MALIK MANZOOR HUSSAIN, J.- This revision petition is directed against the order dated 19-5-2011 passed by the learned Additional District Judge/Izafi Zila Qazi, Dir (Lower) at Samar Bagh, whereby appeal filed by respondents was allowed and order dated 10-2-2011 passed by the learned trial Court was set aside.
2. Briefly stated the facts giving rise to the instant petition are that petitioners filed a suit for declaration, permanent injunction and possession of the suit property fully described in the heading of the plaint. The suit was contested by the respondents through filing written statement and they also filed an application under Order 7 Rule 11 of C.P.C for rejection of plaint. The application was resisted by the petitioners and through order dated 10-2-2011; the application filed by the respondents was dismissed. Feeling dissatisfied, the respondents filed an appeal, which was allowed by the learned appellate Court through impugned order dated 19-5-2011. Being aggrieved, the petitioners have preferred this revision petition.
3. Learned counsel for petitioners contended that impugned order passed by the learned lower appellate Court was not in accordance with law, as it was yet to be determined that whether the suit property, parties, and the subject-matter was the same as that alleged by the respondents in their application as well as in their written statement. It was further argued that local commissioner was appointed and he was given power to determine the fact that the suit property was the same or was the subject-matter of previous litigation and this was not warranted under the law. Lastly concluded with force that law favours adjudication of cases on merits and in cases where recording of evidence was required the same could not be curtailed at initial stage.
4. Conversely, the learned counsel for respondents contended that specific plea with regard to possession in respect of property in dispute had raised in written statement as well as an application filed for rejection of plaint. It was further contended that object of provisions of Order 7 Rule 11 C.P.C was that the Court must put to an end the litigation at the very initial stage when on account of some legal impediments full-fledged trial was a futile exercise. In this regard, he placed reliance on the case of "Noor Din & another VS Additional District judge, Lahore" (2014 SCM R 513).
5. Arguments of learned counsel for the parties heard and record perused with their able assistance.
6. A perusal of the record reveals that a decree was passed in favour of predecessor-in-interest of respondents in the year 1965 with regard to suit property through judgment dated 23-8-1965.
Thereafter, with regard to same property another suit was filed against predecessor of respondents, which was dismissed through judgment dated 7-01-1992. Similarly, a criminal case was registered by respondent No. 1 through FIR No. 997 dated 28-8-2009 under sections 427/149/150/34 PPC and compromise took place due to intervention of elders of the area on 5-12- 2009 in the said case, wherein the rights of ownership and possession of the respondents were admitted. The petitioners were well within knowledge of all the decisions taken and compromise effected with regard suit property. They never challenged the judgment passed in favour of respondents so far.
7. It is well settled by now that for setting aside judgment and decree specific provision of Section 12
(2) was inserted in Civil Procedure Code barring a fresh suit to challenge the same. The petitioners never ever challenged the judgment passed way-back in the year 1965 or judgment passed in the year 1991; rather they have brought a suit for declaration and permanent injunction with possession.
8. Right of res Judicata, was founded at ancient precedent on the basis of wisdom, it is for all time to come in the interest of the public at large that finality would be attached to the decision pronounced by the Court of competent jurisdiction. Wisdom behind insertion of Section 11 C.P.C was that it would be in the public interest that individual should not be vexed twice. The decision pronounced by a Court of competent jurisdiction is pending between the parties or their successors unless the same is reversed or annulled by adopting a procedure prescribed by statutes. The wording of Section 11 C.P.C is very clear, which includes the matter directly and substantially in issue in the subsequent suit had been directly and substantially in issue in between the same parties or between parties under whom they or any of them claim, with the exception that Court trying the former suit had been a Court competent jurisdiction to try subsequent suit.
2. Briefly stated the facts of the case are that respondent/complainant filed a complaint under sections 3, 4 & 5 of the Illegal Dispossession Act, 2005 against the accused/petitioners herein before the Court of Sessions Judge/ Zila Qazi, Buner. An application for restoration of possession was also filed, which was resisted by the petitioners. After hearing the arguments, the learned Sessions Judge vide the impugned order dated 12-9-2014 accepted the application of the respondent/complainant and petitioners were directed to hand over possession of the disputed property to the complainant. Being aggrieved, the petitioners have assailed the impugned order through the instant constitutional petition.
3. Learned counsel for petitioners contended that the learned trial Court has totally ignored vital aspect of the case to the effect that the question of ownership of property bearing khasra No. 3952 was arose between the parties, even before filing of complaint by the respondent, under Illegal Dispossession Act, which culminated into civil litigation, wherein status quo has already been granted, therefore, the judgment of respondent No. 2 was without jurisdiction and nullity in the eye of law, as question of title squarely lies within the ambit of civil Court and in presence of civil suit no complaint lies.
4. Conversely, learned counsel appearing on behalf of respondent vehemently controverted the arguments of learned counsel for petitioners and contended that the impugned order, being an interlocutory order and not a final order, could not be challenged under the writ jurisdiction of this Court. He supported the impugned order and with great vehemence argued that present petition is not maintainable.
5. Arguments of learned counsel for the parties heard and available record perused with their able assistance.
6. A perusal of the record reveals that respondent filed a complaint Under Sections 3, 4 & 5 of the Illegal Dispossession Act, 2005, against the petitioners on 27-2-2014 with regard to suit khasra No. 3952. The learned Sessions Judge while entertaining the same has passed an interim relief order with regard to restoration of possession on 12-9-2014. Perusal of the record further reveals that there are civil litigation pending between the parties, much before filing of the complaint and civil suit bearing No. 112/1 of 2008 & 138/1 with regard to suit khasra numbers were previously decided between the parties. There is also no denial of the fact that in appeal No. 81/13 of 2013 filed against the judgment dated 20-2-2013, the same learned Judge, passed interim relief order with regard to possession of the suit property on 8-7-2014, much before impugned order dated 12-9-2014.
7. It is by now well settled, that an application for restoration of possession or complaint under Illegal Dispossession Act, 2005 can only be entertained when before filing of application/complaint, there was no civil litigation pending between the parties or with regard to possession there is no order of civil Court in the field. Reliance can be placed on the case of "Mumtaz Hussain VS Dir Nisar Khan & others" (2010 SCM R 1254). In the case in hand, with regard to possession of the disputed property a restraint order with regard to regulation of possession was passed by the learned District Judge on 8-7-2014 and after about two months of passing of this order, which was very much alive, the impugned order for restoration of possession was passed on 12-9-2014 by the same learned District Judge. Once the possession of suit property was regulated by civil Court, no complaint was entertainable under Illagal Dispossession Act, 2005, what to talk of an order for restoration for possession to a complainant.
8. As question of title of property was already pending before competent civil Court before filing of the complaint and possession was regulated by an interim order , therefore, as per dicta of Supreme Court, neither the complaint under Act 2005 ibid was competent nor interim relief in the shape of restoration of possession could be granted. The Courts of law or Tribunals are However, after possession of civil suit in favour of respondent/complainant, he was entitled to approach the Court Under Section 4 of the Illegal Dispossession Act, 2005.
In view of what has been observed above, this writ petition is allowed and impugned order passed by the learned lower Court below is set aside.