1. AMIN-UD-DIN KHAN, J. Through this single judgment I intend to decide the above captioned civil revision as well as Civil Revision No.1581 of 2007, as the judgment impugned in both the civil revisions is the same.
2. 2.The brief facts are that the plaintiffs/respondents Nos.2 and 3 on 10.02.2004 filed a suit for declaration, mandatory and permanent injunction. In the written statement filed by defendants Nos.2 to 4 on 30.03.2004 the suit was contested as well as preliminary issues with regard to maintainability of the suit were raised. Subsequently on 07.06.2005 an application under Order VII, Rules 10 and 11 read with section 151 of the C.P.C. was moved by defendants Nos.6 to 14. The application was accepted by the learned Civil Judge 1st Class, Lahore vide order dated 20.09.2006 and the plaint of suit was rejected, against which the plaintiffs/respondents Nos.2 and 3 preferred an appeal which has been accepted vide judgment dated 19.07.2007 and order passed by the learned trial court rejecting the plaint was set aside and matter was sent back to the learned trial court to decide the suit after framing of issues and recording of evidence. Hence these civil revisions.
3. 3.Learned counsel for the petitioners argues that with regard to the same property first suit was filed in the year 1994, which was dismissed and an appeal was preferred, which also met with the same fate. A Civil Revision No.2146 of 1996 was filed, which was withdrawn on 22.03.2000. Thereafter Writ Petition No.62-R-2000 was filed, which was withdrawn on 04.11.2002 on the basis of compromise. Thereafter an application, C.M. No.1369 of 2003, under section 12(2) of the C.P.C. for setting aside the compromise was filed in the above said writ petition, which was dismissed on 21.10.2003. Thereafter the suit subject matter of the instant civil revision was filed and the petitioners/defendants rightly filed an application under Order VII Rules 10 and 11 of the C.P.C., which has been accepted by the learned trial court but the learned appellate court has set aside the findings of trial court. Learned counsel argues that there was a bar of jurisdiction of civil court in accordance with sections 22 and 25 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. Relies upon "1993 SCMR 2028 (Zafarul Hassan and others v. Muhammad Kalim and others), 2003 CLC 936 (Ghulam Muhammad and others v. Ali Asghar and others), 1988 SCMR 824 (Nazeer Ahmad and others v. Ghulam Mehdi and others), 1997 MLD 2408 (Qamar Zaman and others v. Ejazi Begum and others), 1981 SCMR 878 (Muhammad Akhtar and others v.
4. Abdul Hadi and others) and 1991 SCMR 1976 (Syed Abdul Hakim v. Muhammad Azam Khan and another)". Argues that it was a fit case for exercise of jurisdiction under Order VII, Rule 11 of the C.P.C.
5. Relies upon "1997 CLC 578 (Rashid Ahmad v. Federation of Pakistan and others), PLD 2006 Lahore 311 (Yacmeen Qureshi v. Tariq Qureshi and 2 others) and 2002 SCMR 338 (S.M. Shaft Ahmad Zaidi through Legal Heirs v. Malik Hassan Ali Khan (Moin) through Legal Heirs)". Further argues that under Order II, Rule 2 as well as section 11 of the C.P.C. second suit is barred. Relies upon "1998 SCMR 824 (Nazeer Ahmad and others v. Ghulam Mehdi and others), 1997 MLD 2408 (Qamar Zaman and others v. Ejazi Begum and others) and 1987 SCMR 1036 (Sh. Fazal-ur-Rehman v. Pakistan through The Secretaiy, Ministry of Works and Rehabilitation, Islamabad and others)." Argues that there is an order of cancellation of allotment and transfer in favour of plaintiffs/respondents in the year 1968 and in the year 1969 the suit property was allotted and permanently transferred in favour of predecessor of petitioners and the suit which has been filed in the year 2004 is clearly barred by time. Argues that in accordance with the alternate prayer made in the plaint the suit should have been for specific performance and suit for declaration was not competent. Learned counsel further argues that if the claim of plaintiffs was pending at the time of repeal of settlement laws in the year 1975, the claim could be agitated before the Notified Officer and if there was no pending claim, only the writ petition can be filed and the second suit is not competent. Lastly argues that if the court is not satisfied with the available record in the civil revision, the court can summon the record of settlement department with regard to the allotment in favour of plaintiffs/respondents and subsequent cancellation and thereafter the same property was allotted in favour of predecessor of petitioners. Prays for acceptance of the revision and setting aside the judgment passed by the learned appellate court.
