WIQAR AHMAD, J. Petitioner namely Sirhind Zada has called in question judgment and decree dated 27.02.2015 of the Court of learned Senior Civil Judg e, Dir Lower at Timergara as well as judgment dated 10.06.2015 of the Court of learned Additional District Judge Chakdara, Camp Court at Timergara, whereby his suit has concurrently been rejected by the two Courts below , as being barred by the principle of res-judicata as enshrined in Section 11 of the Code of Civil Procedure, 1908 (hereinafter referred to as `CPC' ).
2. Petitioner filed a suit for declaration to the effect that he has been co-owner to the extent of half share in the property described fully in the schedule annexed with plaint and that defendants have got no right to deny his right to the said extent. He has also prayed for grant of a decree for perpetual injunction , possession and cancellation of any deed, forthcoming in the suit and operating against his rights. He has contended in his plaint that the disputed property had actually been owned by plaintif f and predecessor-in-interest of defendants No. 1 to 3 in equal share.
He has further asserted that since predecessor of defendants No. 1 to 3 namely Bacha Zada (deceased) was elder brother of plaintif f, therefore he had entered his name in all the deeds relating to purchase of property but same had been purchased by him with the plaintif f jointly .
3. Defendants in the suit were summoned, who appeared and filed their joint written statement, issues were framed, whereafter evidence of plaintif f was recorded to some extent but during said proceedings defendants filed an application for rejecting the plaint under Order VII Rule 11 CPC, as being barred by the principle of res-judicata .
Said application was dismissed vide order dated 10.02.2014 of the learned civil Court. Respondents filed a revision there-against in the Court of learned District Judge, Dir Lower at Timergara, which was dismissed being not pressed vide order dated 29.05.2014 but the learned civil Court was however directed to frame preliminary issue regarding the question "whether the suit had been barred by principle of res-judicata ", record evidence and decide the suit accordingly . In pursuance to said order , full opportunity was given to both the parties. Plaintif f produced three (03) witnesses as APW -1, APW -2 and APW -3, while defendants also produced three (03) witnesses as ADW - 1, ADW -2 and ADW -3. On conclusion of evidence of respondents, application under Order VII Rule 11 CPC was accepted and plaint of the plaintif f was rejected vide judgment dated 27.02.2015 of the learned civil Court.
Petitioner questioned judgment of the learned civil Court before Court of learned District Judge, Dir Lower at Timergara by filing an appeal, but same was also dismissed vide judgment dated 10.06.2015 of the Court of learned Additional District Judge Chakdara, Camp Court at Timergara. Feeling aggrieved there-from, petitioner has invoked Revisional jurisdiction of this Court under section 1 15 CPC.
4. Learned counsel for petitioner submitted during the course of his arguments that suit of plaintif f was not barred by the doctrine of res-judicata , as earlier suit had been withdrawn with permission to file a fresh suit. Learned counsel also submitted that application for partition filed before the Deputy Commissioner/District Collector , Timergara was also not constituting a bar in the way of plaintif f/petitioner and he has therefore been wrongly non- suited. He relied upon the judgments reported as PLD 2018 Supreme Court 322, 2015 YLR 1550 , 2016 YLR Note 135 and 2019 CLC 1613 , in support of his contentions.
5. Learned counsel for respondents subm itted in rebuttal that suit of plaintif f was barred by the principle of res- judicata not only on account of pendency and dismissal of the earlier suit but on account of his application for partition filed before the revenue Court and withdrawn thereafter on 19.09.1997. In support of his contentions, he relied upon the judgments reported as 1998 CLC 1414 , 2016 YLR 241 1, 2017 YLR 222 and 2017 CLC Note 43.
