' SHAH JEHAN KHAN AKHUNDZADA, J.---This revision petition has been directed against the judgment and decree dated 19-10-2006 of the learned Addl. District Judge-I, Peshawar whereby appeal preferred by the plaintiffs/petitioners against the judgment and decree dated 19-7-2006 of the learned Civil Judge-IV, Peshawar was dismissed.
2. Brief facts of the case are that the plaintiffs/petitioners filed Suit bearing No.421/1 on 11-5-2006 against the respondent.s/defendants for declaration to the effect that they are owners in possession of half of the suit property in respect of "SHAMARI' No.1367 details of which have been fully given in the heading of the plaint situated in Main Bazar Abraisham Garan, Chowk Yadgar Peshawar and the Agreement Deed dated 1-5-2006 executed in favour of defendants/respondents Nos.10 to 16 on behalf of the plaintiffs/petitioners is wrong and against facts and law and at alternative, the plaintiffs/petitioners also prayed for possession of the suit property through partition. In para-c of the plaint, they also prayed for permanent injunction to the effect that defendants Nos.8 and 9 generally and defendants Nos.10 to 16 particularly be restrained from making interference in the suit property on the basis of the aforesaid agreement deed.
3. The suit was contested by the contestant defendants/respondents by filing written statement.
During the pendency of the suit, defendants/respondents moved an application under Order VII, Rule 11, C.P.C. For dismissal of the suit on the ground of res judicata. The said application was resisted by plaintiffs/petitioners and after hearing the learned counsel for the parties, the learned Civil Judge vide his order dated 19-7-2006 by invoking the provision of Order VII, Rule 11, C.P.C.
Rejected the plaint.
4. Feeling aggrieved from the aforesaid judgment and decree of the learned trial Court, the plaintiffs/petitioners preferred an appeal which also met the same fate vide judgment and decree dated 19-10-2006, hence the present revision petition.
5. I have heard the learned counsel for the parties and have gone through the record of the case.
6. The stance of the defendants/ respondents is that earlier, the Civil suit bearing No.172/1 dated 26- 7-1995 was filed by one Abdul Jalil, the predecessor of plaintiffs/petitioners against Muhammad Yaqoob and Mst. Roshan Jehan, etc. Predecessors of (defendants Nos.1 to 8) seeking possession through partition of various segments of suit property including "SHAMARI" No.1367 which was subsequently withdrawn by the said Abdul Jalil on his own sweet will and to this effect his statement was recorded by the trial Court on 25-9-1996 and the case was disposed of accordingly. Now, the plaintiffs/petitioners have filed the instant suit for the same relief as claimed in the earlier suit. Therefore, according to the defendants/respondents, the suit is hit by the principle of res judicata and Order II, Rule 2, C.P.C.
7. On the other hand, the stance of the plaintiffs/petitioners is that the previous suit filed by their predecessor-in-interest was in respect of a. Part of the whole joint property and the same was not decided on merits, therefore, the instant suit could not be dismissed without recording evidence.
Thus, both the courts below have misinterpreted the provision of section 17 and Order VII, Rule 11, C.P.C. By dismissing the suit of the plaintiffs/ petitioners summerarily.
8. After hearing the arguments of learned counsel for the parties and going through the record, I find that trial Court has not provided opportunity of producing pro and contra evidence to the parties for establishing their claims for resolving the controversy/matter in issue. This non-provision of opportunity to produce evidence of their choice to both the parties is evident by perusing the impugned judgments and decrees and as such I am of the considered view that both the learned courts have passed these impugned judgments and decrees in a slipshod manner which are not at all sustainable in the eye of law but are liable to be set aside forthwith. Hence, the revision petition is accepted, the impugned judgments and decrees of both the courts below are set aside and the case is remanded back to the trial Court (Civil Judge-IV, Peshawar) with the direction to record pro and contra evidence of both the parties in respect of the point of res judicata as well as the controversy involved in the case and thereafter decide the said application on merits strictly in accordance with law. The learned trial Court is directed to issue notices to the parties for appearance before it after the receipt of the case file. Office is also directed to send the record of the case to the quarter concerned forthwith.