1. GULZAR AHMED, J.--- The parties' counsel have argued C.M.A. No,2050 of 2005 being an application under Order VII, rule 11. C.P.C. filed by the defendant No,1 for the rejection of the plaint.
2. The grounds urged in the application are that the suit is barred by time, by the principles of res judicata and also under Order II, rule 2, C.P.C. No counter-affidavit to this application is filed.
3. I have heard the arguments of the learned counsel at length.
4. Brief facts of the matter are that the plaintiff has filed this suit for recovery of US $ 8.29 million and Rs,11 million against defendants (the heading of the plaint erroneously shows that the suit is for recovery of Rs,11 million). These amounts are claimed by the plaintiff on the premise that the defendant No,2 Port Qasim Authority has awarded work of dredging/maintenance of channel to the defendant No,1 Port Services (Pvt.) Limited for which the defendant No,1 hired dredgers from the plaintiff and there was an agreement between the defendant No,1 and the plaintiff for sharing of profits. It is, however, stated that because of certain difficulties disputes and differences between the parties, the agreement was not signed and plaintiff filed Suit No,1082 of 2002 for recovery of US $ 8.29 million from defendant No,1 which matter was referred to arbitration and the Arbitrator rejected the plaintiff's claim on the ground of limitation. It is alleged that payment of customs duty and port dues for acquiring the dregers was the liability of the defendant No,1 and defendant No,2 but it was not paid by them and the plaintiff ultimately paid an amount of Rs,11 million through a bank guarantee furnished to Port Qasim Authority. Plaintiff's agent made a claim for refund of the port dues from the defendant No,1 but it was not paid to the plaintiff. It is alleged that the amount of US $ 8.29. million demanded by the plaintiff from which the amount of Rs,11 million is sought to be recovered by this suit was not payable to the defendant No,1 by the defendant No,2, as the contract- awarded to defendant No,1 was terminated by the defendant No,2 and plaintiff was expelled from the work and the payment in respect of dredger work performed by defendant No,1 was not released by defendant No,2 to defendant No,1 and there was no cause of action for the plaintiff against defendant No,1 and even a suit filed by the plaintiff could not have been brought to successful end; and that the payment was withheld on account of directives of the Customs Department and on instructions of F.I.A. which led to the filing of Suit No,1156 of 2003 by the defendant No,1. It is stated that on 8-5-2001 the F.I.A. confirmed that the inquiry was closed and embargo on payment imposed was lifted and that the defendant No,2 has not settled the payment of dues with the defendant No,l. Consequently the suit herein is filed.
5. Miss Sana Minhas, learned counsel for the defendant No,1 took me through the record and contended that in Suit No,1082 of 2002 plaintiff has made the similar claim as in the present suit which claim was ultimately referred to the Arbitration and the Arbitrator rejected the claim as being time-barred and the award was filed in Court to which no objections were filed by the plaintiff and it was made the rule of the Court vide order adapted 7-10-2003; and that no appeal against the order by which the award was made rule of the Court was filed consequently, the order of the Court attained finality. She has stated that through the present suit the plaintiff is reopening the issue which stood decided by the Arbitrator which was made the rule of the Court and therefore, not only the suit is time-barred but it is also barred by the principles of res judicata as well as under Order II, rule 2, C.P.C. In support of her submission she has relied upon Abdul Latif v.
6. Manzoor Ahmed 1993 MLD 177; S.M. Shafi v. Hassan Ali Khan 2002 SCMR 338; Fazal Rahim v. Al-Wajid Town 1994 MLD 126; Al-Riaz Agencies v. Chambers of Commerce 2001 CLC 1966; Trustees v.
7. Gujranwala Steel 1990 CLC 197; Abdul Majid v. Muhammad Afzal Khokhar 1993 SCMR 1686; Asghar Ali v. P.K. Shahani 1992 CLC 2282; Hashim Khan v. National Bank PLD 2001 SC 325; Mona Batool v.
8. Sindh Government 1992 MLD 777; Muhammad Tufail v. Atta Shabir and others PLD 1977 SC 200; Muhammad Anwar v. Messrs Associated Trading Co. 1989 MLD 4750; Muhammad Anwar v. Messrs Associated Trading Co. PLD 1995 Kar. 214; Abdul Majeed v. Abdul Ghafoor PLD 1982 SC 146 and Mukhtar Ali Khan v. Government of Pakistan 1993 CLC 1239.
