' NADEEM AZHAR SIDDIQI, J.---By this application, the applicants (defendants Nos.1 to 4) pray for rejection of the plaint under order VII, rule 11, C.P.C. Read with section 151 thereof inter alia on the ground that the suit is hit by res judicata.
2. Brief facts for the purpose of disposal of this application are that the plaintiffs are claiming ownership of Plot Nos.10, 11, 12 and 13, situated in Sector 6-B North Karachi Township North Karachi.
According to the averments made in the plaint, the defendant No,1 encroached upon a piece of the said land on the ground that it is part of Eid-Gah plot. Hence, the present suit was filed with the following prayer:-- "It is, therefore, respectfully prayed that this Hon'ble Court would be pleased to pass judgment and decree against the defendants as under:
(1) That the Plot Nos.10, 11, 12 and 13, admeasuring 2200 sq. Yards Sector 6-B, North Karachi Township is lawfully owned by the plaintiffs respectively and the defendant No,1 has no right of whatsoever nature to interfere with the plaintiffs on these plots and adjacent to the plaintiff land no land is earmarked for Eidgah.
(2) Permanently restrain the defendant No,1 from in any manner to interfere with or encroaching upon plaintiffs abovementioned plots and or in any manner interfere in the construction of the plots either by themselves and or through the area police and or with the help of any other person/persons or agency etc.
(3) Any other relief which this Hon'ble Court deems fit may also be granted.
(4) Cost may also be awarded."
3. Learned counsel for the applicant/ defendant No,1, Mr. Nazar Akbar, advocate, submitted that in view of the judgment in Suit No,754 of 1999, this suit is hit by res judicata as the parties in this suit as well as in Suit 754 of 1999 are the same. He also submits that the subject matter and the prayer clause in both the above suits are also the same. He further submits that the suit has been filed on the same cause of action as pleaded in Suit No,754/99. Learned counsel for the defendant No,1 submits that as per plaintiffs' own averments in paras 8 and 9 of the plaint, the plaintiffs filed Suit No,754/99 against the defendants Nos.1 and 4, since substituted by defendant No, 1 Trust, which was decreed in favour of the plaintiffs herein thus the plaintiffs are not entitled to another decree of the same kind. He prays that since the parties, the issue, cause of action and the subject matter of this suit are the same as in Suit No,754/99, therefore, the plaint in this suit is liable to be rejected as it is hit by res judicata.
4. On the other hand, Mr. K.A. Wahab, learned counsel for the plaintiff states that the principle of res judicata is not applicable in this case as parties in this suit are different than the parties in Suit No,754/99.
5. I have heard Mr. Nazar Akbar, learned counsel for the defendant No,1 and Mr. K.A. Wahab, learned counsel for the plaintiffs and have perused the record.
6. Since the only ground taken by Mr. K.A. Wahab, learned counsel for the plaintiff, is that the parties to the two suits are different, therefore, I will confine myself to this aspect of the case only.
7. The plaintiff in this suit, along with one Wali Muhammad son of Sulemanjee, first filed suit No, 148 of 1999 inter alia against two office bearers of defendant No,1, namely, Mohammad Yousuf Khan Nizami and Rais Ahmed Siddiqui, with the following prayer: "It is, therefore, prayed that this Hon"ble Court may be pleased to declare as under:
(1) That the plaintiffs are the real owners of plots bearing Nos.10, 11, 12, 13 measuring 220 sq. Yards each and plot No,14 measuring 2990 sq. Yards situated in Sector 6-B, Industrial Area, North Karachi and as such they have every right to protect their valuable properties by raising _and completing the construction of boundary walls around the above mentioned plots.
(2) To restrain and refrain the defendants their office bearers, workers, agents, attorneys, legal- heirs and other persons working under institutions whatsoever status be also restrained and refrained from taking the law and order in his hands and/or demolition of the walls already erected and further walls which are to be raised around the legally allotted plots.
(3) Any other relief(s) which this Hon'ble Court may deem fit and proper under the circumstances of the case.
(4) Cost of the suit be allowed."
