' MUHAMMAD JEHANGIR ARSHAD, J.---This revision petition has been filed against the order dated 28-2-2003 passed by Mr. Muhammad Afzal Javed, learned Additional District Judge, Bahawalpur whereby the learned Additional District Judge, while accepting the appeal of the respondent set aside the order dated 13-6-2002 passed by Malik Muhammad Iqbal, Civil Judge, Bahwalpur rejecting the plaint of respondents in terms of Order VII, rule 11, C.P.C. (wrongly dismissing suit) by invoking principle of res judicata.
2. The facts relevant for the disposal of this revision petition briefly stated are that vide plaint dated 14-7-2001 respondents Nos.1 and 2 filed suit for partition of property fully described in the head note of plaint in the Court of Senior Civil Judge, Bahawalpur against the present petitioners and others.
The present petitioners moved application before the learned trial Court under Order VII, rule 11, C.P.C. Seeking rejection of the plaint on the ground that earlier between the parties suit titled as Mst. Noor Elahi and others v. Zia-ul-Hassan and others for partition of the same property was finally decided by the Court of competent jurisdiction and the same was dismissed on merits vide judgment dated 29-3-2001, hence the present suit was not maintainable thus the plaint in such suit was liable to be rejected on the basis of principle of res judicata. The respondents Nos.1 and 2 filed written reply by denying that their suit was hit by the principle of res judicata. However, the learned trial Court vide order, dated 13-6-2002 while agreeing with the contention of the petitioners rejected the plaint by invoking Order VII, rule 11, C.P.C. Holding that the said suit was hit by the principle of res judicata. Feeling aggrieved against the order of the learned trial Court the respondents Nos.1 and 2 filed appeal which was accepted by the learned Additional District Judge vide order 28-2-2003 who while setting aside the order of the learned trial Court remanded the case to the trial Court for deciding the same afresh in accordance with law. The said order of the learned Additional District Judge has been impugned in this civil revision.
3. The learned counsel for the petitioners by placing reliance on "S. M. Shafi Ahmad Zaidi through Legal Heirs v. Malik Hassan Ali Khan (Moin) through Legal Heirs" 2002 SCM R 338; "Muhammad Saleem and others v. Rashid Ahmed and others" 2004 SCM R 1144; "Muhammad Yasin and another v. Civil Judge Ist Class, Kabirwala and 2 others" 2003 CLC 185; "Amanullah and others v. Dilbar Khan and others" 1998 M LD 461 (Pesh.) and "Khair Muhammad v. Government of Sindh through Deputy Commissioner, Hyderabad and 8 others" 1997 M LD 2745 has argued that the learned Addl: District Judge acted illegally and with material irregularity by passing the impugned order and restoring the suit for decision on merits. His contention is that since it is established by the judgment dated 29-3-2001 in earlier suit titled as Mst. Noor Elahi and others v. Zial-ul-Hassan and others passed by Civil Judge Ist Class, Bahawalpur that the matter in dispute being the same in the earlier suit was substantially and finally decided by the Court of competent jurisdiction, hence the learned trial Court was right in rejecting the plaint under Order VII, rule 11, C.P.C. By holding the second suit being hit by the provisions of section 11, C.P.C. His further contention is that as held in the abovementioned judgments the matter having been finally adjudicated between the parties cannot be re-agitated on the principle of res judicata and that it was the requirement of law that incompetent suit be buried at its inception and that such practice held by the Honourable Supreme Court of Pakistan in the interest of litigant parties and judicial institutions itself as rejection of plaint would save the time and expenses of the parties and the Courts get more time to devote it for the genuine causes.
4. On the other hand the learned counsel for the respondent has supported the order of learned Additional District Judge by placing reliance on the judgment of Honourable Supreme Court of Pakistan in the case of "Jewan and 7 others v. Federation of Pakistan through Secretary, Revenue, Islamabad and 2 others" 1994 SCM R 826.
5. I have considered the above mentioned arguments of both the learned counsel and have also gone through the material available on the record.
6. There is no cavil to the proposition that incompetent suits must bc buried at its inception but to hold certain suit as incompetent there should be some evidence on the record and for that matter bare reading of the contents of the plaint has to be taken into consideration for the purpose of invoking the provisions of Order VII, rule 11, C.P.C. I have gone through the contents of the plaint filed by the respondents in the present suit and it is not made out from the bare perusal of the plaint that the suit filed by the respondent was prima facie hit by the principle of res judicata as envisaged under section 11. I am fortified in my view by the above judgment of the Honourable Supreme Court of Pakistan passed in Jewan's case and the relevant observations of the Honourable Supreme Court are as follows: "With regard to the observation of the Courts below that there were earlier proceedings between the parties and therefore. The present suit instituted by the appellants was barred on the principle of the res judicata may only observe that the record of the earlier proceedings is to be brought before the Court on record in accordance with law and only then it is to be considered whether the controversy decided in the earlier proceedings is the same which is agitated by the appellants in the present suit. Until such time the documents relating to earlier proceedings \ ere brought on record in accordance with law and the matter was thoroughly examined with regard to controversy in the two proceedings, it was not possible for the Courts below to reach the conclusion that the present suit involves the same controversy which was decided in the earlier proceedings. We, accordingly, allow this appeal, set aside the orders of the lower Courts rejecting the plaint under Order VII, rule 11, C.P.C."
7. Respectfully following the above laid down principle of law I have no option but to maintain the impugned order of the learned Additional District Judge which is in line with the law declared by the Honourable Supreme Court of Pakistan in the above mentioned judgment. So far as the case- law cited by the learned counsel for the petitioner is concerned I have gone through the same but the same is not g applicable to the facts and circumstances of the present case being distinguishable.
8. Before parting with the order, 1 would like to make it clear that if the petitioners still feel that the suit filed by the respondent is hit by the principle of res judicata in terms of Order VII, rule 11, C.P.C.
And there is no need of proceeding with the trial of the entire suit they may opt to apply to the trial Court after filing of the written statement for treating the issue of res judicata as preliminary issue and if any such prayer is made the learned trial Court shall be at liberty to treat such issue as preliminary issue and decide the same in independence of the remaining issues but if the learned trial Court feels that instead of wasting time in deciding of preliminary issue of res ,judicata the learned trial Court would be at liberty to proceed with the trial of the entire suit but in any eventuality the learned trial Court shall ensure the conclusion of the trial on or before 24-12-2005 with compliance report to the Deputy Registrar of this Bench
9. The upshot of the above discussion is that this revision has got no force and the same is dismissed. The trial of this case is entrusted to Senior Civil Judge, Bhawalpur who will proceed to decide the suit within the above mentioned stipulated time. The parties shall appear before the learned Senior Civil Judge, Bahawalpur on 29-7-2005.