the Trial Court

Appellate/District Court held that a compromise was entered between the parties and its mere non-mentioning by the High Court in its order was of no legal effect

Contention of the petitioners being that they were not parties to the compromise

Validity

Record revealed that previously the respondents (three in number) were plaintiffs in the former suit who in their application before this(High) Court sought withdrawal on the basis of compromise, however, this Court, in its order didn't mention the factum of compromise and allowed simple withdrawal of the suit

Admittedly, the former suit was also of representative nature having been filed by the respondents being representatives of their tribe as it pertained to a dispute over the royalty of the forest amongst their tribe with the tribes to which the petitioners/defendants belonged

Pertinently, the tribes were represented by special attorneys and as many as 08 persons as defendants signed the compromise who were impleaded in the present suit

Moreover, as many as 12 persons signed or thumb impressed the compromise deed as jirga members; two amongst them were shown as belonging to two tribes

Thus, firstly, the former suit was representative, as such, not all members of the tribes were supposed to be present before the Court; secondly, the dispute was over the tribe's entitlement of royalty of the forest, pertaining to a common interest of the village's propriety body; thirdly, there was compromise which also reflected that a jirga was convened for its purpose

Hence, the petitioners' contention (that they were not parties to the compromise ) was not tenable as far the existence of the cause of action was concerned

No illegality or infirmity had been noticed in the impugned judgment allowing filing of plaint to the respondents

Revision, filed by the defendants was dismissed, in circumstances.

The concept of res judicata debars filing of successive suits on the same subject matter between the same parties to avoid conflicting decisions

The principle of res judicata as codified in S. 11 of C.P.C. though applies to the suits and would not be applied to the interlocutory applications but the general legal principles of the res judicata would certainly apply to the decisions on interlocutory applications filed during the proceedings

If an interlocutory application is decided on merits at one stage of the proceedings, the same would operate as a bar and would preclude the party from filing the application by raising the same plea at a subsequent stage of the proceedings, however, such order would not operate as a bar if not passed on merits of the case and only express an opinion.

Order VII, R. 11, C.P.C. refer only words the "rejection of plaint in suit" which ought to be applied by Trial Court having power and jurisdiction to adjudicate the lis and whenever any of the basic ingredients mentioned at (a) to (d) in O. VII, R. 11, C.P.C. are available on examination of plaint including documents attached thereto

In contrast, the "dismissal of suit" connotes that it is a final determination of controversy between the parties

The power and jurisdiction to dismiss the suit can only apply by Trial Court when the parties have adduced evidence, produced documents on oath and undergone with the test of cross-examination by opposite party and finally fails to clear the test of "prove"

Another key difference between the "rejection of plaint in suit" and "dismissal of suit" is that the former keep opens the door for the plaintiff to re-try or re-file or re-institute a fresh suit or, in other words, the plaintiff cannot be precluded to file afresh suit on same cause of action or joinder of new cause of actions, against same parties or include other parties or on same subject-matter or with addition or subtraction of subject-matter where it is possible for him according to situation

In contrast, the later strictly prohibit the plaintiff to institute fresh suit

The plaintiff cannot file fresh suit (case) against the same parties (including legitimate successor in interest or successor in office) or in respect of same subject- matter

The legal position is further tighten on the point of cause of action

In former case, the cause of action may be kept same for the plaintiff or he may join more cause of action to re-agitate or institute suit whilst the later omit the point of cause of action and paved out another way to tackle the cases on examination of earlier subject matter decided either directly or indirectly in previous suit (case) and it can only be invoked when the evidence is recorded, the documents have produced on oath and such document could be read as admissible evidence by Trial Court or otherwise while delivering the judgment

However, in both situations law provides statutory remedies against either order of rejection of plaint in suit or dismissal of suit by way of judgment

The former does not preclude to re-institute a suit while the latter is rule of conclusiveness which restrict plaintiff to re-agitate or institute fresh suit and is called as doctrine of res judicata emerged under S. 11 of C.P.C.

The respondents filed an application under O. VII, R. 11, C.P.C., arguing that the suit was barred by res judicata, since earlier suits had already been rejected, and therefore a fresh suit on the same cause of action was not maintainable

The Trial Court dismissed the application, but the appellate court reversed that order and held the suit barred under S. 11, C.P.C.

The main challenge before the High Court was to "contest the appellate court's finding of res judicata and the maintainability of the petitioner's suit"

Held: Admittedly the previous two suits were not dismissed after settlement of issues and recording of evidence, on the contrary, the plaint of those suits were rejected

Rejection of plaint could not bar the petitioner/plaintiff to re-institute a suit

Rejection of the plaint under O. VII, R. 11, C.P.C. did not preclude the petitioner/plaintiff from re-institution of a fresh suit which was permissible under O. VII, R. 13, C.P.C. provided the earlier suit was neither expressly nor impliedly barred by any law

The impugned order was set aside with modification that suit filed against the respondent No.1 (government) was rejected being barred under the proviso of S. 9 of the Specific Relief Act, 1877 while the said suit was maintainable against the respondent No.2

Accordingly, the trial Court is directed to proceed with the said suit after notice to parties and decide the same in accordance with law

Constitutional petition was allowed, in circumstances.