4. Learned counsel for respondents Nos.5 to 13 states that he adopts the arguments of petitioners and he also prays for acceptance of the civil revision and further argues that if the case of plaintiffs that the matter was misrepresented during the hearing of writ petition before this court, then an application under section 12(2) of the C.P.C. will be competent and not the suit. Further argues that in accordance with Para 6 of the plaint that according to the compromise during, the hearing of writ petition mentioned supra if the alternate land is required, the suit for specific performance will be competent. Argues that the Order XXIII, Rule 1(iii) of the C.P.C. is a hurdle in the way of plaintiffs- respondents, when the civil revision which was the outcome of previous suit and Writ Petition No .62-R-2000 were unconditionally withdrawn.
5. Learned counsel for each of respondents Nos.2 and 3 has argued his case independent of stance of the other respondent, although they are joint plaintiffs in the suit. Learned counsel for respondent No.3 argues that the permanent transfer deed in favour of the plaintiffs was of 31.07.1965 and on the basis of said transfer deed mutation No.1791 was attested on 13.05.1966 and in the year 1994 Mst. Aziz Begum filed an application before the Collector for review of mutation No.1791, same was challenged through the first suit, which came up to this court through Civil Revision No.2146 of 1996, which was withdrawn on 22.03.2000, as the plaintiffs came to know in the year 2000 that their PTD was never cancelled by the department, therefore, an application was moved before the settlement department that PTD in favour of Mst. Aziz Begum be cancelled when the said application was not accepted by the department, therefore, Writ Petition No.62-R-2000 was filed and thereafter when the department filed the comments stating that the permanent transfer deed in favour of plaintiffs is intact and same has never been cancelled and the PTD claimed by Mst. Aziz Begum is bogus one and not available in the record of settlement department, therefore, the matter was settled and further the writ petition was withdrawn. Argues that only the dismissal on merits constitutes res judicata. Relies upon "PLD 1983 Supreme Court 344 (Ghulam Nabi and others v. Seth Muhammad Yaqub and others), PLD 1994 Supreme Court [AJK] 41 (Muhammad Subhan v. Muhammad Ibrahim and 28 others) and PLD 1980 Supreme Court 139 (Dr. M. A. Haseeb Khan and others v. Sikandar Shaheen and 9 others)". Further argues that when fraud was committed and the same came in the knowledge of plaintiffs, they have rightly filed the suit in hand. Relies upon "PLD 1969 Writ Petition (Karachi) 221 (Mst. Izat and another v. Kadir Bux) and PLD 1973 Lahore 652 (Hakim Abdur Rahim Khan and 3 others v. ISA)". Further that in case of fraud the bar of sections 22 and 25-of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 is not applicable. Relies upon "1974 SCMR 356 (Hamid Husain v. Government of West Pakistan and others), 1985 CLC 1411 (Jamal Bhai and 2 others v. Administrator, Evacuee Trust Property and 6 others) and 2010 SCMR 1097 (Lahore Development Authority v. Firdous Steel Mills (Pvt.) Ltd.)". In case of fraud the most salim proceedings must be set aside. States that the present suit has been filed on the basis of fresh cause of action.
6. Learned counsel for respondent No.2 argues that first suit was filed for declaration of their right and against the action of cancellation of their permanent transfer deed as well as the proceedings forcancellation of their mutation and at the time of revision when plaintiffs came to know that their PTD is intact and claim of the respondents is on the basis of forged PTD, therefore, they withdrew the civil revision in order to seek remedy before the appropriate forum, therefore, writ petition was filed and the same was compromised, therefore, states that the present suit is competent.
6. 7.Learned A.A.G. has referred the report filed by the department in Writ Petition No.62-R-2000, whereby it is stated that the PTD in favour of plaintiffs is genuine and still intact and was never cancelled by the department and the PTD claimed by Mst. Aziz Begum has not been verified by the department, therefore, it is forged one. Learned A.A.G. further states that the order passed by the learned appellate court is in accordance with law and suit should be decided on merits after thorough recording of evidence and consideration of law.
7. 8.After the completion of arguments of learned counsel for the respondents, learned counsel for the petitioners submitted that in order to appreciate the arguments of learned counsel for the parties it is necessary that record of settlement department be called.
8. 9.I have heard the learned counsel for the parties at full length and also gone through the record minutely with their able assistance.
9. 10.I am of the considered view that now the crux of arguments of learned counsel for the petitioners is that Order II Rule 2 of the C.P.C., section 11 of the C.P.C., Order XXIII Rule 1 of the C.P.C. and bar of jurisdiction contained under sections 22 and 25 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, are applicable and finally the suit for declaration was not competent, rather the suit for specific performance was competent. Therefore, I would like to deal with the matter point wise.
10. 11.As I have noted the detailed arguments advanced by the learned counsel for the parties and the crux of points raised before this court have been noted in the preceding para, which is Para No.10 of the instant judgment.
