' This revision petition is directed against the judgment/decree, dated 29-11-1997 passed by the learned Additional District Judge, Lahore affirming the decree of the learned trial Court dated 22- 10-1995.
2. The plaintiff/respondent No,1 filed a suit on 31-3-1985 against the petitioner and respondent No,2/defendants for declaration with consequential relief of possession. It was averred in the plaint that the plaintiff was married to defendant No,1/respondent No,2 on 9-9-1978. The plaintiff was owner of a house on a plot measuring 4 Marlas 58 sq. Ft. In Alhamd Colony, Lahore. The defendant No,1 (her husband) wanted to sell the house of the plaintiff but she declined to do so. He failing in his nefarious designs prepared a forged and fictitious general power of attorney in his favour from the plaintiff, thereafter, sold the suit house on 21-4-1983 vide registered sale-deed No,14007 dated 3-5-1983 in favour of defendant No,2/petitioner. The general power of attorney in favour of the defendant No,1 and the sale-deed in favour of defendant No,2 was the product of fraud and the sale was without consideration.
' The defendant/petitioner resisted the suit alleging that the suit house was purchased with consideration through defendant No,1 as attorney of the plaintiff. It was further stated that the said attorney of the plaintiff had executed an agreement to sell on 4-4-1983 in favour of the defendant, the sale-deed has been rightly registered and that the suit was barred by time. Out of the pleadings of the parties following issues were framed:--
(1) Whether the defendant No,2 is bona fide purchaser of suit house for value without notice, if so, its effect? OPD
(2) Whether the plaintiff is estopped by his word and conduct to bring this suit? OPD
(3) Whether the suit is time-barred? OPD
(4) Whether general power of attorney allegedly executed by the plaintiff in favour of the defendant No,1 on 21-12-1982 is forged and fictitious document? OPP
(5) If issue No,4 is proved, whether agreement to sell made by the defendant No,1 in favour of the defendant No,2 on 4-4-1983 and sale-deed executed and registered by defendant No,2 on 3-5- 1983 is null and void and ineffective qua right of the plaintiff? OPP
(6) If issues Nos.4 and 5 proved, whether the plaintiff is entitled to recover possession of suit house?
OPP
(7) Relief.
' The learned trial Court after recording the evidence of the parties decreed the suit vide judgment dated 22-10-1995. The petitioner remained unsuccessful in his appeal before the learned Additional District Judge, Lahore vide judgment dated 29-11-1997.
3. Learned counsel for the petitioner contended that the petitioner filed a suit for declaration against the respondent No,1 on 2-10-1989. It was decreed ex parte on 6-1-1992. The respondent moved an application under Order IX, rule 13, C.P.C. For setting aside the ex parte decree. The same was allowed vide order, dated 19-11-1997 and the ex parte decree was set aside. However, on appeal, the Appellate Court restored the ex parte decree, dated 6-1-1992. The said decree, dated 6-1-1992 operates as res judicata between the parties. Reliance was placed on Pir Bakhsh represented by his legal heirs and others v. The Chairman Allotment Committee and others PLD 1987 SC 145, Shahul Hamid v. Tahir Ali 1980 SCM R 469 and Court of Wards, Hyderabad v.
Muhammad Kaim PLD 1965 Kar.
170. He further contended that the plaintiff in para. 7 of her plaint averred that she had settled the defendant in the property as tenant, she did not receive the rent from him. She herself went to the house in dispute to contact the tenant where she was informed by the defendant No,2 that he had purchased the said property. Learned counsel urged that she had filed a suit belatedly thus, accepted the sale and that the petitioner was a bona fide purchaser.
' Conversely the learned counsel for the respondent submitted that the suit which was decreed ex parte on 6-1-1992 was filed on 2-10-1989 during the pendency of the suit filed by plaintiff/respondent. The said suit was not maintainable on the same subject-matter and the decree, dated 6-1-1992 would not operate as res judicata. He further contended that the respondent No,1 filed an application on 13-12-1994 for setting aside the ex parte decree dated 6-1- 1992 which was allowed on 19-11-1997. The appeal of the petitioner against the judgment/decree dated 22-10-1995 (arising out of the instant suit) was dismissed on 29-11-1997. This revision petition was filed on 10-12-1997 whereas, the appeal of the petitioner against the order setting aside the ex parte decree dated 6-1-1992 was allowed on 4-2-1999. Neither the power of attorney nor the sale- deed was proved on the record. A case has been registered against the respondent No,2 (the husband of the respondent No,1) for forging the said power of attorney. He is an absconder.