The doctrine of res judicata is based on the following three maxims: i. 'Nemo debet bis vaxari pro una et eademcansa' which means none should be vexed twice for the same cause.' ii. 'Interest reipublicaeut sit finis litium' which means that it is in the interest of the state that there should be an end to litigation. iii. 'Res judicata pro veritateaccipitur' which means that a judicial decision must be accepted as correct

The word "res" means "thing" and "judicata" means "already decided"

Initially, the concept of "Res judicata pro veritateaccipitur" which means, a decision of a judicial authority must be duly accepted as correct, was the full maxim which has, over the years, diminished to not more than "res judicata".

Briefly, the respondent was a Ph.D. scholar of the petitioner University who had submitted her thesis but her admission was cancelled; her departmental appeal, two writ petitions, and civil petition for leave to appeal before the Supreme Court were all dismissed, while her separate civil suit for declaration and injunction was initially dismissed by the Trial Court but later decreed by the Appellate Court directing restoration of her admission and consideration of her thesis

The issue in the present civil revision was "whether the Appellate Court could lawfully grant such relief despite the earlier adjudications by the High Court and the Supreme Court?"

Held: A comparative analysis of pleadings, affidavits, and documents from both the writ petitions and the civil suit revealed that the issues were directly and substantially the same

While procedural irregularities and unfairness were apparent on record, particularly from DW-01's cross-examination, the fact remained that the respondent's case had already been adjudicated conclusively by competent constitutional forums

High Court, sitting in revisional jurisdiction, could not override the authoritative pronouncements of the Constitutional Court and the Supreme Court

Judgment and decree passed by the first Appellate Court was set aside

Present civil revision was allowed, in circumstances.

Brief facts were that the petitioner filed a Constitutional petition seeking declarations that the CSS Competitive Examination Rules, 2019 were ultra vires the Constitution and R.7 in particular was unconstitutional, and that the Chairman of the Federal Public Service Commission (FPSC) lacked authority to unilaterally frame such rules, which should instead be made by the FPSC as a whole with approval of the federal government

The legal issue before the Court was "whether the CSS Competitive Examination Rules, 2019, and in particular R.7, were unconstitutional on the ground that they were framed by the Chairman alone rather than by the full Commission acting under its statutory authority"?

Held: Pursuant to Art.242, the FPSC Ordinance, 1977, was promulgated, S.3 of which defined the composition of the commission, while S.7 enumerated its functions

These provisions, inter alia, authorized the commission to conduct examinations, advise the President on recruitment policies, and hold promotional examinations as to be specified by the federal government and in light of the said provisions, CSS Competitive Examination Rules, 2019 were framed

The report furnished by the commission further revealed that the vires and validity of the CSS Competitive Examination Rules, 2019 had already been subjected to judicial scrutiny before the Supreme Court, as well as before the High Courts and on each occasion, the Rules were upheld as having been lawfully framed and duly approved by the federal government

In the presence of such authoritative pronouncements, the matter could not be re-agitated merely by altering the form of the relief sought

Grievance raised by the petitioner was misconceived and devoid of substance

The challenge to the CSS Competitive Examination Rules, 2019 did not with stand Constitutional or legal scrutiny, particularly when the Supreme Court had already affirmed their validity

Constitutional petition was barred by the principle of res judicata and failed on merit as well and was dismissed.

A judgment not challenged before a higher forum would attain finality and as such the determination made would operate as final between the parties on the well-known principle of res judicata.

Petitioner seeking to reopen issue of respondent's paternity and entitlement to inherit legacy of her father despite earlier adjudication regarding paternity up to the Supreme Court

Legality

Constructive res judicata

Scope

Grounds available but not taken in former suit deemed to have been directly and substantially in issue

Judgment in rem and in personam

A judgment on paternity, being both in personam and in rem, operates as res judicata on status and title, binding even those claiming under a party to the earlier suit

In the present case the petitioner sought to challenge inheritance mutation and deprive the respondent of her share

Primary issue in the present case was as to "whether the petitioner could re-litigate/agitate the question of the respondent's parentage and her entitlement to inherit from her father, despite that matter already having been conclusively decided in earlier proceedings up to the Supreme Court"?