6. I have heard arguments of learned counsel for the parties and perused the record.
7. The two Courts below have non-suited petitioner after finding his suit barred by the principle of res-judicata .
Principle of res-judicata arose out of a matter of public policy with the desire that judgments of a Courts, properly adjudicated upon, should have finality . This principle prevents an unsatisfied litigant from agitating his grievances before Courts of law, time and again. It aims at ensuring an end to litigation by saving not only the Courts from being burdened excessively but also the parties from vexed twice or thrice for the same cause of action. "A decision", as explained in Res-Judicata, 4th edition, (Spencer-Bower & Handley , 2009) "pronounced by a judicial tribunal having jurisdiction over the cause and the parties, that disposes once and for all the matters so decided, so that except on appeal, it cannot be re-litigated between the parties or their privies" . This principle was first established in the case of Henderson v. Henderson (1843) 3 Hare 100), wherein it was held that as a matter of important public policy , finality of judgments has to be ensured, so as to preven t the waste of judicial resources on repeated hearings of the same issues. The subsequent judgment in Virgin Atlantic case 12013] UKSC 46, laid down the six essential principles which made up the doctrine of res-judicata as follows; a) A party is prevented from brining subsequent proceedings to challenge an outcome that has already been decided (cause of action estoppel). b) If a claimant succeeds in the first action and does not appeal the outcome, he may not bring a subsequent action on the same cause of action (i.e. to recover further damages). c) The doctrine of merger treats a cause of action as having been extinguished once judgment has been provided and accordingly the claimant's only right is the judgment itself. d) A part may not bring subsequent proceedings on an issue that has already been determined (issue estoppel). e) A party may not bring subsequent proceedings which should and could have been dealt with in earlier proceedings (the 'Henderson v Henderson' principle). f) There is a general procedural rule against abusive proceedings."
In our jurisdiction, Section 1 1 of CPC embodied the doctrine of res-judicata , which provided as follows; "11. Res-Judicata.-- No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substanti ally in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.
Explanation I-- The expression "former suit" shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto.
Explanation II-- For the purposes of this section, the competence of a Court shall be determined irrespective of any provisions as to right of appeal from the decision of such Court.
Explanation III-- The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly , by the other .
Explanation IV-- Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.
Explanation V-- Any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purposes of this section, be deemed to have been refused.
Explanation VI-- Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating."
The principle of res-judicata was also re-encapsulated and further elucidated by Hon'ble Apex Court in the case of Province of Punjab through Chief Secretary , and 5 others vs Malik Ibrahim and sons and another reported as 2000 SCMR 1 172 in the followings words; 1) The matter directly and substantiall y in issue in the subsequent suit or issue must be the same matter which was directly and substantially in issue either actually or constructively in the former suit.
2) The former suit must have been a suit between the same parties or betwee n parties under whom they or any one of them claim.
3) The parties as aforesaid must have litigated under the same title in the former suit.
4) The Court which decided the former suit must have been a Court competent to try the subsequent suit in which such issue is subsequently raised.
5) The matter directly and substantiall y in issue in the subsequent suit must have been heard and finally decided by the Court in the first suit."
8. Coming to facts of the case in hand, it is important to be noted that respondents have been pleading the existence of bar of res-judicata against petitioner due to the following facts; a) Petitioner had earlier filed an application for separation of his share by way of partition before the Deputy Commissioner/District Collector , Timergara on 21.01.1996, which had been marked to Assistant Commissioner , Timergara for disposal. Said application had subsequently been consigned to record room in pursuance to some compromise vide order dated 19.09.1997. b) Petitioner had also filed a suit in the Court of learned Senior Civil Judge, Dir Lower at Timergara in respect of the property in dispute, which had subsequently been dismissed as withdrawn on 1 1.05.201 1,
9. So far as the first assertion regarding filing and withdrawal of application for partition before the revenue forum, is concerned, same did not constitute a bar in the way of filing the subsequent suit before civil Court, in the case in hand. Application for partition filed before the revenue Court under section 135 of the Land Revenue Act, 1967, was filed before such a forum which was not competent to grant the relief in the subse quent suit. Same had not been decided on merit but was disposed of on the basis of compromise and the matter in issue in the suit in hand had not been directly and substantially in issue, entirely , in proceedings of the said application.
10. So far as pendency of the earlier suit filed by petitioner before the civil Court and its subsequent withdrawal vide order dated 11.05.201 1, is concerned, same did not constitute a bar of res-judicata in filing of the subsequent suit either . The earlier suit had neither been adjudicated upon nor decided on merit. Regarding the fact that earlier suit should have been proceeded and adjudicated upon on merit, for applicability of the bar of res-judicata , observations of the Hon'ble Apex Court the case of Gulistan Textile Mills Ltd. and another vs Soneri Bank Ltd. and another reported as PLD 2018 Supreme Court 322, in almost a similar situation, may be reproduced with benefit; "Res judicata is the Latin term for "a matter (already) judged" and entails the concept of claim preclusion; once a matter has been decided and adjudicated on merits by an adjudicatory body , the same cannot be raised again. The purpose of this principle is to create repose and to prevent multiple and possibly contradictory findings on the same issues and to curb unnecessary delays in proceedings. As regards civil proceedings, this concept is codified in Section 11 of the C.P.C. However , the said section specifically refers to 'suits' and therefore restricts the application of the principle thereto. Interlocutory applications cannot be regarded as 'suits': hence, strictly speaking Section 11 of the C.P.C. would not be attracted to such applications. Nevertheless, the general legal principles of res judicata would most certainly apply .