Reliance was placed on Abdul Ghafoor v. Chief Settlement Commissioner and another 1985 SCM R 464 and Swami Turiananda alias Diunesh Chandra Guha Mustafi and another v. Sisir Kumar Sen PLD 1955 Dacca 96.
4. I have gone through the judgments of the Courts below, perused the record and considered the arguments of the learned counsel for the parties. First I would like to dispose of the question of res judicata. Mst. Bushra, plaintiff, had filed the instant suit on 31-3-1985. During the pendency of the suit, the defendant/petitioner filed a suit on 2-10-1989 for declaration to the effect that defendant (respondent No,1) had by operation of law lost all her rights and interests in the house. As a consequential relief the prayer for permanent injunction restraining the defendant (respondent No,1) from dispossessing the plaintiff or interfering in any manner in the possession of the plaintiff was also made. The said suit was decreed ex parte on 6-1-1992, Exh.D.2. The respondent made an application Exh.P.5 on 13-12-1994 for setting aside the ex parte decree stating that Naseem Ahmad Siddiqui (defendant/ petitioner) appeared as D.W.2 in the suit filed by her on 21-11-1994 and produced the certified copy of the ex parte decree dated 6-1-1992 and she came to know of the said decree for the first time on the said date. She prayed for setting aside the said decree. The learned trial Court allowed that application and set aside the decree, dated 6-1-1992 vide judgment, dated 19-11-1997. In the meantime the suit (out of which the present revision petition has arisen) filed by the plaintiff/respondent against the petitioner was decreed on 22-10-1995. The learned Additional District Judge dismissed the appeal filed by the petitioner on 29-11-1997. The petitioner also filed an appeal against the judgment, dated 19-11-1997 passed by the learned Civil Judge setting aside the ex parte decree which was allowed on 4-2-1989. In my view the instant case is not hit by the principle of res judicata. Both the suits pertain to the same subject-matter.
The appeal is a continuation of a suit. In the case Court of Wards, Hyderabad v. Muhammad Kaim (supra) relied upon by the learned counsel for the petitioner while relying on Commentary of Civil Procedure Code 12th Edition by Mulla it was observed that:-- "The expression 'former suit' means a previously decided suit and the same interpretation applied to appeals."
' In a similar situation Mehmood, J., in the case of Balkishan and another v. Kishan Lal ILR 11 All. 148 (F.B.), observed that the rule is not limited to the Courts of first instance, that it applies equally to the procedure of the first and second. Appellate Courts. The observation is reproduced as under:- "It seems to me that the main object of the doctrine of res judicata is to prevent multiplicity of suits and interminable disputes between litigants, ne autem lites immortals essent, dum litigantes mortals suet. This staying of Voet is in accord with the maxims nemo debt bis vex ari pro ulna teamed causa, and the broader maxim interest reipublicoe ut sit finis litium. This being so, the doctrine, so far as it relates to prohibiting the retrial of an issue, must refer not to the date of the commencement of the litigation, but to the time when the Judge is called upon to decide the issue.
For even in cases where the Judge has commenced the trial of an issue which is also an issue in a pending litigation, a final judgment pronounced meanwhile in such previous litigation by a competent Court (the identity of parties and other conditions being satisfied) should operate as res judicata preventing the Judge dealing with the later litigation from adjudicating differently. If this is not done, it seems to me that the evil against which res judicata aims would not be removed and the doctrine itself would be defeated. So far as the justification of this view from the provisions of the Civil Procedure Code is concerned, I may say that the rule contained in section 13 is not limited to the Court of first instance, that it applies equally to the procedure of the first and second Appellate Courts by reason of sections 582 and 587 respectively, and, indeed, even to miscellaneous proceedings by reason of the general provisions of section 647 of the Code."