11. 12.First I take the point whether the suit subject matter of this civil revision was hit by the principle of res judicata, Order II, Rule 2 or Order XXIII, Rule 1 of the C.P.C. The objection of learned counsel for the petitioners with regard to Order XXIII, Rule 1 of the C.P.C. is on the basis of order dated 04.11.2002 whereby Writ Petition No.62-R-2000 filed by the respondents was withdrawn. In this regard the arguments of learned counsel for the petitioners are that in the writ petition the settlement department filed report and parawise comments, whereby it was stated that the permanent transfer deed in favour of writ petitioner was never cancelled by the settlement department and further as per the record of settlement department the transfer deed claimed by Mst. Aziz Begum has not been verified by the department. Meaning thereby, no record of issuance of permanent transfer deed in favour of Mst. Aziz Begum is available in the record of settlement department, therefore, the argument of learned counsel that thereafter the matter was settled between the parties and the writ petition was withdrawn unconditionally, actually the writ petition borne fruit when it came on the surface that the PTD claimed by the present petitioners was bogus one, therefore, there was no need to further seek a declaration from the court in the writ petition that PTD in favour of writ petitioner was genuine one and its cancellation was illegal and PTD issued in favour of Mst. Aziz Begum was bogus one because when the settlement department informed the writ petitioners that their PTD has never been cancelled by the department and there is no PTD with regard to the suit property in favour of Mst. Aziz Begum, therefore, no further adjudication was required and as such the matter was settled and writ petition was withdrawn. This factual position has been admitted by the learned Assistant Advocate General before this court today, therefore, no question of bar contained under Order XXIII, Rule 3 of the C.P.C. arises in this case.
12. 13.Now I deal with section 11 of the C.P.C. as well as Order II, Rule 2 of the C.P.C. There is no cavil to the rule that for application of section 11 of the C.P.C. the previous adjudication must be on merits.
13. There is no previous adjudication on merits between the parties and further I am of the considered view that for applying provision of section 11 of the C.P.C. at least a preliminary issue is to be casted and at least the documentary evidence with regard to the previous litigation is to be placed on the file before the adjudication. In case in hand for application of section 11 of the C.P.C. there is no adjudication on merits on the basis of cause of action pressed through the suit which is subject matter of this civil revision. Needless to note here that subject matter of suit and cause of action are absolutely different things. Subject matter of a suit can be a subject matter of the subsequent suit and on the basis that the subject matter of two suits is the same, the second suit cannot be said to be not proceedable under the law because for adjudication of maintainability subject matter is not relevant, rather the cause of action is to be considered. If cause of action in the first suit and in the second suit" is same, then certainly the second suit is barred, otherwise the subject matter of two suits can be the same, in that eventuality section 11 of the C.P.C. is not applicable. In the instant suit when case of the plaintiffs that previous to coming upon the surface the present cause of action, which came to their knowledge when the settlement department filed report and para wise comments in Writ Petition No.62-R-2000, they were of the view that their PTD has been cancelled and thereafter PTD in favour of Mst. Aziz Begum about the same property has been issued. They filed previous suit on the assumption of cause of action that cancellation of their PTD and issuance of a new PTD of the suit property in favour of Mst. Aziz Beguni is illegal but when they came to know that there is no cancellation of their and no PTD has been issued in favour of Mst.
14. Aziz Begum by the settlement department, therefore, a new cause of action arose to them whereby only the possession of suit property is now to be claimed by them or in the alternate as the matter was resolved between the parties that an alternate land will be given to the plaintiffs, the said cause has been pressed by the plaintiffs. In the above situation, the suit is also not hit by Order II, Rule 2 of the C.P.C. when on the basis of a new cause of action the instant suit has been filed.
14. The other objection raised that suit for declaration has been filed, whereas on the basis of any agreement a suit for specific performance should have been filed. Needless to state that the plaintiffs can at any time pray for permission to amend the plaint if it does not change the nature of suit and admittedly the suit for declaration under the pronouncement of august Supreme Court of Pakistan can be converted into a suit for specific performance, as it is based upon agreement to sell. The last prayer made by the learned counsel for the petitioners that for final adjudication of instant civil revision record of settlement department be summoned, is sufficient to note that this argument is sufficient to dismiss the instant civil revision because if record of settlement department is required to decide the matter in issue, then why the learned trial court should not be given opportunity to decide the case after recording of evidence. The case law relied by the learned counsel for the petitioners is not applicable to the facts of this case, therefore, not helpful for the petitioners.
15. 15.In this view of the matter, I am of the view that the view taken by the learned appellate court is absolutely in accordance with law, therefore, no case for interference by this court while exercising jurisdiction under section 115 of the C.P.C. has been made out, when the parties to the lis are to be given full opportunity to prove their pleaded case by producing evidence and it is not a case for application of section 11 of the C.P.C., Order II, Rule 2 of the C.P.C. and bar of Order XXIII, Rule 1 of the C.P.C. is also not applicable.
16. 16.For the foregoing reasons, this civil revision as well as the connected Civil Revision No.1581 of 2007 stand dismissed.