Held: The submission of the cognovit by the respondent No. 2 raised serious question of maintainability vis-a-vis the application of res judicata

Undeniably, he was the main defendant in the former suit

It was he who disputed the parentage of the respondent No. 1, and to reiterate, he unsuccessfully contested the same issue till the Supreme Court

The materiality of this admission lay in the fact that he was the real maternal uncle of the petitioner

In this perspective, perhaps there was no need to say who was standing behind the petitioner in the background

Indeed, the cognovit stood as more than a mere admission

It constituted a tacit alignment with the petitioner's position, thereby effectively placing the respondent No. 2 in the shoes of the petitioner

By supporting the petitioner's plea, he then, by implication, challenged, in fact, re-agitated the parentage of the respondent No. 1, which, as an issue directly and substantially involved in the former suit, had been determined by all the Courts concurrently

Principles of applicability of constructive res judicata were squarely attracted to the present case

It was fully established on all canons of evidence in the former suit that the respondent No. 1 was the daughter of late "AH"

Even Mst. "HJ", mother of petitioner, who, too, was alive at that time, did not raise any such objection

It was to be noted that the paternity was never challenged in the lifetime of "AH"

Another key aspect of the case was the legal character of the earlier judgment concerning the paternity of the respondent No. 1, which partook both of a judgment in personam and in rem

While a judgment in personam bound the parties to the suit, a judgment in rem conclusively determined the legal status of a person or thing and was binding erga omnes, provided it was rendered by a court of competent jurisdiction

The adjudication in the former suit, upheld by the highest judicial fora, directly and conclusively determined the respondent No. 1's parentage as the biological daughter of "AH" and Mst. "MJ", an issue that was central to the dispute and decided after full contest

Although the petitioner was not a party to that litigation, he claimed under "AH" the same title as the respondent No. 2 did in the earlier suit-and was therefore bound by the earlier determination

Consequently, the former judgment operated as res judicata, both as to status and title, precluding the present challenge

High Court emphasized that the present case had serious implications for women's right to inheritance

It had been fully established from the record that in the former suit, the respondent No. 2 tried to deprive the respondent No. 1 in the inheritance of her father by fraudulently obtaining from her a sale deed which she challenged before the court and obtained a decree in her favour

The respondent No. 2 contested the suit till the Supreme Court, dragging her in litigation till the final Court

Now, in the present suit, he again approached the High Court being hands in glove with the petitioner, to re-agitate the issue which was deemed to have been taken on the doctrine of constructive res judicata

Present case was a typical example of creating a pretext to deprive a woman of her property rights in the inheritance of her parents

Higher Courts, particularly, the Supreme Court consistently condemned the practice of depriving female legal heirs of their rightful shares in inheritance, as ordained by Shari'ah

Petitioner's suit was barred by the principle of constructive res judicata

The concurrent findings of the Courts below dismissing the petitioner's claim were affirmed

Present suit constituted an impermissible attempt to reopen issues conclusively determined till the Supreme Court

The judgments and orders of the Courts below, being well-reasoned, did not warrant interference in revisional jurisdiction

Consequently, present petition, being devoid of merit, was dismissed in limini.

The concept of res judicata has evolved from English common law and since then it has been defined and interpreted through various judicial pronouncements

The concept of res judicata is explained under S. 11 of the Code of Civil Procedure 1908

As per S. 11 of C.P.C. 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 the 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.

Prior to the suit of petitioner, the respondents instituted a civil suit against the petitioner for declaration, possession and perpetual injunction in respect of land bearing survey No.155 measuring 16 acres

Suit was contested by the petitioner and others

Said suit was decided in favour of respondents and it was held that the husband of the petitioner had left the suit land bearing survey No.155 in favour of Government and retained land of survey No.154

Said judgment was affirmed by the Appellate Court

Concurrent judgments were also affirmed on civil revision petition by the High Court

In her subsequent suit, the petitioner had impugned the genuineness of mutation of the respondent and claimed that her husband was the recorded owner of the suit land

Issue raised by the petitioner in her suit was, directly, substantially, collaterally and incidentally, in issue in the former civil suit of the respondent

Issue of genuineness of the impugned mutation and resumption of suit land by the Government and its subsequent transfer in the name of the respondent was finally heard and decided by a competent Court of law

Petitioner instituted her subsequent suit after decision of the Trial Court as well as Appellate Court

When she instituted her subsequent suit, the issue of genuineness of the impugned mutation entry was concurrently decided in the affirmative by the Trial Court as well as by the Appellate Court in favour of the respondent

Taking congnizance of a suit means to try a civil suit i.e. summoning defendant, framing of issues and recording of evidence; therefore, the existence of any such judgment which prevented trial of a subsequent suit is relevant and binding in a subsequent civil suit as res judicata

Production of certified copies of pleadings and former judgment were sufficient proof of existence of former judgment of a competent Court of law; therefore, principle of res judicata not only bars institution of a subsequent suit rather prevents the trial of a subsequent suit through recording of evidence

If such practice is allowed to prevail then, the principle/doctrine of res judicata would lose its legal sanctity/significance

Principle of res judicata is based on public policy that it is in the interest of State that there should be an end of litigation and no one should be vexed twice for the same cause

If it is declared that res judicata is a mixed question of law and fact, then there would be no end of subsequent litigations

Civil petition was dismissed accordingly.