9. On the other hand Mr. Muhammad Sharif, learned counsel appearing for the plaintiff has contended while considering application under Order VII, rule 11, C.P.C. the Court has to confine itself to the contents of plaint and they are assumed to be true. He has further contended that the award was not based on merits but was passed under Order VII, rule 11, C.P.C. and therefore, in terms of Order VII, rule 13, C.P.C. the plaintiff was competent to file this suit. He has further contended that time for filing of the suit has not commenced because the payment from defendant No,2 to defendant No,1 remain suspended and thus, no cause of action accrued to the plaintiff. He has contended that fraud was played upon the plaintiff and, therefore, the plaintiff was entitled to file suit when it discovered the fraud from the contents of plaint of Suit No,1156 of 2003. He further contended that the claim of Rs,11 million made in this suit was not the part of the earlier suit and, therefore, the suit is maintainable. He has contended that there cannot be partial rejection of the plaint. In support of his submission he has relied upon Haji Allah Bukhsh v. Abdul Rahman 1995 SCMR 459; Jewan v. Federation of Pakistan 1994 SCMR 826; Messrs Haji Muhammad Sharif Ata Muhammad v. Messrs Khoja Mithabhai Nathoo PLD 1960 (W.P.) Kar. 10, Sakhi Muhammad v. Munshi Khan PLD 1992 SC 256; Messrs Pakistan Telecommunication Corporation v. Abdul Sattar 1995 MLD 1563; Mst. Kaneez Fatima v. Member (Revenue), Board of Revenue Punjab, Lahore PLD 1973 Lah. 459; Abdul Majeed v. Khyber Vegetable Ghee Mills 1984 CLC 2392; Sharifullah v. Mumtaz PLD 1980 Pesh.
10. 87; Abdul Majeed v. Muhammad Afzal Khokhar 1993 SCMR 1686; Mian Khan v. Auorangzeb 1989 SCMR 58; Mrs. Zubeda v. City District Government Karachi PLD 2004 Kar. 304 and Mst. Asmat Ara Begum v. Mst. Hajira Bibi PLD 1964 Pesh. 283.
11. By now it is established principle of law that while considering an application under Order VII, rule 11, C.P.C. for the rejection of the plaint, not only the plaint has to be examined but the Court can also look at and examine the undisputed and admitted material that may be made available by the parties on the record. Reference in this regard is made to the cases of S.M. Shafi, Fazal Rahim and Al-Riaz Agencies (supra). It is also not in much dispute that in deciding the question regarding the rejection of plaint, the averments made in the plaint are considered to be correct unless they be absurd or in contradiction of itself.
12. Annexure "A" to the plaint is a copy of plaint of Suit No,1082 of 2002. It shows that parties in that suit are the same as in the present suit. In the plaint of Suit No,1082 of 2002 para.18 contains break up of the amount claimed in that suit. Para.25 contains facts of cause of action and para. 27 contains valuation of suit which are reproduced as follows:-- "18. However, since defendant No,1 had failed to pay the customs duty, the dredgers could not leave. Ultimately the plaintiffs were forced to pay. US $172,545 by way of customs duty plus Pak Rs,11,000,000 to Port Qasim as port charges, besides incurring huge additional expenses to the tune of US$ 7.9 million for getting the dredgers out of Pakistan. Thus, defendant No,1 is liable to compensate the plaintiff in the sum of US $8.9 million."
13. "25. The cause of action for the suit arose between the period 199394 when the work of dredging was performed by defendant No,1 in joint venture with the plaintiff and subsequently in 1998, when the plaintiff paid the customs duty etc. and incurred expenses to obtain release of the vessel and in June, 1997, when defendant No,1 agreed to authorize the plaintiff to obtain payment of its claim from defendant No,2 and subsequently, on various dates when defendant No,1 assured the plaintiff to resolve the issue amicably and not to withdraw the amount from defendant No,2 and finally in March, 2002 when the plaintiff came to learn that the defendant No,1, with a view to defraud the plaintiff, had been extending false promises with the intention of deceiving them and causing loss to them and when legal notice dated 6-3-2002 was sent to defendant No,1 and on 21-9-2002 when reply from defendant No,2 was received in response to the legal notice dated 18-9-2002 and continues to arise from day to day."
14. "27. That for the purpose of Court and jurisdiction the suit is valued at $ 8.29 million for recovery and Rs,5,00,000 for injunction and maximum court-fee has been paid."
15. The prayer is as follows:-- "(i) For a decree in favour of the plaintiff and against the defendant No,1 in the sum of US $ 8.29 million with profit/mark-up @ 16% per annum from the date of the filing of the suit till payment.
