' IRFAN SAADAT KHAN, J.---This second civil appeal has been filed against the judgment and decree dated 17-8-2010 passed by First Additional District Judge, Karachi Central in Civil Appeal No,74 of 2010 filed by the appellants whereby the appeal as dismissed and the judgment and decree dated 23-8-2008 passed by III Senior Civil Judge, Karachi Central in Suit No,533 of 2004 was confirmed.
2. Briefly stated the facts of the case are that the respondents are legal heirs of late Sagheer Ahmed, who filed Suit No,533 of 2004 for possession, mesne profits and damages against the present appellants. It was averred that late Sagheer Ahmed, hereinafter referred to as "predecessor-in-interest of the respondents" allowed the predecessor-in-interest of the appellants to live in suit property due to close relationship. However, the said allowance was on temporary basis only. The predecessor-in-interest of the appellant expired on 16-12-1996 leaving the legal heirs, who are the appellants in the present appeal. Thereafter, the predecessor-in-interest of the respondents requested the appellants to vacate the said premises but the same was not done by the appellants. The predecessor-in-interest of the respondent also expired on 10-1-2002. The respondents then served a legal notice on the appellants calling upon them to vacate the said premises and to hand over its possession to them. It was further averred in the said legal notice that since after the occupation of the said premises the appellants have made some addition/alteration and constructions on the said property which act was also illegal and without lawful authority. Thereafter, a suit, bearing Suit No,1032 of 2003 was filed by the respondents against the appellants for permanent injunction. However, this suit was subsequently disposed of by the learned Judge on 19-11-2003 on the undertaking by the appellants that no construction/alterations etc. Would be made by them in the suit property. Thereafter, since the property was not vacated by the appellants, the respondents filed another suit, bearing Suit No,533 of 2004 with the prayer that the appellants may be directed to vacate the suit property. The learned Judge thereafter heard the matter and vide judgment dated 23-8-2008, decided the matter in favour of the respondents, against which an appeal was filed by the appellants which was also dismissed by the appellate Court vide Judgment dated 17-8-2010 against which the present second appeal has been filed.
3. Mr. Gul Zameer Solangi, learned counsel for the appellants, submitted that the judgments and decrees passed by the two Courts below are illegal and uncalled for as the same are the result of misreading and non-reading of the evidence and misinterpretation of law as the Courts below have not considered the averments made in the cross-examination. While elaborating his view- point, the learned counsel submitted that previously the respondents filed Suits bearing Nos.306 of 1985, 686 of 1985, 580 of 1988 (old 306 of 1985) and 1023 of 2003 on the same sets of facts. He, therefore, submits that principle of res judicata is squarely applicable to the present case. He further submitted that the suits filed by the respondents previously were unconditionally withdrawn hence the provisions of Order XXII: Rrule, 1, C.P.C. Are applicable to the present case. He further submitted that in the subsequent suit i,e, Suit No,533 of 2004 the claim of the plaintiffs/respondents was barred by time which was not considered by the two Courts below. In support of his contentions the learned counsel has relied upon the following decisions:---
1. Muhammad Hassan v. Nazar Muhammad alias Nazir Khan through LRs (2006 YLR 717),
2. Mrs. Laila Sarfaraz and others v. Hussain Haroon and others (2008 YLR 254),
3. Karamat Ali Khan and another Sardar Ali and others (PLD 2001 SC AJK 30),
4. Messrs China Harbour Engineering Co. v. Water and Power Development Authority and others (2001 YLR 1781),
5. Hashim Khan v. National Bank of Pakistan, Quetta (PLD 2001 SC 325), and
6. Messrs Sindh Engineering (Pvt.) through Managing, Director v. OTIS Elevator Company and others (2000 CLC 1524).
4. Mr. Adnan Usman, Advocate for the respondents, submitted that the present appeal is not maintainable as in the instant case the decree has been challenged and the certified copy of the said Decree has not been filed along with the memo of appeal. Hence, according to the learned counsel, this appeal is not maintainable on the face of it. While elaborating his view point, the learned counsel submitted that filing of the certified copy of the decree is pre-requisite of the law and if the same has not been filed the appeal is liable to be dismissed in limine. He states that since certified copy of the decree has not been filed within time as per Article 154 of the Qanun-e- Shahadat Order, 1984 the present appeal is not maintainable. In support of his contentions the learned counsel relied on the following decisions:---