Such order was assailed before the Supreme Court through Civil Petition for Leave to Appeal, which was dismissed and the review filed met with the same fate

Petitioner through present petition sought reinstatement with back benefits

Validity

Appointment of the petitioner had since been declared illegal by a Division Bench of the High Court, which was further upheld by the Supreme Court of Pakistan, therefore, High Court had no authority to render a conflicting opinion on any ground whatsoever

Matter fell within the definition of "finally heard and decided"

Petition was barred by the principle of "res judicata"

Constitutional petition was dismissed.

Doctrine of res judicata states that where there is a judgment inter-se parties, it will prevent a fresh suit between them regarding the same matter; which is a universal application as well as a fundamental concept in the organization of every jural society

Rule of res judicata is based on the consideration that it will be a hardship to an individual if vexed twice for the same cause and it is in the interest of the State and the parties in lis that there should be an end of litigation.

Appellate Court remanded the suit back to the Trial Court and directed it to provide an opportunity for both parties to present evidence

Validity

Trial Court had not decided the suit on its merits but instead disposed of the matter on the basis of findings that the suit was barred by res judicata

However, the instant suit constituted a fresh cause of action as a compromise decree was a contract between the parties of a lawsuit and if either party breached the terms of the decree, it gave rise to a fresh cause of action, allowing the aggrieved party to seek legal recourse

Revision petition was dismissed.

Section 11 of the C.P.C. defines "res judicata" as a matter that has already been adjudicated and determined by a court of competent jurisdiction.

Rule 11 of the O. VII of Civil Procedure Code, 1908, can not be properly construed in isolation without understanding the theory of law with reference to its complementary provision, namely R. 13 of the O. VII of Civil Procedure Code, 1908, which clarifies the consequence of the rejection of the plaint by keeping the right of the plaintiff alive to present a fresh plaint even if based on "the same cause of action" notwithstanding the rejection of the plaint

This is a distinctly unusual provision which also marks a clear distinction from the provisions of S. 11 of the Civil Procedure Code, 1908, as the same not merely imposes a legal bar on an unsuccessful plaintiff but actually takes away the jurisdiction of the Court to try any suit or issue in which the matter directly or substantially in issue has also been in issue in a formal suit between the same parties litigating under the same title in Court of competent jurisdiction which has been "heard and finally decided", i.e. under the well known principle of res judicata which is one of the foundational principles of procedural law

Concept of rejection of plaint under R. 11 of the O. VII of Civil Procedure Code, 1908 read with R. 13 of the O. VII of Civil Procedure Code, 1908, is clearly distinct from that of a suit which is decided and disposed of in the normal course by a Court of competent jurisdiction after recording evidence

High Court set-aside impugned judgments passed by both the Courts below and consequently the plaint filed by the plaintiffs/respondents stood rejected under R. 11 of the O. VII of Civil Procedure Code, 1908

Revision was allowed, in circumstances.

Thereafter, a tripartite agreement was executed between plaintiff, defendant and Bank in execution of which documents were handed over to the defendant upon receipt of decretal amount

Plaintiff, thereafter, entered into an agreement with the defendant whereby defendant was obliged to keep the documents as surety for the payment he had made to the Bank

Banking Court, irrespective of any arrangement between plaintiff and defendant, directed for execution of conveyance deed in favour of defendant

Plaintiff filed present suit with the claim that the defendant was only entitled to keep the documents as surety till he was re-paid by the plaintiff

Defendant filed an application under O.VII, R.11, C.P.C., for rejection of plaint on the ground of res judicata

Validity

Res judicata did not apply as the only question arising out of the case was performance of subsequent agreement

Section 11, C.P.C., did not come in the way as it talked about the "competent Court" and the "relief claimed" in the suit

Banking Court was neither a competent Court to adjudicate upon performance of subsequent agreement nor was the subsequent agreement a subject matter of banking suit before Banking Court

Application under O. VII, R. 11, C.P.C. was dismissed.

Doctrine of res judicata is built upon the consideration of public policy that there must be an end to the litigation and finality be given to the adjudication at some stage.

Section 11 of C.P.C. provides that no court shall try any suit or issue in which the matter directly and substantially in issue in a former suit between parties in a court of competent jurisdiction has been heard and finally decided

Section 11, C.P.C. does not bar the cognizance of suit but only prohibits the trial of the suit or issues.

