' SHAHNAWAZ TARIQ, J.---Through the captioned II civil appeal, appellant Abdul Rasheed S/o Abdul Aziz has impugned the judgment dated 01.11.2010, and decree dated 08.011.2010, respectively passed by the learned 1st Additional District Judge, Karachi East, in civil appeal No.255 of 2009, whereby the appeal filed by the appellant was dismissed.
2. The appellant has sought following relief:- "It is prayed that this Hon'ble Court would graciously be pleased to set-aside the judgment dated 01.11.2010, and decree dated 08.11.2010, passed by the learned 1st Additional District Judge, Karachi East, and grant any other relief which may this Court deem fit and proper."
3. The relevant facts depicted in instant appeal are that the appellant filed a civil suit No.35 of 2009, for possession, mesne profits and permanent injunction against the respondent claiming himself to be the absolute owner of quarter No.13/9, Block-D-1, measuring 80 sq. Yards, situated at Malir Extension Colony, Karachi, vide transfer/ mutation letter No.AED/ MTSKDA/D-1-13/9/86/301, dated 06.06.1986, which was subsequently leased out in his favour vide lease bearing registration No.963, book No.1, dated 11.04.1996, M.F. Roll No. 2182, dated 06.05.1996, before the concerned Sub-Registrar.
4. It is further averred that the appellant paid all the government charges and also got installed Gas and Telephone connections in his name. The appellant obtained a loan of Rs.2,00,000/- from H.B.F.C. And the original documents of property in question were mortgaged. The appellant carried out repairing work in the subject quarter from his own resources. The appellant took over the physical possession of the said quater and allowed his old aged and ailing parents along with other poor brothers, to reside in the said quarter, but after sometime the brothers of the appellant left the said quarter, shifting in to their separate houses. The respondent is the real younger brother of the appellant and was allowed to live with him out of love and affection, but the respondent started claiming himself as the owner of 50% share of the quarter in question being the legal heir of their father and constructed a separate new wall on the plot of the quarter in question.
5. It is further stated that the appellant filed a civil suit No.585 of 2000, for declaration, possession and permanent injunction in the Court of learned IV Senior Civil Judge, Karachi East, which was dismissed for non-prosecution before framing of issues and recording the evidence of the parties.
The restoration application under Order IX Rule 9 C.P.C. Was also dismissed as time barred due to negligence and misconduct of the counsel for the appellant. Thereafter, the respondent also filed a civil suit No.532/2002 for declaration, cancellation and permanent injunction, which was dismissed by the learned IV Senior Civil Judge, Karachi East. The respondent preferred civil appeal bearing No.66 of 2006, which was also dismissed by the learned 1st Additional District Judge, Karachi East.
After dismissal of suit No.532 of 2002, filed by the respondent, the appellant filed another civil suit No.35 of 2009, for possession and mesne profit against the respondent before the court of IV Senior Civil Judge, Karachi East, but the same was dismissed vide Judgment dated 17.11.2009. The appellant preferred civil appeal bearing No.255 of 2009, nevertheless, the same was dismissed by the Court of learned 1st Additional District Judge, Karachi East, vide impugned judgment dated 08.11.2010.
6. Mr. Amir Saleem, learned counsel for the appellant submitted that the appellant is the exclusive owner of the quarter in question by way of registered title documents in his name, which have not been declared void or cancelled by any Court, but the said vital fact has not been discussed by the trial Court as well as the appellate Court. He contended that the concurrent decisions passed by the Courts below are devoid of merits and contrary to the settled law. He further contended that appellant being elder brother had permitted and facilitated the respondent being the younger brother to reside therein for the time being as such his second suit would not fall within the purview of Order IX Rule 9, C.P.C. And the impugned judgment is liable to be set-aside.
7. The respondent was served through notice at the first instance but he did not turn up, therefore, notice was repeated which was received by his wife. As sheer indulgence, notices were issued through all modes including publication but the respondent did not come forward to resist the claims raised by the appellant in instant appeal.
