MUHAMMAD KHALID ALVI, J. - With the concurrence of the leaned counsel of the parties, this petition is treated as "Pacca Case".
2. Brief facts of the case are that respondents Nos. 3 to 5 filed a Suit for Recovery of maintenance allowance against the petitioner. The petitioner filed his written statement and denied his paternity with respect to respondents Nos. 4 and 5. The learned Family Judge framed necessary issues but issue regarding legitimacy not framed. On 15.2.2001, respondents' evidence was recorded but for some reasons petitioners right of cross-examination was closed. Likewise, his right of evidence was also closed on 1.3.2001 and the suit for maintenance was decreed by the learned Trial Court: The same was assailed by the petitioner through an appeal, which was allowed vide order dated.
26.6.2001 with the condition that the should first pay interim maintenance and thereafter he was allowed to cross- examine the witnesses of the respondents and also to lead his evidence. On remand the learned Judge Family Court on account of non-payment of interim maintenance again demand the suit vide judgment and decree dated 30.6.2001. It was again challenged through an appeal by the petitioner which stood dismissed vide judgment and decree dated 16.8.2001. The petitioner then challenged the same through Writ Petition No. 15668 of 2001, which was dismissed by this Court vide order dated 19.9.2001, which was further assailed before the Hon'ble Supreme Court through C.P. No. 3426/2001, which was also dismissed on 15.3.2002.
3. During the pendency of the above proceedings, the petitioner filed a suit for declaration on 21 2.2001 against the private respondents seeking a declaration that respondents Nos. 4 and 5 are not his children. The respondents entered appearance, filed their, written statement, whereupon issues were framed. The respondents then filed an application under Order VII, Rule 11, C.P.C, on 11.7.2002 seeking rejection Of plaint on the ground that the question involved in the instant suit had already been substantially raised and decided in the earlier round of litigation. The same was contested by the petitioner. The learned Trial Court vide order dated 6.5.2004 allowed this application and rejected the plaint. This order was assailed by the petitioner through an appeal, which also stands dismissed vide order dated 20.7.2004. Both these orders are being assailed through the instant Civil Revision.
4. It is contended by the learned counsel for the petitioner that in the suit for maintenance as well the petitioner had denied his paternity regarding respondents Nos. 4 and 5 but no issue was framed regarding this fact, It is further submitted that no-doubt the suit for maintenance remained decreed against the petitioner throughout up to the level of Hon'ble Supreme Court but it all happened on technical grounds, It is further submitted that the fact of paternity was neither brought under issue nor it was decided by any of the forums in the earlier round of litigation therefore, provisions of Section 11, C.P.C, were riot attracted.
5. On the other hand, leamed counsel for the respondents contends that the fact of paternity has already been decided in the earlier round bf litigation, inasmuch as, the respondents were held to be entitled to maintenance allowance from the petitioner who is none-else but father of respondents Nos. 4 and 5.
6. I have considered the arguments of the learned counsel for the parties.
7. There is no denying the fact that petitioner had raised the objection of paternity in his written statement in the earlier round of litigation where maintenance was claimed by the respondents, In the said suit for maintenance no issue regarding the fact of paternity was framed by the learned Judge Family Court. Respondents' suit no-doubt succeeded throughout but as observed in the earlier part of the judgment it all happened on technical grounds. The fact of paternity was never reduced into an issue nor it was decided by any forum, therefore, it cannot be said that principle of res judicata contemplated by Section 11 of the C.P.C, is attracted to the facts and circumstances of the instant case.
8. For what has been stated above this petition is allowed. Orders passed by the two Courts below rejecting the plaint of the petitioner are set aside. Resultantly, the suit filed by the petitioner shall be deemed to be pending and the same shall be decided in accordance with law.
9. Parties are directed to appear before the learned Senior Civil Judge, Sargodha on 15.2.2006, who may either hear this case himself or may entrust the same to some other Court of competent jurisdiction. 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.