Petitioner's contentions were that the suit property was allotted to him by drawing lot on 24/05/1971 by the Assistant Commissioner under 15 Years Lease Scheme; that Constitutional petition was dismissed in limine without discussing/giving findings on facts; that the principle of res judicata was not attracted

Validity

Respondent's review petition against said allotment was accepted by Member Board of Revenue on 10/04/1975

Petitioner challenged the same through Constitutional petition which was dismissed in limine on 21/11/1975

Order of High Court was not challenged further and the same had attained finality

Petitioner challenged order dated 10/04/1975 through the suit, which was concurrently dismissed on ground of res judicata

Order of High Court dated 21/11/1975 was final, binding on sub ordinate courts and the same could not be re-agitated before Civil Court

Contention that order in limine would not operate as res judicata carried no weight

Said order of the High Court was in constitutional petition and not in a suit, therefore S.11 of Civil Procedure Code, 1908 did not apply; but general principles of res judicata would apply

One should not be vexed twice by one/same cause

Review was allowed and allotment was cancelled mainly on the ground that alleged allotment was made after ceaser of the scheme

No illegality, irregularity and mis-reading/non-reading of evidence was found on the part of lower Courts

Revision petition was dismissed accordingly.

Question before High Court was whether the dismissal of application under O.I, R.10, C.P.C., constituted res judicata and barred fresh suit

Held; application for impleadment filed by petitioner in the related suit was based on the documents appended with the application

Petitioner, in the fresh suit, was seeking performance of the agreement in his favour; no evidence as such was recorded on which the Court was to render its findings on the merit and demerit of the case of the petitioner

Findings given on the application were based on the documents, appended in related suit and did not constitute res judicata, barring the petitioner to file fresh suit

Constitutional petition was allowed, in circumstances and the application under O.VII, R.11, C.P.C., was dismissed.

Person who applied to be made a party but was refused was not bound by the decision in the suit.

Rejection of application for review of a preliminary order does not give it any finality or make it res judicata in a subsequent proceeding.

Party whose application for review of a compromise decree on the ground that he had not consented was dismissed, cannot sue to set aside that decree on the same ground.

Section 11, C.P.C. as such is not applicable to the applications.

Rule of res judicata was based on the consideration that same cause should not be tried for the second time between the same parties and there must be the end of litigation between the parties

Cause of action in a suit merged in the judgement

No second suit could be filed on the basis of same cause of action unless it was recurring in nature

Essential condition required to be fulfilled to establish the plea of res judicata would be that matter in issue and the material point in dispute between the parties in the earlier litigation was directly and substantially in issue in subsequent litigation

Such was essential to show that earlier decision in matter was based on proper adjudication on the relevant issue either of law or fact or mixed issue of law and fact

Decision on an issue of fact based on evidence and decision on issue of law on the basis of set of facts directly and substantially by a competent Court is certainly res judicata

Adjudication on question of law or fact or mixed question of law and fact on the basis of established set of facts and determination of such question in judgement would essentially be res judicata

Court shall not try a suit or issue involving a matter no longer open to contest ,either on question of law or fact by reason of an earlier decision if the matter in issue in the subsequent suit directly and substantially was the same which was involved in earlier litigation

In the present case, parties of previous suit and the present suit were same, Property which was involved in between the parties was also same and claim of ownership of petitioner/plaintiff had been decided in pervious suit

Present petitioner failed to prove his contention in pervious suit before competent court and had not even filed appeal when the material issue of ownership was decided against petitioner

Principle of estoppel also applied

Petitioner/plaintiff couldn't resile from the admissions made during his deposition before Trial Court while recording statement on oath during the proceedings of previous suit

Civil revision was dismissed.

Rejection of plaint also provides an alternate remedy under O.VII, R.13, C.P.C. but dismissal of suit would operate as res judicata in the same matter, between the same parties, if cause of action remains one and the same.

Requirements, explained.

Plaintiff, after failing in a suit for partition, claimed that the disputed property was gifted to him by his late mother

Single Judge of High Court dismissed the suit under O.VII, R.11, C.P.C.

Validity

Donor during her lifetime had not appeared before the authorities for mutation neither had the plaintiff made any effort to get the property mutated in his name

Judgment and decree in the suit for partition was in field, subsequently the suit property was put for auction and reportedly the bids had been received

Another suit regarding the same property between the same parties could not be entertained under the doctrine of res judicata

Whatever the grievance of the plaintiff was regarding the suit property, it could only be addressed by the Executing Court as per the provisions of S.47 of C.P.C.

Appeal was dismissed.