8. Perusal of the available record and consideration of the arguments advanced by the learned counsel for the appellant reflect that the appellant is owner of the subject quarter by way of registered lease deed, and permitted the respondent to reside in the said quarter out of love and affection being the younger brother but after sometime he claimed 50% share and constructed a wall on the plot of the said quarter. The appellant filed a civil suit No.585 of 2000, against the respondent before the Court of learned IV Senior Civil Judge, Karachi East, which was dismissed for non-prosecution and the restoration application filed under Order IX Rule 9, C.P.C. Was also dismissed being time barred. Thereafter, the respondent also filed a civil suit No.532 of 2002, against the appellant which was dismissed by the learned IV Senior Civil Judge, Karachi East. The respondent preferred civil appeal bearing No.66 of 2006, but the same was also dismissed by the learned 1st Additional District Judge, Karachi East.
9. It is also essential to mention that the appellant did not challenge the dismissal order of restoration application by preferring civil appeal under Order XLIII Rule 1, C.P.C. After about 8 years, the appellant filed another civil suit No.35 of 2009, for possession and mesne profits against the respondent which was dismissed being barred by Order IX Rule 9, C.P.C. And civil appeal filed by the appellant was also declined.
10. Adverting to the merits of instant appeal, the main point raised by the appellant that his second civil suit No.35 of 2009, is not barred by the provisions of Order IX Rule 9, C.P.C., is concerned, it would be appropriate to examine the judgments passed by both the Courts below.
11. The operative part of the judgment dated 17.11.2009, passed by the learned trial Court is reproduced as follows:-- Therefore, where a suit is dismissed under Rule 8, the plaintiff shall be precluded from filing a fresh suit. The plaintiff had himself availed the remedy available under Order IX Rule 9, C.P.C. By filing application for recalling the order dated 17.02.2001. After the dismissal of application under Order IX Rule 9, C.P.C., plaintiff is barred to bring fresh suit in respect of the property. Plaintiff's contention in para 14 of plaint that cause of action had again accrued on 30.04.2007, when defendant's Suit No.532 of 2002, was dismissed, is devoid of merits. Plaintiff's cause of action was independent and he had filed suit.No.585 of 2002, and after the dismissal of application under Order IX Rule 9 ,C.P.C., the same cannot be agitated in the new suit. Plaintiff has also remained silent that why he has not come to the Court from 2001 to 2008."
12. The operative part of the judgment dated 01.11.2010, passed by the learned appellate Court is reproduced as follows:-- The earlier suit of the plaintiff was dismissed for non-prosecution. He filed an application under Order IX Rule 9, C.P.C. Which was too dismissed. The plaintiff has not filed any appeal or revision against the dismissal of his application and has once again filed this fresh suit. The remedy provided by the law for further challenging an order of the dismissal of the application under Order IX Rule 9, C.P.C. Has been provided under Order XLIII Rule 1 clause(c) C.P.C. The plaintiff has not filed any such appeal provided by the law, thus has not availed the legal remedy. The order of the learned trial Court shows that the plaintiff has remained silent from 2001 up to 2008 and has slept over his rights for a long period. The order of the dismissal of the application under Order IX Rule 9, C.P.C. Cannot be challenged through a separate suit and a fresh suit would be incompetent in view of the provisions of Order IX Rule 9, C .P.0 . "
13. At this juncture, I would like to discuss the case relied upon by the learned counsel for the appellant:-
(i) In the case of Habib-ur-Rahman v. Abdul Rahman and 3 others, 1987 CLC 195, it was observed that a suit for partition was never hit by doctrine of res judicata or even by limitation as it was a continuing cause of action and any shareholder whether a minor or even an adult, whose right had not been adjudicated earlier, could file a suit for partition.
