' MUHARRAM G. BALOCH, J.---The defendant through this application (C.M.A. No, 8309 of 2007) under Order VII, rule 11, C.P.C. Seeks rejection of plaint on the following grounds:-- (1 That the plaintiff has no cause of action against the defendant.
(2) The suit is barred by res judicata.
(3) Without prejudice to the above the suit is barred by limitation.
(4) That the suit is barred by law. Plaintiff has already instituted Rent Case No, 12/2007 for recovery of rent, at enhanced rate of the period for which the alleged compensation/damages has been claimed in the instant suit.
2. The facts of the plaintiff's case in brief are that the plaintiff No,1 owns an industrial plot bearing No, E-13, SITE, Karachi, admeasuring 1.96 Acres, whereas the plaintiff No,2 is the managing director of plaintiff No,1 company. According to the plaintiffs they established a re-rolling mill at the above mentioned plot with its head office. The defendant accidentally met the plaintiff No,2 and impressed him of big business of budding re-rolling mills at the suit plot which is on a portion of the suit plot admeasuring 60 x 50 feet. Subsequently, the same was given to the defendant on monthly rental basis on certain conditions. However, the plaintiffs alleged that the defendant falsely claimed that the above mentioned plot has been sold out to him by the plaintiffs, therefore, he filed Suit No, 402/1991 for specific performance of contract in this Court, which was subsequently dismissed. 'The plaintiffs further submitted that the defendant also filed M.R.C. No,1316/1987 for the portion of tenement measuring 63 acres before the learned Rent Controller and the plaintiffs also filed Rent Case No, 57 of 1989 which was dismissed as such F.R.A. No, 491/1990 was filed by the plaintiffs. The plaintiffs also filed Suit No, 447 of 1989 for damages and mesne profits. It is further pleaded by the plaintiffs that Suit No,402/1991 filed by the defendants was dismissed being counterblast to Suit No,447/1989, which too was dismissed being barred by res judicata. However, the present suit has been filed on the ground that the defendant has admitted in suit No, 447 of 1989 that suit plot i,e, subject matter does not constitute his tenement and as such he is in illegal and unauthorized possession ever since. Thus, the plaintiffs have filed this suit for recovery of damages, compensation, mesne profits for total sum of Rs,13,96,00,000 with mark-up.
3. The defendant has filed application for rejection of plaint under Order VII rule 11, C.P.C. Mainly pleading therein that the suit is barred by res judicata and, therefore, the plaintiffs have no cause of action against the defendant. Further the suit is barred by time and so also the suit is barred by law. The plaintiffs have filed counter-affidavit to the above application and denied the assertions of the defendants.
4. I have heard learned counsel for the parties and with their assistance perused the material placed before the Court.
5. Mr. Muhammad Shafi Siddiqui, learned counsel for the defendant, submitted that the suit is for recovery of damages, mesne profits etc, filed on 20-2-2007 and according to him the defendant was tenant of the plaintiffs since 8-6-1987 and, therefore, due to dispute the defendant filed M.R.C.
No, 1316 of 1987 and so also the plaintiffs filed Rent Case No, 57 of 1989 for ejectment of the defendant. According to learned counsel the issue in respect of tenancy decided in favour of the defendant and the Rent Case No,57 of 1989 was dismissed by the learned Rent Controller. As against the plaintiffs filed F.R.A. No, 491 of 1990 which was dismissed on 4-5-1992 by short order and reasons for dismissal were given on 13-7-1992. Mr. Siddiqui further submits that the defendant claimed to have purchased the suit plot from the plaintiffs, therefore, he has filed Suit No, 402 of 1991 for specific performance. Of the contract in this Court and he further submits that the plaintiffs have already filed Suit No, 447/1989 for damages, as stated above, but both the suits were dismissed and, therefore, according to him, issue in which the matter directly or substantially in issue in the former suit between the same parties has been decided, therefore, the suit of the plaintiffs is barred under section 11, C.P.C. For res judicata. Besides, the plaintiff has exhausted all the remedies available to him. He further submits that since the suit is barred by res judicata, therefore, the plaintiffs have no cause of action against the defendant and so also the suit is barred by limitation along with other laws on the ground that the plaintiffs have already instituted Rent Case No,12 of 2007 for fixation and recovery of rent at the enhanced rent of the period for which the alleged compensatory damages has been claimed in the instant suit.
6. On the other hand Mr. Zahid Hamid learned counsel for the plaintiffs, submits that the plaintiffs own an industrial plot in SITE Karachi admeasuring 1.93 acres for carrying re-rolling business.
According to him the defendant was given the above mentioned piece of plot i,e, 60 x 50 feet for which the defendant promised to return back the possession within six months but he had an evil eye, therefore, he neither returned the possession of the plot nor paid the rent, therefore, rent case was filed against him, as stated above, and so also suit for declaration, possession, mandatory injunction and damages was filed against the defendant. Though, the said suit was dismissed but he himself also filed Suit No, 402 of 1991 which was dismissed being counterblast to Suit No,447 of 1989 filed by the plaintiffs. Learned counsel further submitted that dismissal of suit filed by the defendant for specific performance of the contract amounts that he admitted to be in possession of the suit plot which in fact in his illegal occupation, therefore, he filed the suit for damages with fresh cause of action arose to them in December, 2006 with additional land besides the land already in occupation of the defendant was occupied illegally by the defendant and, therefore, according to him neither the suit is based on old cause of action and nor it is barred by res judicata, as alleged by the defendant. He further submitted that the defendant in first round of litigation has trespassed the plaintiffs land and, therefore, the plaintiffs have rightly filed present suit for recovery of damages, possession, mesne profits with markup. Learned counsel further submitted that in case any act or omission of the Court is made in any order that will not prejudice the case of any party. According to him admission of the defendant is preponderance in Rent Case No, 57 of 1989. In support of his contentions learned counsel has placed reliance on the cases of Adalat Khan v. Mst. Begum Bibi (1991 SCMR 1381), Sheodan Singh v. Daryao Kunwar (AIR 1966 SC 1332), Pakistan Tobacco Co. Ltd. v. Pak Cigarette Labour Union (PLD 1964 Karachi 337), Custodian of Evacuee Property v. Tariq Mehmood Butt (2001 YLR 3139), Pakistan Steel Mills Corporation v.