Trial Court dismissed the suit whereas appellate court allowed the appeal and remanded the suit for adjudication on merits

Validity

Family Courts Act, 1964 had not barred the filing of a second suit for "enhancement" of maintenance allowance

Second suit was only barred in cases where the matter was directly or substantially in issue in a former suit between the parties

Earlier suit was for recovery of maintenance allowance but issue regarding its "enhancement" was neither raised nor was considered in that suit and thus was not in issue

Section 11, C.P.C. did not bar any subsequent suit, which was filed only for "enhancement" of maintenance allowance

Appellate court had rightly remanded the case to the Trial Court

Constitutional petition was dismissed.

Where previous suits are not dismissed on merits rather due to non-filing of process fee, Ss. 10 & 11, C.P.C. would not apply to the case.

Respondent was appointed in the Income Tax Department in the year 1994 on the recommendation of the Prime Minister Secretariat

Respondent was removed from service on 15.1.2003 for failure to produce his Bachelor Degree which was a condition of eligibility for appointment to his post

Respondent's recourse to departmental authorities, the Federal Service Tribunal and the Supreme Court failed to find any favour in the matter of his re-instatement

Supreme Court in its judgment held that the respondent without having the requisite qualification for the post, obtained appointment in an improper manner and consequently no right could be created in his favour to retain an illegal gain by mere efflux of time

Judgment of Supreme Court attained finality and thereafter the matter became a past and closed transaction inter se the parties to the lis

Again on the initiative of the Prime Minister Secretariat in the year 2008, case of respondent was re-opened and he was reinstated in service

After remaining in service for some 2½ years the respondent was informed in the year 2012 that he stood removed from service by restoration of the erstwhile penalty imposed on him on 15.1.2003

Federal Service Tribunal granted the respondent a right of de novo inquiry

Legality

Question was as to how the executive authorities could re-open a case after it had been decided finally by a judgment of the Supreme Court delivered inter parties in the respondent's case

Further action in the matter was barred by res judicata and the doctrine of past and closed transaction

Federal Service Tribunal's order for de novo inquiry was set aside in circumstances

Appeal was allowed accordingly.

Pursuant to a penalty imposed upon the Bank employee/respondent, he filed (first) writ petition before the High Court claiming that benefit of Voluntary Separation Scheme(VSS) and certain salaries and allowances be paid to him, and that the Bank should calculate the benefits of VSS on the basis of his last pay drawn with 20% mark up

Only relief granted to employee by the High Court, out of the prayers made by him, was that of VSS benefit and no other prayer, contained in the writ petition, was allowed by the High Court

Employee neither sought review of the said judgment nor challenged the same before the Supreme Court rather the judgment itself was accepted by him and the payment made to him under such judgment was received by him 'under protest'

Receiving of benefit 'under protest' was of no consequence for that the respondent admitted that such payment settled his dues of VSS but the remaining dues, as prayed by him in his first writ petition were not granted to him

Employee filed a second writ petition claiming salaries and allowances and that his VSS benefits be calculated on the basis of last pay drawn with 20% mark up (reliefs already prayed for but not accepted in the first writ petition)

Employee ought to have taken measures for granting him other prayers contained in the first writ petition either by seeking review or by filing proceeding before the Supreme Court, which he did not do

Further, the principle of res judicata with all its force would apply to the case of the employee for that his second writ petition against the Bank would not be maintainable for granting him the relief, which was not allowed to him by the High Court earlier for that the law assumed that such relief stood specifically denied to him by the High Court while passing judgment in the first writ petition

Appeal was allowed accordingly.

Respondent was appointed in the Income Tax Department in the year 1994 on the recommendation of the Prime Minister Secretariat

Respondent was removed from service on 15.1.2003 for failure to produce his Bachelor Degree which was a condition of eligibility for appointment to his post

Respondent's recourse to departmental authorities, the Federal Service Tribunal and the Supreme Court failed to find any favour in the matter of his re-instatement

Supreme Court in its judgment held that the respondent without having the requisite qualification for the post, obtained appointment in an improper manner and consequently no right could be created in his favour to retain an illegal gain by mere efflux of time

Judgment of Supreme Court attained finality and thereafter the matter became a past and closed transaction inter se the parties to the lis

Again on the initiative of the Prime Minister Secretariat in the year 2008, case of respondent was re-opened and he was reinstated in service

After remaining in service for some 2½ years the respondent was informed in the year 2012 that he stood removed from service by restoration of the erstwhile penalty imposed on him on 15.1.2003

Federal Service Tribunal granted the respondent a right of de novo inquiry

Legality

Question was as to how the executive authorities could re-open a case after it had been decided finally by a judgment of the Supreme Court delivered inter parties in the respondent's case

Further action in the matter was barred by res judicata and the doctrine of past and closed transaction

Federal Service Tribunal's order for de novo inquiry was set aside in circumstances

Appeal was allowed accordingly.

Principle of res judicata could not be pressed into service unless it was established that matter in issue was earlier adjudicated on merits and conclusively decided.