(ii) For a permanent injunction against the defendant No,1 from obtaining payment from defendant No,2 in respect of payments due to defendant No,1 for the dredging work done for defendant No,2.
(iii) For a permanent injunction restraining defendant No,2 from making any payment to defendant No,1 in respect of payments due to defendant No,1 for the dredging work done for defendant No,2.
(iv) For such other or further reliefs as this Honourable Court may deem fit and proper in the circumstances of the case may be granted.
(v) Costs."
16. In para-1 of the plaint of this suit it is admitted that Suit No,1082 of 2002 was filed which was referred to arbitration. Annexure-5 to the application in consideration is a copy of Award dated 12-3-2003 given by the learned Arbitrator. No counter-affidavit to this application is filed by the plaintiff. Even otherwise, the learned counsel for the plaintiff did not dispute the copy of the Award that has been filed with the application. The Award shows that the plaint of Suit No, 1082 of 2002 was filed as a statement of claim by the plaintiff before the Arbitrator. The learned Arbitrator heard the arguments of the parties'. Counsel on application seeking rejection of claim on the ground that it was time-barred. The learned Arbitrator after extensive discussion gave his finding on the point which is at page 11 of the Award and runs as follows:-- "In the facts and circumstances prima facie the amount of customs duty and expenses incurred for the release of vessel somewhere between 1995-1997. Prima facie the proceedings filed on 28- 10-2002 as such the claim is barred as instituted after expiry of the prescribed pern the year 1997, there was lull from 1997 till the filing of the suit as such prima facie claim is barred by time."
17. The Award was filed in this Court and was registered as Suiod.. Lastly the claimant stated in para.26 that in June, 1997, when the respondent authorized the claimant to obtain payment from Port Qasim Authority. In any case the respondent had agreed to authorize iit No,296 of 2003. No objection to the Award was filed by the plaintiff. By order dated 7-10-2003 the Award was made rule of the Court. Such copy of the order is filed as Annexure-6 to this application. It is admitted by the learned counsel for the plaintiff that the order by which the Award was made rule of the Court was not challenged by the plaintiff. The order making Award rule of the Court, therefore, attained finality.
18. On 29-12-2004 the suit herein was filed with the following prayer:--
(a) For a decree in favour of the plaintiff and against the defendant No,1 in the sum of US $ 8.29 million and Rs, 11 million with profit/mark @ 16% per annum from the date of the filing of the suit till payment.
(b) For a permanent injunction prohibiting and restraining the defendant No,1 from receiving payments from defendant No,2 to the extent of US $ 8.29 million and Rs,11 million and also prohibit and restrain the defendant No,2 from making payments to defendant No,1 to the extent of US $ 8.29 million and Rs,11 million, directly or indirectly themselves or through any agent, in any manner and by any process whatsoever.
(c) Any other relief which this Honourable Court may deem fit and proper to grant.
(d) Costs of the suit to be borne by the defendants.
19. In para.2 of the plaint, plaintiff has stated that under the law and contract the payment of Port charges was duty of defendant No,1 and the defendant No,2 who had the money of the defendant No,1 with it, was bound to recover the same from defendant No,l. In para.5 of the plaint, the plaintiff has stated that as the defendants did not pay the customs duty and Port dues, plaintiff had to pay the same amounting to Rs,11 million through bank guarantee furnished to Port Qasim Authority. In para.7 of the plaint the plaintiff has made the following allegation: "7. That in fact the amount of balance of contract out of which the plaintiffs had demanded the amount of US $ 8.29 million and from which the present amount of Rs,11 million is sought to be recovered were not payable to defendant No,1 by defendant No,2 on account of the following reasons...."
20. The above narration of facts amply shows the claim for Rs,11 million towards the payment of custom duty and Port charges was very much part of the plaintiff's earlier Suit No,1082 of 2002 and the learned Arbitrator in this Award has dealt with them and found the same to be time-barred.
21. The plaintiff's assertion that its claim for customs duty and Port charges amounting to Rs,11 million was not the subject-matter of its claim in Suit No,1082 of 2002 which was also filed as statement of claim before the learned Arbitrator is apparently not sustainable. This aspect of the matter is further clarified when plaintiff in para.7 of the plaint of present suit states that it demanded the amount of US $ 8.29 million and from which the present amount of Rs,11 million is sought to be recovered. Thus, the amount of Rs,11 million is part and parcel of plaintiff's claim of US $8.29 million.
