JUDGMENT SYED SAJJAD HASSAN SHAH, J.---By way of instant revision petition, the petitioners Ghulam Farid and two others have challenged the order dated 8-2-2007 passed by the learned Additional District Judge-VI, D.I.Khan, whereby the appeal filed by the petitioners against the judgment and order dated 6-9-2006 of Civil Judge-VIII, D.I.Khan was dismissed.
2. Briefly stated facts of the case are that respondents-plaintiffs filed a suit for possession on the basis of ownership and the recovery of rent in respect of shop since 1976-1977 till the date of institution of suit at the rate of Rs.3,000 per month. The suit was contested by the petitioners- defendants by filing written statement. After framing of issues and recording of evidence, the learned trial Court passed preliminary decree in favour of respondents-plaintiffs for possession of the suit shop to the extent of.15/48 shares and also the decree for the rendition of accounts since 1976 till date of institution of suit. The petitioners- defendants filed appeal against the judgment and decree passed by the learned trial Court. The learned appellate Court dismissed the appeal.
The operative part of the judgment is reproduced as under: -- "As far as the rent at the rate of Rs.3,000 is concerned, of course, the same has been awarded to the plaintiffs from the year 1976-1977 till institution of the suit. No doubt at present if is Rs.3,000 but from 1976-1977 it is not possible which of course required rendition of account. Same can be considered by the trial Court at the time of final decree even by seeking. Assistance of commission in the matter to determine the rent in respect of the suit shop from 1976-1977 till decree of the suit."
3. The petitioners-defendants have sought no further remedy against the judgment and decree of learned trial Court. Later on the respondents applied for final decree and the petitioners filed objection petition for investigation of their objections raised in the said petition dated 11-5-2006.
The petition was resisted by the respondents-plaintiffs by filing written reply: The learned trial Court dismissed the objection petition. The petitioners-defendants filed appeal against the order of dismissal of their objection petition by the learned trial Court was also dismissed. Hence, the instant revision petition.
4. The learned counsel. For the petitioners-defendants contended that the learned trial Court while deciding the objection petition has failed to attend the questions raised by the petitioners- defendants. In order to elaborate his arguments, the. Learned counsel further contended that the decree passed by the learned Civil Judge is pertaining to the recovery of mesne profits from the year 1976-1977 till the institution of suit is against the law. He was of the view that the learned trial Court cannot pass decree for recovery of mesne profit beyond the period of three years, therefore, the decree was illegally passed which was not amenable to any further proceedings and liable to be set aside.
5. As against that, the learned counsel for the respondents-plaintiffs vehemently contended that the petitioners-defendants have attempted to re-open the issues which have already been decided by the Court of first instance and upheld by the appellate Court. Thereafter, the learned trial Court has no jurisdiction to interfere with the judgment and decree earlier passed. The learned counsel further argued that the objection petition of the petitioners defendaits is hit by the principles of res judicata and estoppel as well.
6. I have considered the arguments of learned counsel for the parties and carefully perused the record.
7. Perusal of the written statement filed during proceedings of Suit No.112/1 reveals that the petitioners-defendants admitted therein that after the death of predecessor of the respondents- plaintiffs, they have been regularly paying the rent of the shop since 1976-1977 till now and nothing is outstanding against the petitioners-defendants. To this effect, Issue No.8 was framed and while jointly discussing Issues Nos.8 and 11, it was held that:-- "Perusal of the file reveals that plaintiffs are receiving the rent through Court, in 'token thereof Receipts are available on the file. Muhammad Ajmal special attorney of plaintiffs while appearing as P. W.4 has stated that being owner of 1/2 share of suit shop, plaintiffs are entitled to get half share from the rent recovered by defendants and as property is rented out and they had requested for the recovery of rent. The portion of evidence goes unchallenged by defendants. So, keeping in view Articles 132 and 133 of Qanun-e-Shahadat Order, 1984, this fact is admitted, hence, plaintiffs are entitled to get rent in proportionate to their respective share as their share in the suit shop is 15/48 so they are entitled to get from the defendant No.1 the amount of rent from 1976 till date to the, extent of 15/48 years, hence, both the issues are decided accordingly."
8. The learned appellate 'Court while deciding the appeal confirmed the above referred findings of learned trial Court. The petitioners have not challenged the judgments and decrees passed by both the Courts below.