Decision once rendered by a competent Court on a matter in issue between the parties after a full inquiry was not to be agitated over and again

Principle of res judicata was based on public policy and necessity to ensure an end to litigation.

Punjab Board of Revenue Act, 1957 did not expressly or impliedly exclude general principle of res judicata and rule of finality of judgment

Second review petition after decision of first one on its merits could not be competently instituted

Once such power had been exhausted second review was not competent

No provision existed to file second review petition before Board of Revenue whereby first review petition was rejected and order had become final between the parties

Order passed on first review petition had attained finality as same was not challenged before any other forum

Order passed in second review petition was without any authority, in excess of jurisdiction having no legal effect which was set aside

Second review petition on the same subject was not maintainable which would lead to an un-ending cycle of litigation

Such power was not available to any successor in the Board to adjudge validity of order passed in first review petition

Only single review was available under S. 8 of Punjab Board of Revenue Act, 1957

Impugned order had no legal sanction as Board of Revenue was not competent to decide against the statutory provision of law

Member in Board of Revenue was not competent to enjoy the powers to exercise a suo motu review jurisdiction

Petitions seeking second or subsequent review on already decided matters in first review should be deemed to have become redundant

High Court directed that Board of Revenue would declare all such pending petitions for "second or subsequent review" as redundant and unauthorized forthwith

Decision arrived at by the Full Board, providing a remedy of second review in exceptional circumstances, having no legal sanction, was set aside by the High Court

Constitutional petition was accepted accordingly.

Principle of res judicata would be applicable if court emanating the decision was competent to adjudicate the matter; matter directly and substantially in issue in the subsequent suit had been directly and substantially in issue in the former suit; former suit as well as present suit should have been between the same parties or between parties under whom they or any of them claimed or litigated under the same title in the former suit; court trying the former suit had been a court competent to try the subsequent suit and the suit in which such issue was subsequently raised had been heard and finally decided in the first suit.

Appellate Court framed additional issues which had already been decided in another suit and remanded the case for decision afresh

Validity

Additional issues framed by the Appellate Court had already been decided by the Trial Court

Findings of fact recorded in the previous suit would be res judicata in the subsequent suit

Declaration given by a court with regard to issues that had been decided therein would be res judicata

Framing of additional issues was hit by principle of res judicata as judgments and decrees in the suit had attained finality

Impugned judgment and decree passed by the Appellate Court were set aside

Appeal was to be deemed to be pending before the Appellate Court for decision afresh on merits

Revision was allowed accordingly.

Matter should have been finally decided on merits after discussing evidence to invoke the principle of res judicata.

Expression 'former suit' denotes a suit that has been decided earlier in time than suit in question, that is subsequent suit, regardless of whether suit decided earlier was instituted subsequently to suit in question or not

If two suits are instituted one after the other and both relate to the same question in controversy, bar of res judicata applies even in the cases where subsequently instituted suit was decided first.

Party may be plaintiff or defendant.

Decision of the court and not its reasoning was conclusive to attract S. 11, C.P.C.

During pendency of earlier suit filed by plaintiff, second suit on same cause of action was filed by plaintiff against same defendant

Grievance of defendant was that Trial Court instead of granting ad interim injunction, should have rejected the plaint

Plea raised by plaintiff was that appeal was not maintainable as notice required under O. XLIII, R. 3, C.P.C. which was mandatory under law, had not been given to plaintiff

Validity

When appeal was admitted for regular hearing and defendant's side had put in appearance before court, it was presumed that provision of law had been met with

Second suit instituted by plaintiff during pendency of earlier Arbitration suit, was not maintainable being hit by O. II, R. 2 , C.P.C. as well as under S. 11, C.P.C., i.e. res judicata

High Court in exercise of jurisdiction under O. VII, R. 11, C.P.C., rejected second suit filed by plaintiff

Appeal was allowed in circumstances.

Plaintiff filed application under O.XL, R. 1, C.P.C. in suit praying sealing of suit property/cinema or appointment of official assignee as Receiver for protecting and preserving the same and managing and administrating affairs thereof to save the same from being wasted and damaged

Trial Court on application previously filed by defendants in their suit had already appointed Nazir of court who had taken over the possession of cinemas, when the same were operational and making profits

Defendants took plea that the application for appointment of Receiver was liable to be dismissed on grounds that suit property had already been completely destroyed and damaged by plaintiff while the same was in possession of Nazir of court, so said application was misleading; that stay order was still operative against parties, and that an earlier application on same subject had already been disposed, so present application was hit by res judicata, and that subsequent suit filed by defendant was not for possession, hence application for appointment of Receiver was not maintainable