(ii) In the case of Numma Khan and others v. Mahmud Khan and others, 1973 SCMR 289, the Hon'ble Supreme Court has observed that a fresh cause of action would, accrue to the plaintiffs every time when their right of ownership was denied or repudiated.
(iii) In the case of the Muhammad Sharif and others v. Muhammad Hanif and others, 2010 CLC 830, it was held that earlier suit having been dismissed for failure to file the amended plaint, besides no issue was framed, and suit was not dismissed on merits. Principle of res judicata was applicable only if the matter had been adjudicated upon finally on merits. Dismissal order under O. XVII, R.3, C.P.C, did not operate as res judicata. Impugned order of Appellate Court was set aside and matter was sent back to Trial Court with direction to allow time to the plaintiff to filing the amended plaint.
(iv) In the case of Mobin Rafique and another v. Rashid Ahmed and 2 others, PLD 2012 Sindh 449, it was held that dismissal of application or suit or any other litigation or proceedings for default or for non-prosecution cannot operate as res-judicata and it is for such reason that fresh suit/application has been held to be competent in case where earlier matter was dismissed for non-prosecution or default and not disposed of on merits. Principle and question of res judicata applies only if previous lis/ application or proceedings were disposed of or decided on merits and which had directly or substantially decided controversy between the parties.
(v) In case of Muhammad Chuttal v. Atta Muhammad through L.Rs, 2007 SCMR 373, the Hon'ble Supreme Court has observed that where cause of action was either distinct or recurring, then dismissal of first suit would not affect second suit. Plaintiff in fresh suit had pleaded that cause of action was recurring, which was a mixed question of law and fact liable to be decided on basis of evidence of parties.
' The above referred case law are relevant and fully applicable on the facts and circumstances of instant appeal.
14. For the appropriate conclusion, I would like to examine the reliefs sought by the appellant in both suits referred above. The appellant filed civil suit No.585 of 2000, against the respondent above named, Managing Director KDA (Civic Centre) and Asstt. Director KDA (Malir Extension), for declaration, possession and permanent injunction and suit was valued for Rs.1,00,000/-. The appellant sought following reliefs against the respondents:-
(i) Declaration to the effect that the plaintiff is the lawful owner of suit plot No.D-1-13/ 9, measuring 80 square yards situated at Block No. B-1, Malir Extension Colony, Karachi East, in light of Transfer order and Lease Deed.
(ii) To order the defendant No.1 to immediately vacate the fifty percent of the suit plot of plaintiff and to handover peaceful physical possession of the same to the plaintiff without. Any delay.
(iii) To permanently restrain the defendant No.] from encroaching/ grabbing the said fifty percent of the said plot and/or to raise any construction thereon till disposal of the suit.
(iv) To permanently restrain the defendants No.2 and No.3 from transferring/ mutating the suit plot in the name of any person except the plaintiff.
(v) Ad-interim injunction is solicited for accordingly.
(vi) Cost of the suit.
15. The appellant filed civil suit No.35 of 2009, against the respondent only for possession and mesne profit and valued the suit for Rs.2,00,000/-; The appellant sought following reliefs against the respondent:- "(a) To direct the defendant to vacate the peaceful and physical possession of the 50% of thereabout of plot/ quarter No.13/9, Block D-P, measuring 80 square yards situated at Malir Extention Colony Karachi, which comes to 40 square yards and handover the portion of the above said quarter in his possession to the plaintiff.