9. The contention of the learned counsel for the petitioners is misconceived and not supported by any provision of law.
However, the same is also derogatory to the provisions contained in section 11, C.P.C. And Article 114 of the Qanun-e-Shahadat Order, 1984 because when a judgment passed inter-parties it will prevent the filing of a fresh suit regarding the same matter. The purpose lying behind the said section is that the justice requires that every cause should be tried once fairly and conclusively. It must be made effective with regard to the disputes arising in future, so that the public tranquillity and conclusive end of certain litigation must be achieved having the binding effect on the parties to the lis, otherwise there would be no end of litigation, in support whereof, the A observation in Corpus juries Secundum is reproduced as under:-- "(17) Res judicata is a rule of universal law pervading every well regulated system of jurisprudence, and is put upon two grounds, embodies in various maxims of common law; the one of public policy and necessity, which makes it in the interest of the State that there should be an end to litigation...
Interest republicaeut sit finislitium; the other, the hardship on the individual that he should be vexed twice for the same cause.
(18) Res judicata is a part and a form of Estoppel... Estoppel by matter of record or quasi: "Estoppel of record or quasi of record also known as estoppel per rem gudicatum, arises (1) where an issue of fact has been judicially determined in a final manner between the parties by a tribunal, having jurisdiction, concurrent or exclusive, in the matter and the same issue comes directly in question in subsequent proceedings between the same parties (this is something known as cause of action estoppel)... (2) where the first determination by the Court having exclusive jurisdiction and the same issue comes incidentally in question in subsequent proceedings between the same parties this is something known as issue estoppel;
(2) In some cases where an issue of fact affecting the status of a person or thing has been necessarily determined in a final manner as a substantive part of the judgment in rem of a tribunal having jurisdiction to determine that status, and the same issue comes directly in question in subsequent civil or criminal proceedings between the parties whatever.
Where the earlier decision is that of a Court of record, the resulting estoppel is said to be of record': where it is that of any other tribunal, where constituted by agreement of the parties or otherwise, the estoppel is said to be quasi of record: The fact that estoppel of record or quasi of record arising."
(Hats, 4th Edn. Vol. 16, para. 1503).
The above is taken from a judgment rendered in the case titled Messrs Gadoon Textile Mills Ltd. And another v. Chairman, Area Electricity Board WAPDA (PESCO), Peshawar and others (PLD 2005 Supreme Court 430).
10. In the instant case, admission made in written statement by the petitioners-defendants and subsequently the findings of the trial Court and that of the appellate Court firmly bind the petitioners-defendants not to again agitate the matter which has already been conclusively decided by the Court of competent jurisdiction, as it has attained finality. Reliance placed on the case of Ejaz Hussain v. Bashir Ahmad and others (2000 SCM R 1190) wherein it was held that:-- "After hearing the learned counsel for the petitioner and perusing the record, we conclude that there is nothing to show that the evidence on record has been misread or has not been taken into consideration by the Courts below. The Courts below have held that the earlier-litigation between the parties was concluded by the competent Court after hearing the parties. Thus, the controversy has come to an end according to law. This being so, principles of res judicata are attracted to the case in hand."
In the case of Mst. Yasmeen v. National Insurance Corporation and others (2004 CLC 979) it was held that:- "Mr. Siddiq Mirza, learned counsel for respondent No.1 submitted that the above mentioned decision of the Supreme Court is not applicable to the present case because a plea about the limit of their liability was taken in the written statement filed in the suit. The contention is not acceptable because the responsibility of the defendant/ respondent No.1 was not over just by filing written statement with such a plea. This respondent failed to press the plea before the Civil Court thereafter at the stage of evidence or arguments and also allowed the decree to become final by not filing an appeal to challenge it. In any case, the Executing Court has no jurisdiction to re- determine the liability to re-consider the law for the purpose. The decree had become final and the Executing Court has no option but to execute it as it was passed."
11. The provisions of Article 114 of Qanun-e-Shahadat are also to the same effect and reproduced below:-- "114. When one person has, for his declaration, act or omission intentionally caused or permitted another person to believe a thing to be true and to act upon such belief neither he nor his representative shall be allowed in any suit or proceedings between himself or such person or his representative, to deny truth of that thing."
As the above cited provision prevents the litigant from raising inconsistent thing in subsequently instituted proceedings, he cannot blow hot and cold at the same time. To be more specific, the approbation and reprobation is not permissible in the legal proceedings, therefore, the litigant cannot deviate, from his previous stance.
12. For the reasons mentioned above, there is no force in the instant revision petition which is hereby dismissed leaving the parties to bear their on cost..