8. Later on, the said two defendants, namely, Muhammad Yousuf Khan Nizami and Rais Ahmed Siddiqui, as well as another defendant namely, SDM (C), New Karachi, were deleted and the suit, vide order dated 1-10-1999 was decreed under Order XII, Rule 6, C.P.C. However, the sole surviving defendants, the erstwhile KDA, filed an appeal, bearing No,83/1999, against the order and decree which was allowed vide judgment dated 20-5-2003, the impugned order was set aside the case was remanded to the trial Court. The trial Court, vide judgment dated 31-5-2003 dismissed suit No,148/99. As no appeal was filed against the judgment dated 31-5-2003, dismissing Suit No,148/99, it attained finality.
9. In para 19 of the plaint it is mentioned that the plaintiffs are filing an application for withdrawal of Suit No,148 of 1999 on the ground that it does not within the pecuniary jurisdiction of the court below. However, this undertaking was not fulfilled and the said suit was dismissed on merits vide judgment dated 31-5-2003.
10. The plaintiffs, realizing that an appeal has been filed against the order dated 1-10-1999, whereby the suit was decreed in their favour in terms of Order XII, Rule 6, C.P.C., and pre-empting the outcome of same. Filed another suit, bearing No,754/1999 against the same two persons who were dropped from the array of defendants in Suit No,148/99 in respect of the same plot numbers as mentioned in the former suit. In the second suit i,e, Suit No,754/1999 the following prayer was made:- "(a) To restrain and refrain the defendants Nos.1 and 2, their office bearers, workers, agents, attorney and legal and other persons from working under their instructions and other leaders of whatever status be also restrained and refrained from taking the law and order in their hands and or demolition of the walls already erected and further walls which are to be raised around the legally allotted plots.
(b) Any other relief(s)_ which this court may deem fit, and proper under the circumstances of the case.
(c) Cost of the suit be allowed."
' H. The Suit, No,754/1999, was decreed ex parte vide judgments dated 31-1-2001. As no appeal was, filed against the judgment, the same attained finality.
12. A perusal of the judgment dated 31-1-2001 passed in Suit No,754/1999 shows that the said suit was filed by (i) Abdul Hadi, (ii) Muhammad Aslam, (iii) Saifur Rehman Khan, and (iv) Habibur Rehman Khan inter alia against (i) Muhammad Yousuf Khan Niazi and (ii) Rais Ahmed Siddiqui with the prayer as quoted above. Subsequently, the same plaintiffs have filed the present suit inter alia against (i) Mairajul Huda Siddiqui, (ii) Muhammad Yousuf Khan Nizami (iii) Hafiz Muhammad Yaqoob and (iv) Rais Ahmed Siddiqui.
13. When the suit in hand was filed originally the said two private persons were arrayed as defendants Nos.1 to 4. However, subsequently, vide order dated 7-2-2006, defendants Nos. 1 to 4 were substituted by Jamia Masjid Eid Gah Farooq-e-Azam Trust. However, all these deletions and substitutions have no impact on the case as in fact the claim of the plaintiff was against the Eid Gah Trust and not against the said persons in their personal capacities.
14. A perusal of the prayer clauses in Suits Nos.148/99 and 754/99 shows that they relate to the same subject matter as in this suit and are primarily against the defendant No,1 and its office bearers. Since similar decree was passed in Suit No,754/99 and the issues involved in this suit were also subject matter of Suit No,148/99, therefore, the same cause cannot be further agitated by the plaintiffs in this suit.
15. The doctrine of res judicata is of universal application and is based on the principle that public policy demands that one cause should not be tried for the second time between the same parties and there must be an end to the litigation. Section 11 in fact prohibits a court from trying 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, litigate 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 competent court.
16. In view of the above, I am of the considered view that this suit has been filed with the said same prayer, on the same subject matter and against the same parties as arrayed in Suit No,754/1999 and Suit No,148/1999 which have already been decided and the judgments therein have attained finality, it is not open to the plaintiffs to again the same cause before this court and, therefore, the present suit, is hit by the principle of res judicata.
17. The upshot of the above discussion is that I allow the application under Order VII, Rule 11, C.P.C.
And reject the plaint in the suit with cost of Rs,10,000 to be deposited with the Nazir of this Court within fifteen days. In Case of non-deposit of cost the matter may be placed in court for appropriate orders. The cost, if deposited, be appropriated towards High Court Employees Benevolent Fund.