22. Plaintiff's claim in para.11 of the plaint that Rs,11 million paid by the plaintiff on account of customs duty and port charges was not the part of plaintiff's earlier Suit No,1082 of 2002 is not supported by the contents of the plaint of that earlier suit more particularly its para.18 and not even by the contents of para.7 of the plaint of this suit which collectively make one and the same sound that Rs,11 million was the part of plaintiff's earlier Suit No,1082 of 2002. Yet again the plaintiff has made a claim of US $ 8.29 million as was done in the earlier suit on the same facts as in the earlier suit.
23. Plaintiff's counsel submission is that plaintiff's cause of action has not matured or that the plaintiff had no knowledge of stopping of payment by defendant No,2 to defendant No,1, it may in the first place be mentioned that it was not the case of the plaintiff in the earlier suit that its cause of action has not matured. The plaintiff did not withdraw its earlier suit rather it agreed for arbitration which unfortunately for the plaintiff it lost, as its claim was found to be time-barred. The plaintiff's counsel submission that plaintiff had no knowledge of stopping of payment by defendant No,2 to defendant No,1, it may be noted that it was the plaintiff itself who has filed complaint to F.I.A. and also gave legal notices dated 6-3-2002 and 18-9-2002 to defendant No,2 asking for non-release of payment to defendant No,
1. These facts are mentioned in paras.17, 22 and 23 of the plaint of earlier suit. Plaintiff, in the earlier suit has claimed injunction against defendant No,2 not to make payment to the defendant No,1 and similar relief is also sought in this suit as well. Thus, the fact that defendant No,2 is not making payment to defendant No,1 was known to the plaintiff even when the earlier suit was filed by it. Even otherwise, there is no basis to claim that plaintiff's payment was dependent upon the defendant No,2 paying defendant No,1. Plaintiff admittedly has no previty with the defendant No,2. Its claim is only against defendant No,1 for the recovery of which it has filed earlier suit and lost. Plaintiff's counsel has not been able to show as to what nexus Suit No,1156 of 2003 which is filed by defendant No,1 against defendant No,2 has with the plaintiff's claim against defendant No,1. The plea of fraud by defendants against plaintiff is not substantiated by any material. Even otherwise, it could not have been the matter of consideration in this suit as decided by the apex Court in the case of Abdul Majid (supra).
24. As regards the submissions of the learned counsel for the plaintiff that the plaintiff's claim in the earlier suit was rejected under Order VII, rule 11, C.P.C. and plaintiffs can maintain fresh suit under Order VII, rule 13, C.P.C. in the case of Sakhi Muhammad (supra) the apex Court has held that when the plaint is rejected for non-deposit of 1/5th of the probable value of the property under section 22 of the Punjab Pre-emption Act within time allowed by Court, the second suit on same cause of action will not be barred under rule of res judicata if the fresh suit is filed within limitation. Similar view is taken in the other cases cited on this point by the learned counsel for the plaintiff. In this regard reference is made to the case of Raja Ramnad v. Velusami Tevar AIR 1921 PC 23 where it was held that the plea of limitation was raised and decided in the earlier proceedings, in subsequent proceeding it will not be allowed to be raised as no appeal is filed in respect of decision on limitation and therefore, it stands as binding between the parties. In the case of Shah Harichand Nanji v. Shah Damji Hemchand AIR 1956 Kutch 13 at page 14 it is held as follows:-- "But that would not mean that if the question has been considered and decided by the Court, it can be reopened by the Court at a later stage of the same proceedings nor can it be re-agitated and reconsidered in a subsequent proceeding. There must be a finality to every decision, whether it be on a point of law or a point of fact.
25. Once the Court decides that the matter is within time, or is time-barred, that question must be considered as conclusive between the parties unless it is set aside in appeal. Otherwise, a party can go on agitating the question over again and again there would be no end to the dispute."
26. It, therefore, follows that when the earlier suit of the plaintiff which went into arbitration and was rejected by an Award which Award also was made rule of the Court and no appeal having been filed, as matter of fact and law it became final and conclusive between the parties and the plaintiff is barred from reopening or re-agitating the same matter by this subsequent suit which on all four is the same as the earlier one. Consequently, in order to maintain a subsequent suit in terms of Order VII, rule 13, C.P.C. it has to be shown that not only the subsequent suit is in time but it will also have to be shown that the earlier suit was not barred by limitation.
27. For what has been discussed above, I find no relevance to deal with question of Order II, rule 2, C.P.C. as the claim of the plaintiff in this suit in substance is for US $ 8.29 million which was also the amount of claim in earlier suit.
28. I am, therefore, of the considered opinion that the plaintiff's suit is barred by rule of res judicata.
29. The application is allowed and plaint of this suit is rejected.