(b) To direct the defendant to pay mesne profit at the rate of Rs.3000/- per month for the last three years which comes to Rs. 1,08000/- and the defendant may be further directed to pay the mesne profit at the same rate of Rs.3000/ - per month for future up to handing over of peaceful and vacant physical possession of the said portion to the plaintiff"
16.From the bare reading of the title, valuation and prayer clauses of both the plaints filed by the appellant reflect that suit No.585 of 2000, was filed against the respondent and two different offices of KDA, seeking various reliefs, while suit No.35 of 2009, was filed against the respondent only. It is essential to mention that appellant in both the above suits impleaded different parties as defendants and same were differently valued and even the reliefs claimed were also quite different. Consequently, the appellant could not be precluded from filing second suit as whenever his right of ownership would be denied, repudiated and resisted, he would have a fresh cause of action to sue and it would not be contrary to the scheme of Order IX Rule 9, C.P.C. The appellant being bona fide owner of the subject quarter could not be deprived of his lawful rights on mere legal technicalities and the respondent being a licensee has no locus standi or vested right in the quarter in question. Appellant would be seriously prejudiced if matter will not be decided on merits.
It is well settled that the paramount consideration for a Court of law is to do justice between the parties and in the absence of any express bar, merely on technical grounds, Court should not hesitate to grant proper relief. (Reliance is place on PLD 1959 Karachi 395).
17. From further perusal of the material, it has transpired that the appellant permitted the respondent to reside in the subject quarter as his younger brother without any payment of monthly rent. Admittedly, the respondent has no registered title or ownership document in his own name regarding the quarter in question and he is enjoying possession over the half portion of the said quarter with the consent and permission of the appellant without any consideration. The said permission of the appellant designates the-status of the respondent as a licensee which is defined in section 52 Easements Act, 1882. License is a valid right which is created by according permission or conferment of authority by an owner or any person authorized by him to grant such permission, to any person or group of persons to enjoy, use or avail the facility with a specific right or benefit for a specified period or continuous usage in or upon the immovable property. It does not have a proprietary status. License is subject to the will, wish and want of the grantor which can be revoked at any time by the licensor by issuing a notice of the revocation. License is a mere permission by the grantor with regard to the immoveable property and after revocation of such permission, the continuation of such right of the licensee will become illegal and wrongful.
18. The objection raised by the appellant for grant of mesne profit is concerned, it has spelt out from the discussion made supra that the appellant out of love and affection permitted the respondent being his younger brother to reside in the quarter in question as his licensee, therefore, the appellant could not claim the mesne profit in lieu of occupation of the half portion of the subject quarter. It is well settled that law recognizes four kinds of possession:-
(a) by way of the registered title of ownership,
(b) as tenant under the tenancy agreement,
(c) as licensee with the permission and consent of the licensor and
(d) illegal possession.
19. The respondent has been occupying the possession as licensee of the appellant as such he could not file any proceedings for recovery of mesne profits. The proper procedure for the appellant was to revoke the license of the respondent by issuing notice and to institute the suit for declaration of the status of the occupant/respondent as licensee and recovery of the possession of half portion of the quarter in question from the licensee.
20. From the detailed discussion made supra supported with relevant case law, it has transpired that admittedly the appellant is owner of the quarter in question on the strength of registered lease and the respondent is his licensee. The appellant by filing his earlier suit No.585 of 2000, for ejectment of the respondent being the licensee prima facie established that the appellant had revoked the license of the respondent. The earlier suit No.585 of 2000, was dismissed for non- prosecution and restoration application under Order IX Rule 9, C.P.C. Was dismissed being time barred. The appellant again filed another suit No.35 of 2009, which was dismissed by the learned trial Court holding that after dismissal of restoration application under Order IX Rule 9, C.P.C., appellant has no cause of action to file second suit and the learned appellate Court maintained the judgment of the trial Court and dismissed civil appeal filed by the appellant. I am of the considered view that both the Courts below seriously erred and on wrong presumptions dismissed the second suit No.35 of 2009, filed by the appellant.
21. Consequently, the concurrent findings of both the Courts below are suffering from illegality and material irregularity, hence are set-aside and case is remanded to the learned trial Court to decide the same purely on merits after affording the opportunity of leading the evidence to the parties in accordance with law. The appellant may amend the plaint in view of the above findings.
Accordingly, the instant II civil appeal stands disposed of. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.