Muhammad Ishaque (1995 CLC 1000), Hafiz Muhammad Qasim v. Mst. Soorat Bibi (2000 YLR 2606), Tajuddin Khan v. Habib Bank Ltd. (1998 CLC 563), Mst. Barkat Bibi v. West Pakistan Province (1984 CLC 2314), Nooruddin v. Pakistan and others (1997 CLC 1971), Babu Lal and another v. Hari Bakhsh (AIR 1918 Lahore 250), Mustafa Kamal v. Daud Khan. (PLD 2004 SC 178), Muhammad Ashraf v.
Muhammad Latif (2005 YLR 756) and Pakistan Industrial Promoters Ltd. v. Nawazish Ali Jafri (2003 YLR 1277).
7. I have considered the above arguments and of the view that the main contention of learned counsel for the defendant is that since the issues involved in the suit have already been decided in the earlier suit, therefore, the present suit is hit by res judicata and so also it is barred by time and accordingly the plaintiff had no cause of action against the defendant.
8. There is no cavil with his arguments on the principle of res A judicata. The term 'Res' signifies a claim, thing, right and interest which enforceable at law an issue a disputed point of fact or law.
The word B `judicata' means question of dispute already adjudicated upon by a competent Court of law thus the phrase 'Res judicata', signifies the matter which has already been determined and adjudicated upon by Court C of competent jurisdiction.
9.
9. I have gone through the material available on record including the judgment dated 28-3-2001 passed in Suit No, 447/1981 filed by present plaintiff against the defendant along with another one namely Muhammad Hanif which was for declaration, possession, mandatory injunction and damages. The above judgment is authored by his lordship Mrs. Justice Mushir Alam whereby he held that the defendant was tenant for the tenement in question, which is part of the subject matter, therefore, the defendant cannot be rejected otherwise provided under the rent laws.
Consequently, the suit of the plaintiff was dismissed as all the issues were decided against the plaintiff.
10. The above' judgment is in respect of an area of 60 feet x 50 feet equivalent to 3000 sq feet of one shed on Plot No, E-13, SITE Karachi. According to the above judgment the defendant was held to be in lawful possession of this area as tenant of the plaintiff, therefore, the suit in respect of declaration, possession and mandatory injunction and damages was dismissed on the above finding and the cause of action was shown in the plaint in the year 1989. In the present suit the plaintiff has pleaded that the defendant has admitted part of portion, which he allegedly purchased, and other part comprises of his tenement and the same has given cause of action to 'him to bring the suit. The said admission of the defendant is reproduced thus:-- "At this stage the plaintiff offered to me to sell not only the portion of the plot already in my possession as tenant but also some additional portion of the plot for purchase. In all the plaintiff had offered me for purchase of an area of 0.63 acres."
11. I have also perused the plaint and found that the plaintiff has pleaded that in the overshadowing circumstances under compulsion finding no other way out the plaintiff was forced by the judgment in Suit No, 447 of 1989 dismissing his claim being barred by res judicata to file Rent Case No, 25 of 2004 in the Court of II-Senior Civil Judge/Rent Controller (West) Karachi for eviction of the defendant from both the sheds by claiming him to be the tenant of the same on the ground of personal use and default. This Rent Case was dismissed and as the grounds namely personal bona fide need and default did not find favour with the learned Rent Controller, the plaintiff No,1 filed FRA No, 27 of 2005 which is subjudiced and the same is reserved for judgment. The present suit is outcome of an admission and the fact that the defendant is in wrongful possession of the area beyond tenancy which he claimed to be in possession i,e, 60 x 50 sq. Feet, therefore, he has' brought this suit on fresh cause of action which, according to the plaint, accrued to him when he made his admission in Suit No,447 of 1989, that Shed 'A' did not constitute his tenement and as such was in its unauthorized possession, the defendant has failed in discharge of his legal duties and such wrong being continued and recurring the cause of action continues to arose.
12. I am also in agreement with the contention of learned counsel for the plaintiff that the rejection of plaint in part not permissible. So also that the claim of the plaintiff in respect of damages cannot be rejected. This finds support from the above case law cited by him. Besides, it is also held in the case of Ghulam Ali v. 'Asmat Ullah (1990 SCMR 1630) and Mrs. Zaibunnisa v. Muhammad Sajid (2007 CLC 1757) that the rejection of plaint in part is not permissible. The plaint would be accepted or rejected on the basis of facts disclosed therein.
13. In view of the above, since the plaintiff has mentioned about the further improvement of the case after filing of the previous suits and there is an admission of the defendant in Suit No,447 of 1989 that he is in possession of the portion beyond 60 x 50 sq. Feet, therefore, in my humble view the plaintiff had fresh cause of action, therefore, principle of res judicata shall not be applicable to the facts of the present case. Hence, the suit is not hit by res judicata as pleaded by the defendant as the suit is based on various facts which constitute fresh cause of action including admission of the defendant that he is in possession beyond the area which was in his possession as tenant. Thus plaint does disclose cause of action and so also with fresh cause not barred by time.
14. Under such circumstances, the plaint cannot be rejected in parts but it is either to be accepted in whole or rejected as such. Accordingly, the application in hand is dismissed being devoid of force, however, with no order as to costs.