Validity

Legal object and purpose of appointment of Receiver was either to safeguard the interest of all parties or safeguard subject matter pending final determination of rights, liabilities and claims of parties in respect of subject matter

Regardless of respective disputed questions with regard to ownership of company, every one of parties was interested to safeguard the subject matter and benefits arising thereof

Suit property, both the cinemas, were no more operative and were seriously damaged, and purpose for which Receiver had taken over control or appointed to monitor earning thereof had come to an end

All parties were in agreement regarding present status of suit property

Purpose of applications was prima facie nothing but to preserve and protect subject matter of suits

Provision of O. XL, R.1, C.P.C. did not recognize sealing of suit property

Change of status of suit property, even during pendency of suit, could well be pressed as fresh ground to repeat application, even in existence of earlier order on application of same nature or title

Court was competent to take notice of change or development, even if the same happened during pendency of suit

Prayer as to preserve, manage and protect subject matter of suit had to be examined in view of changed circumstance

Interlocutory order passed on previous application of same nature, purpose whereof had ceased to exist, was to be taken to have come to an end for all purposes, even if the same was not formally declared so by court

Present application was not barred under principle of res judicata

Status of suit property had changed, no party was in possession of suit property, suit property (cinemas) was inoperative and the same was under control of court Nazir

Present application under O. XL, R.1, C.P.C. was not maintainable as subject matter thereof had become inoperative and damaged and none of the parties was in possession thereof

Object of appointment of Receiver was either to remove someone who was in possession, or to put officer of court in possession, or preserve suit property from being wasted, secure and collect proceeds for ultimately disposal thereof according to rights and priorities of entitlement

Provisions of S.94, C.P.C. were not applicable to the present case

Parties were in serious disputes with each other and their title and status was yet to be established

Court, instead of appointing Receiver, appointed Official Assignee for inviting offers from companies or individuals to take subject matter of suit on lease or rent for ten years

At the end of litigation, ultimate successor would be legally entitled to take back property or to allow continuity of further lease or rent

Applications were disposed off in circumstances.

Plaintiff filed suit for declaration, dissolution of partnership, cancellation of sale deeds, injunction, partition of property and restoration of property, against defendant claiming that a partnership agreement was entered between parties, and defendant being managing partner of firm, purchased suit property in name of the firm and revenue entries were made accordingly, but he subsequently by executing illegal sale deeds in his personal capacity disposed off the same without permission of the firm

Defendant sought rejection of plaint of suit under O. VII, R. 11, C.P.C., contending that partnership had already been dissolved and plaintiffs had no title in suit property

Both Trial Court and revisional court dismissed defendant's application for rejection of plaint

Contentions raised by defendant were that plaintiff had filed the suit on basis of general power of attorney which had lost its authenticity after death of its executants/other partners; that plaintiff did not file any fresh power of attorney, and that plaint disclosed no cause of action as previous suits filed by plaintiffs were dismissed

Plaintiff took the plea that he had filed suit as attorney of other co-sharers/plaintiffs, and his power of attorney was coupled with interest which was protected under S. 202 of Contract Act, 1872, and that previous suit were not decided on merits and reliefs sought in earlier suits and the present suit were different

Validity

Plaintiff had alleged in the plaint that defendant had committed fraud in collusion with revenue authorities and prepared stamp paper regarding dissolution of partnership deed

As per available evidence, stamp vendor who had issued said stamp paper was not registered

Plaintiff's claim of joint ownership over suit property was still unresolved and subjudice before Trial Court

Parnternship, prima facie, existed until it was determined by court

Factum of existence of partnership deed had created cause of action to plaintiffs

Irrevocable general power-of-attorney executed in favour of plaintiff having never been challenged or revoked by legal heirs of deceased partner, being authority coupled with interest in favour of attorney regarding suit property, was still in existence and valid

Earlier suits filed by plaintiff were not finally decided on merits and their plaints were rejected being barred under the law

Provisions of S. 11, C.P.C. nor principle of res judicata were attracted to the present suit

Suit filed by plaintiff was not barred by non-filing of fresh power-of-attorney by legal heirs, as in case some of the executants of power of attorney had expired during pendency of proceedings, authorization on behalf of remaining executants would continue to remain in force

Defendant failed to point out any illegality or material irregularity committed by courts below while dismissing application under O. VII, R. 11, C.P.C.

Constitutional petition was dismissed in circumstance.

Appellate Court was not supposed to examine a new/fresh defence (plea of res judicata) at appellate stage.

Principle of res judicata was based on the principle that there must be an end of litigation and parties should not be vexed twice for the same subject matter in the same cause of action.

Res judicata would be applicable where matter directly and substantially in issue in the subsequent suit had been directly and substantially in issue in-between the same parties or between parties under whom they or any of them had claimed, with the exception that court trying the former suit had been a court of competent jurisdiction to try subsequent suit.