' ARSHAD MAHMOOD TABASSUM, J.---Briefly, the facts are that the petitioners filed a suit for mandatory injunction to the effect that the agricultural land, situated in Khasra No,212, measuring 4-Kanals and 8-Marlas, situated in village Sahuki Mallian, Tehsil and District Sheikhupura, be declared to be his property and the acquisition of this land in favour of WAPDA be declared illegal.
The suit was contested - by the respondents and the learned Civil Judge framed the following issues:-
(1) Whether the land in question was never utilized by the defendants for setting up P.C. Pole Plant?
If the plaintiffs are entitled to a decree as prayed for? OPP
(2) Whether the matter in issue has already been decided by the Civil Court as well as Hon'ble Ombudsman? OPD
(3) Whether the plaintiffs had no cause of action? OPD
(4) Whether the suit is barred by time? OPD
(5) Whether the suit is incorrectly valued for the purpose of court fee and jurisdiction? If so what is its correct valuation? OPD/OPPS.
(6) Relief.
2., The petitioner produced "PW-1 Fazal Ahmad, who owned the adjacent land. The petitioner No,2 himself and Mansoor Ahmad, appointed as Local Commission by the court also appeared. The respondents produced Syed Abid Hussain, SDO and parties led their respective documentary evidence also.
3. The learned Civil Judge vide his judgment and decree dated 6-5-2005, decided' issues Nos.1 and 2 against the petitioner while all other issues were decided against the respondents and in view of the findings on issues Nos.1 and 2, the suit was dismissed.
4. The petitioner assailed the said judgment and decree of the learned trial court through an appeal. The learned Additional District Judge vide order dated 2-7-2005, dismissed the appeal. The appellate court did not interfere with the findings of the trial court on issue. No,5, but set aside the findings on all other issues.
5. It is in this background that the petitioners have assailed the judgment of the learned Additional District Judge dated 2-7-2005, through the instant petition under section 115, C.P.C.
6. Learned counsel for the petitioners has argued that both the courts below have misread and misconstrued the evidence available on record and thereby arrived at a wrong conclusion; that the land which had been acquired by the respondents for the purpose was not utilized for that purpose, hence was liable to be returned to the petitioners; that earlier suit filed by the petitioners was dismissed due to non-prosecution and non-production of evidence which could not operate as res judicata in view of the law laid down in the case titled "Haft Noor Muhammad and others v.
Ghulam Rasul and others" (1999 SCMR 705) and "Mobin Rafique and another v. Rashid Ahmad and 2 others" ( PLD 2012 Sindh 449).
7. Conversely, learned counsel for the respondents has fully supported the impugned judgment while relying upon the law laid down in the case titled "Shahid Hussain v. Lahore Municipal Corporation" (PLD 1981 SC 474).
8. I have heard learned counsel for the parties and have myself gone through, the documents annexed with this petition with their able assistance.
9. As regards issue No,1, there is no denial of the fact that on acquisition of the suit land, the respondent had become its .Absolute owner and could utilize the same according to its requirements. It was for the respondents either to put the land in question to auction or as a matter of grace restore the same to its previous owner. So has been held in the case titled "Province of Punjab through Collector, Lahore and another v. Saeed Ahmad and 4 others" (PLD 1993 SC 455).
However, the respondents could not be compelled to restore the land to its previous owner i,e, the petitioners. In this regard, the learned first appellate court has' discussed the issue at a considerable length and rightly concluded that the learned trial court had correctly decided the said issue 'in favour of the respondents.
10. With regard to issue No,2, there is no denial of the fact that earlier suit filed by the predecessor- in-interest of the petitioners was dismissed on 22-2-1988, for non-prosecution and non-production of evidence. Meaning thereby that the said suit was dismissed by the learned trial court while invoking the provisions of Order XVII, Rule 3, C.P.C. A decision under the said provisions of law operates as res judicata. So has been held by the apex Court in the case titled "Shahid Hussain v.
Lahore Municipal Corporation" (PLD 1981 SC 474). Relevant portion whereof reads as under:-- "It is clear from the wording of the said, rule that on the failure of a party to produce its evidence or to do any other act necessary for" the purpose of the case, for which time had been allowed to him, the Court shall proceed to decide the suit' forthwith. As such an order dismissing, the suit under Order XVII, Rule 3, C.P.C. Would be deemed to be a judgment on merits, unlike an order under Rule 2 of the said Order. Reference may be made to Rahim Bux and 2 others v. Mst. Nazir Khanum and another (1) and Nila v. F'unun (2). This would, therefore, operate as res judicata between the parties barring the maintainability of the second suit on the same issue, Har Dayal v. Ram Golam (3). As held by Shadi Lal, C.J., in Lal Chand v. Kaka Ram (4) remedy against such an order would be an appeal against the, decree. This view is clearly supported by the language of Rule 3, of Order XVII read with the definition of 'Decree' in section 2(2), C.P.C. Under Order XVII, Rule 3, C.P.C. The court is required on the failure of the party to do the needful, to proceed to decide the suit forthwith. As such, the decision is obviously an adjudication in which the court conclusively determines the rights of the parties with regard to matters in controversy in the suit between the parties and that is why it has been held to operate as res judicata between them, barring any other suit relating to the same controversy."
11. Learned counsel for the petitioners while relying upon the case titled "Hafiz Noor Muhammad and others v. Ghulam Rasul and others" (1999 SCMR 705) has tried to ague that in order to attract the provisions of section 11, C.P.C., it is must that the issue raised in the earlier suit' must have been determined and decided between the parties. There is no cavil with the proposition canvassed by the learned counsel for the petitioners. However, as held in the case of Shahid Hussain supra, any order dismissing the suit under Order XVII Rule 3, C.P.C., would be deemed to be a judgment on merits, unlike an order under rule 2 of the said order and such decision is an adjudication in which court conclusively determines the rights of the parties with regard to matters in controversy in the suit between the parties, hence it operates as res judicata between them barring any other suit relating to the same controversy. Both the courts below have, therefore, rightly decided issue No,2 against the petitioners.
12. Concerning issue No, 3, it is observed that since the lis between the parties stood decided in the previous suit, hence the petitioner was left with no cause of action to maintain a. Subsequent suit.
13. In the light of above discussion, no illegality or irregularity has been detected in the impugned judgment and decree passed by the learned first appellate Court. Same is, therefore, upheld.
Resultantly, this petition fails and the same is hereby dismissed with no order as to costs.