1. Abdul Rashid and others v. Abdul Ghani and others (2011 SCMR 1597),
2. Muhammad Anwar and others v. Mst. Soma (1981 CLC 1479),
3. Abdul Majeed and others v. Mst. Haleema and others (1987 CLC 2331).
4. Abdul Rasheed and others v. Abdul Ghani and others (2011 MLD 1597),
5. Muhammad Iqbal and another v. Muhammad Ahmed through LRs (2008 SCMR 855),
6. Bilawan Khan v. Amir Saleem Rehman and others (PLD 2013 Pesh. 38),
7. Maqbool Ahmed v. Government of Pakistan (1991 SCMR 2063),
8. Manager through LRs v. Hashim through LRs (PLD 2007 Kar. 174),
9. Messrs Kashmirian (Pvt.) Ltd. Through Shomaila Loan Marker and others v. Ghulam Nabi Gujjar and another (2006 CLC 482),
10. Muhammad Mazhar Iqbal v. VIth Additional District Judge and others (2010 MLD 439),
11. Hafiz Noor Muhammad and others v. Ghulam Rasul and others (1999 SCMR 705), and
12. Pirzada Amin Mosa and others v. Mrs. Shamim Shahnawaz (1984 CLC 3080).
5. The learned counsel for the appellants, while giving his rebuttal reiterated his previous submissions and states that if a close look is taken on the present suit it would be clear that the present suit is replica of the previous suits as the facts are akin, parties are the same and prayers are also same. Hence, the judgments passed by the two Courts below are liable to be set aside on the point of res judicata alone.
6. I have heard both the learned counsel, perused the record and have gone through the case-law cited before me.
7. Out of the pleadings of the learned counsel for the parties the following two questions of law arise for determination by this Court:---
1. Whether the principle of res judicata is applicable in the present case?
2. Whether the present second appeal is maintainable since admittedly certified copy of the decree has not been filed along with the memo of appeal and was subsequently filed after expiry of the period of limitation for filing of this appeal?
8. So far as the first question is concerned, the learned trial Court, while dilating on the issue of applicability of res judicata, has observed that no doubt previously suits were filed by the respondents against the appellants but they were either patched up between the parties or were disposed of on account of non-appearance of the respondents/plaintiffs. Therefore, the learned trial Court held that the principle of res judicata is not applicable to the present case. This view of the trial Court was subsequently upheld by the appellate Court. A perusal of the judgment of the learned trial Court as well as learned Appellate Court shows that the two Courts below have dilated the issue in an exhaustive and erudite manner by not only discussing the various judgments cited by the learned counsel for the parties but also be discussing the law in this regard.
9. Before me also, the learned counsel for the appellants has reiterated his previous submissions and has in this regard relied upon a few judgments. The principle of res judicata, in my opinion, debars any 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 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. In the said principle it has also been made clear that the issue subsequently raised should have been heard and finally decided by such Court between the same parties. The only point which requires consideration whether the issue subsequently raised between the parties was the same and whether the same was heard and finally decided by the Court. The specific words used in the definition of the term "res judicata" is the word "and" and not "or", meaning thereby that the issue which was subsequently, raised should also be heard and should also be finally decided by such Court. In my view, if any of such conditions is not fulfilled the principle of res judicata would not apply. Moreover, if the issue has been raised and has been heard and not finally decided even in such case principle of res judicata would not apply.
10. Now, coming to the facts of the present case, it is seen from the record that previously Suit No,306 of 1985 (Exh.D/7) at page 381 of the R&Ps) was filed by predecessor-in-interest of the respondents against the predecessor-in-interest of the appellants for possession and mesne profit. This suit was dismissed vide order 3-1-1990 for non-prosecution. Similarly, Suit No,580 of 1988 (old No,306 of 1985) was withdrawn on 7-1-1992 (page 277 of the file). Suit No,1023 of 2003 was filed by the respondent No,1 against the appellants for restraining them from raising any construction/alteration work in the suit property and this case was disposed of on the basis of a compromise reached between the parties to the effect that "the defendant shall not make any repair in the disputed property without consent of the plaintiff..." (Exh. D/5 page 265 of the R&Ps). It has also been observed that Suit No,580 of 1988 was withdrawn when the predecessor-in-interest of the appellants agreed to vacate the portion of the suit property under his occupation within 10 years, however, the predecessor-in-interest of the appellants expired on 16-9-1996 and the his legal heirs did not fulfil his promise. However, since there is nothing on record in writing, therefore, this aspect of the case cannot be taken into consideration. Thus, it cannot be said that any of the above suits was decided on merits so far as possession of the suit property is concerned. There is also another aspect of the case. If the respondents were challenging the ownership of the appellants over the suit property and were regularly filing suits, nothing prevented the appellants from filing a suit to assert their right once and for all. However, for the last many years they have kept silent and are only defending the suits filed by the predecessor-in-interest of the respondents or the respondents.