' The learned Division Bench in the Karachi case Court of Wards, Hyderabad v. Muhammad Kaim (supra) observed as under:- "The doctrine of res judicata is to confer finality upon the decisions of the Court so as to avoid multiplicity of suits and proceedings. Once a matter has been finally decided by a Court of competent jurisdiction it becomes the duty of the Court, to give effect to that decision provided, of course, the requirements of the doctrine of res judicata are fulfilled. We cannot now in this appeal reagitate the same question which had been agitated before another Division Bench of this Court which finally decided it and upheld the decision of the Assistant Judge, Hyderabad. That decision has become fmal and, therefore, operates as res judicata for the purposes of this appeal before us in which we are called upon to try the same issues which have already been tried and conclusively decided."
' Our Supreme Court in the case Pir Bakhsh represented by his legal heirs and others v. The Chairman Allotment Committee and others (supra) held that a decision once made in a case, by the highest Court empowered to pass upon it, is conclusive upon the parties to the controversies and the privies, who are not allowed afterwards to revive in a new proceeding for the purpose of raising the same or any other question. The matter in controversy has become res judicata, a thing definitely settled by judicial decision. Since the appeal of the petitioner against the judgment in favour of the respondent was decided on 29-11-1997 and the appeal filed by the petitioner against the order setting aside the ex parte decree, dated 6-1-1992 was decided on 4-2-1999. The appeal earlier decided would operate as res judicata against the petitioner.
' In the case of Shahul Hamid v. Tahir Ali (supra) our apex Court observed as under:-- "We have given our anxious consideration to the submission of the learned counsel but find no force in it. The main thing to be taken notice of is that section 11, C.P.C. (Act V of 1908) which lays down the principle of res judicata, is mandatory and as such, a party to a former suit decided by a Court of competent jurisdiction, can avoid its provisions only by taking recourse to section 44 of the Evidence Act I of 1872, on ground or fraud or collusion or if we may add by showing that the previous judgment was a nullity or non-existent in the eye of law. In the absence of any such thing a party cannot be estopped from pleading law as contained therein on the well known principle that there can be no estoppel against the statute and neither any Court of law, nor any agreement can estop a party to plead law which is his 'inalienable' right under Article 4(1) of the Constitution."
Looking from another angle the petitioner filed the suit against the respondent on 2-10-1989 when the suit against him filed by the plaintiff/respondent was already pending on the same subject- matter. He obtained the decree ex parte and it came to the notice of the respondent for the first time on 21-11-1994 when the petitioner appeared as a witness in the suit filed by the respondent.
The petitioner concealed the said fact. In fact the decree dated 6-1-1992, Exh.D.2 is void, based upon fraud and misrepresentation.
5. Report of the Forensic Science Laboratory, Exh.P.1 shows that Urdu signatures of Mst. Bushra on general power of attorney, Exh.P.2 are forged and do not bear identical characteristic with her specimen signatures and that the specimen signatures of Mst. Bushra on general power attorney bear similarities with the specimen signature obtained from Muhammad Azeem Butt/respondent No,2 (the husband of respondent No,1). The Expert appeared as P.W.3. Nothing material could be extracted from him. Muhammad Azeem Butt (the husband of the plaintiff) did not appear. A criminal case has been registered against him under sections 420/468/471/109, P.P.C. The plaintiff appeared as P.W.5 and stated that she never executed any power of attorney in favour of respondent No,2. Onus shifted on defendants to prove the veracity of power of attorney, Exh.P.2.
Abdul Hameed and Malik Pervez Saleh are the witnesses of the power of attorney, neither of the witnesses appeared in the witness-box. Similarly on the one witness of the sale-deed Exh.P.3 appeared as D.W.1 the power of attorney being based upon fraud and misrepresentation, the respondent No,2 had no authority to sell the house in question. In my view both the documents i,e, power of attorney Exh.P.2 and the sale-deed Exh.P.3 are not proved on the record. The defendant/petitioner has not pleaded the defence of bona fide purchaser and stated that he purchased the suit property through a person who was holder of a registered power of attorney; however, an issue has been framed on it. There is nothing on the record to show that he was a bona fide purchaser.
6. For what has been stated above this petition has no merit and is dismissed leaving the parties to bear their own costs.. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.