C.M.A. No,2476 of 2004.
' 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. Briefly facts for the purpose of disposal of this application are that the plaintiff is claiming ownership of Plot No,14, admeasuring 2900 sq. Yards, situated in Sector 6-B, North Karachi Township, North Karachi. According to the averments made in the plaint, the defendant No,1 in collusion with other persons are trying to encroach upon the said plot and are not allowing the plaintiff to raise construction thereon. Hence the present suit was filed with the following prayer:-- "It is, therefore, respectfully prayed that this Honourable Court would be pleased to pass judgment and decree against the defendants as under:---
(1) That the Plot No,14 admeasuring 2900 sq. Yards in Sector 6-B, North Karachi Township is lawfully owned by the plaintiff and the defendant have no right of whatsoever nature to interfere with the plaintiff's possession or with the construction by the plaintiff on his plot in accordance with law.
(2) Permanently restrain the defendant No,1 from in any manner to interfere with or encroaching upon the plaintiff above mentioned plot 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 Honourable Court deems fit may also be granted.
(4) Cost may also be awarded."
3. On 12-4-2004 defendants Nos.1 to 4 filed an application under Order VII, rule 11, C.P.C. (C.M.A.
No,2476 of 2004), praying for rejection of the plaint in the suit inter alia on the ground that suit is hit by res judicata as the plaintiff had earlier filed suit against the same parties in respect of the same cause of action and subject-matter.
4. The suit was filed against private defendants Nos.1 to 4 who are office-bearers of Jamia Masjid Eid Gah Farooq-e-Azam Trust and on 7-2-2006 they were ordered to be substituted by the said Trust as defendant No, 1 .
5. Learned counsel for the applicant/defendant No,1, Mr. Nazar Akber, Advocate, submitted that in view of the judgment in Suit No,148 of 1999 and Suit No,754 of 1999 filed against deleted defendants Nos.2 and 4, this suit is hit by re judicata as the parties in this suit as well as in Suit 148 of 1999 and Suit No,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 this suit has been filed on the same cause of action as pleaded in Suit No,148/99. Suit No,148/99 was dismissed vide judgment dated 31-5-2003 and in Suit No,754 of 1999 plaintiff obtained ex parte decree against the deleted defendants Nos.2 and 4. Since no appeal was filed against the said judgments passed in Suits Nos.148/99 and 754/99, therefore, the same attained finality. He prays that since the parties, the issue, the cause of action and the subject-matter of this suit are the same as in Suit No,148/99 and Suit No,754/99, therefore, the plaint in this suit is liable to be rejected as it is hit by res judicata.
6. 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,148/99.
7. I have heard Mr. Nazar Akbar, learned counsel for the defendant No,1 and Mr. K.A. Wahab, learned counsel for the plaintiff and have perused the record.
8. 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 as the learned counsel has not controverted the other submissions of the learned counsel for defendant No, 1.
9. Section 11 of the Code of Civil procedure, which deals with res judicata reads as under:--- "No Court shall try 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 parties under whom they or any of them claim, litigating 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 Court."
10. A perusal of the judgment, dated 31-5-2003 in Suit No,148/1999 shows that it was filed by (i)
Abdul Hadi, (ii) Muhammad Aslam, (iii) Saffur Rehman Khan, (iv) Habibur Rehman Khan and (v)
Wali Muhammad against (i) Director-General, K.D.A., (ii) S.D.M. (C), New Karachi, (iii) Muhammad Yousuf Khan Nizamai, and (iv) Rias Ahmed Siddiqui. This suit has been filed by the last named plaintiff, i,e, Wali Muhammad, claiming himself to be the partners of plaintiff. Subsequently, an application under section 151, C.P.C. Was filed by the plaintiff seeking deletion of the names of defendants Nos.2, 3 and 4, namely, S.D.M.(C), New Karachi, Muhammad Yousuf Khan Nizami, and Rais Ahmed Siddiqui, respectively. The application was allowed and the names of the said defendants were ordered to be deleted from the array of defendants. However, the fact remains the same that the suit was filed against Yousuf Khan Nizami and Rais Ahmed Siddiqui, who are trustees of the present defendant No,1. The only difference appears to be that earlier one suit was filed for five plots and subsequently, two suits were filed one in respect of four plots and other, Suit No,1218 of 2003 in respect of one plot.
11. When the suit in hand was filed originally the said two persons were arrayed as defendants Nos.2 and 4. However, subsequently, defendants 1 to 4 were substituted by Jamia Masjid Eid Gah Farooq- eAzam Trust. It may be mentioned here that defendants Nos.1 and 3 were also office-bearers of the said 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. Subsequently, this suit was filed by the same plaintiff against the same defendants as was in Suit No,148 of 1999 and to avoid implications of section 11, C.P.C. This suit was filed by only one plaintiff against the Trust. A further attempt to mislead the Court was made when this suit was shown to have been filed by "Sanesra Star Screen Industries and through its partner Haji Wali Ahmed son of Sulemanjee" the same property is shown to have been owned by "Wali Muhammad son of Sulemanjee" in Suit No,148/99 and 754/99. These two statements are self- contradictory inasmuch as either the plot was owned by the partnership firm or by Wali Muhammad.
12. It may not be out of place to mention here that in paragraph 30 of the plaint in this suit it is mentioned that "the plaintiff are filing an application for withdrawal of the suit (No,148/99) in view of the fact that the present suit (No,1217 of 2003) has been filed. However, this undertaking was not fulfilled and Suit No,148/99, as stated above, was dismissed on merits vide judgment, dated 31-5- 2003.
13. The prayer clause in both these two suits can be divided in two parts; (i) the plaintiff claims ownership of Plot No,14, sector 6-B, North Karachi Township and (ii) the plaintiff seeks permanent injunction against defendant No,1 restraining it from interfering with or encroaching upon the said plot. As regards the first prayer, it was dismissed against defendant No,2 vide judgment, dated 31- 5-2003 passed in Suit No,148/99 under Order XVII, rule 3, C.P.C. And as regards the second prayer it was allowed in the same suit vide order, dated 1-10-1999 whereby the suit was decreed against office-bearers of defendant No,1, who were originally arrayed as defendants in this suit, under Order XII, rule 6, C.P.C. Therefore, there remains nothing to adjudicate in this suit.
14. 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.
15. 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,148/1999 and since the judgment, dated 31-5-2003 passed in Suit No,148/1999 was never assailed it attained finality and the subsequent suit i,e, the present suit, is hit by the principle of res judicata.
16. 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.
17. All the pending applications also stand dismissed. 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.