11. While coming to the conclusion, it is seen that the trial Court has discussed the issue threadbare and has also discussed the judgments cited before it. The Appellate Court in an impeccable manner discussed the issue and, thereafter, dismissed the appeal. So far as the issue raised in Suit No,1023 of 2003 is concerned, wherein it was conferred that certain additions and alternations were being made in the suit property and the same was disposed of on the above undertaking of the appellants, the trial Court, in my opinion, has rightly observed as under:--- "It would be pertinent to mention here that if plaintiffs had no cause of action and/or had no lawful title, [then] why the defendant No,1 gave his undertaking to the effect that he would not make any addition and alteration and construction in the suit property without prior permission of the plaintiffs in Suit No,1023 of 2003 (Exh.D/5). The Exh D/5 clearly establishes that defendants acknowledged and admitted the plaintiffs as lawful owners of the suit property hence such undertaking was given before the Court vide Exh.D/5 and as such the defendant has no right to deny the title of the plaintiffs at subsequent stage."
12. I fully agree with the observations of the trial Court quoted above that when the appellants had admitted that no addition/alteration would be made in the suit property without the consent of the respondents, impliedly means that the suit property belongs to the respondents, otherwise, any person owning a property is fully authorized to make any alteration/addition in his property as is admissible under the law.
13. It was held by the Hon'ble Supreme Court of Pakistan in the decision reported as Hafiz Noor Muhammad and others v. Ghulam Rasul and others (1999 SCMR 705) as under:- "The invocation of doctrine of res judicata is also misplaced. The Court in order to apply the bar of res judicata must first determine, whether the issue was raised, determined and decided in the former proceedings between the parties. There being no indication that the question in regard to the use of the said property had been conclusively determined by the Settlement Authorities or the High Court in the earlier litigation, the said contention has no force."
14. The respondents filed Suit No, 533 of 2004 and for the first time question of possession, mesne profit and damages was decided by a court of competent jurisdiction vide judgment and decree dated 23-8-2008 passed in the said suit. Thus, the principle of res judicata is not applicable to the present case at all as the question of possession was never decided on merits at any time prior to 23-8-2008.
15. The case-law cited by the learned counsel for the appellants is distinguishable on facts.
16. It is also seen that when, after the death of the predecessor-in interest of the respondents expired, the respondents instituted proceedings to obtain Letters of Administration in respect of the suit property at no point of time the appellants approached the concerned Court for filing their objections that the suit property belongs to them. This also belied their claim that they are the owners of the suit property.
17. Hence, in view Of what has been stated above, the main controversy with regard to the possession of the suit property was never decided between the parties, therefore, it could not be said that the principle of res judicata is applicable to the present case. This issue is, therefore, decided against the appellant and in favour of the respondents.
18. On technical ground also this appeal is not maintainable. It was argued by the learned counsel for the respondents that the appeal is not maintainable as copy of the decree of the appellate Court has not been filed with the memo of appeal. In this regard reference may be made to Order XLI, rule 1, C.P.C. Which provides, as to in what form an appeal has to be filed, which reads as under:--- "Form of appeal. What to accompany memorandum.---(I) Every appeal shall be preferred in the form of a memorandum signed by the appellant or his pleader and presented to the Court or to such officer as it appoints in this behalf. The memorandum shall be accompanied by a copy of the decree appealed from and (unless the Appellate Court dispenses therewith) of the judgment on which it is founded."
19. Thus, though the appellate Court is empowered to dispense withal the filing of the judgment but it is mandatory that a copy of the judgment is filed with the memorandum of the appeal. In view of the above, I am, of the considered opinion that non-filing of the copy of the decree appealed from with the memorandum of appeal, or during the period of limitation, was fatal and would render the appeal non-maintainable.
20. The counsel for the respondents has placed reliance upon a decision given by a Division Bench of this Court in the case of Abdul Rashid mentioned supra (authored by me) wherein it was held that "non filing of certified copy of the decree would be fatal if the same is not filed within the period of limitation. "
21. In view of the above discussion, I am of the considered opinion, that both on merits and on technicalities, this appeal is not maintainable and is accordingly dismissed along with the pending application.