Therefore an order passed pursuant to any interlocutory application at one stage of the proceedings would operate as a bar upon similar interlocutory applications made at a subsequent stage of the proceedings based on the general principles of res judicata . However this general rule will not apply where the order on such interlocutory application does not involve any adjudication. Examples of such instances are:- where there is no decision on merits, but a mere expression of opinion not necessary for the disposal of the application; where a matter , though in issue has, as a fact, not been heard and decided, either actually or constructively; where a matter in issue has been expressly left open and undecided; where the suit is not pressed; or where the suit is withdrawn."
Further reliance in this respect may be placed on the law laid down by the Hon'ble Apex Court in the case of Abdul Ghafoor vs Chief Settlement Commissioner and another reported as 1985 SCMR 464, case of Hafiz Noor Muhammad and others vs Ghulam Rasul and others reported as 1999 SCMR 705, case of Muhammad Saleem Ullah and others vs Additional District Judge, Gujranwala and others reported as PLD 2005 Supreme Court 511 and the case of Muhammad Akram and others vs Member , Board of Revenue and another reported as 2007 SCMR 289 .
11. It has also been held by the Hon'ble Supreme Court of Pakistan that mere withdrawal of a suit shall not constitute a bar of res-judicata for filing a subsequent suit in its judgment given in the case of Gulistan Textile Mills Limited supra, judgment in the case of Muhammad Akram and others vs Member , Board of Revenue and another reported as 2007 SCMR 289 as well as judgment of Hon'ble Lahore High Court in the case of Mst.
Ghulam Sughran and others vs Sahibz ada ljaz Hussain and others reported as PLD 1986 Lahore 194. In the case of Ghulam Nabi and others vs Seth Muhammad Yaqub and others reported as PLD 1983 Supreme Court 344 , the Hon'ble Apex Court has held as follows; "It is established law that a mere withdrawal of a suit does not operate as res judicata for the reason, if for nothing else, that there was no adjudication on merit."
The earlier suit had been simply withdrawn and the subsequent suit cannot, therefore be held to be barred by the principle of res-judicata.
12. The learned appellate Court has also recorded findings, in the case in hand, that suit was barred by Sub-Rule 3 of Rule 1 of Order XXIII CPC, for the reason that while allowing withdrawal of the earlier suit, the learned civil Court had not granted express permission to petitioner in its order dated 11.05.201 1. Perusal of application filed for the purpose, reveals that petitioner had sough t permission for withdrawal of his suit with permission to file a fresh one.
The application was accepted in toto and suit of plaintif f was dismissed as withdrawn vide order dated 11.05.201 1 of the civil Court. Non-mentioning of grant of permission for filing fresh suit in the concluding sentence, cannot be held to be barring petitioner from filing fresh suit, when the intent of order was very much clear otherwise. The learned appellate Court as well as learned civil Court fall in error in reading the last sentence in isolation.
Concluding two sentences of the order being relevant are reproduced hereunder for ready reference; "Now petitioner wishes to abandon half of the claim and for that wishes to withdraw his suit with the permission of this Court to file a fresh suit. Since Order XXIII Rule 1 CPC is clear to this effect that a plaintiff can abandon part of claim and withdraw suit with the permission of the Court to file suit afresh, therefore the instant application is accepted and suit of the plaintiff is dismissed as withdrawn."
Intent of the Court was quite clear that petitioner had been allowed to withdraw his suit with permission of the Court to file fresh suit. The two Courts below could not read the order in its true perspective and resultantly fall in error .
13. Existence of the question of waiver or estoppel on account of some earlier compromise, effected between the parties in the earlier proceedings, is purposely not dilated upon here, for the reason that same may prejudice case of either party at the final decision of the case. Scope of the instant proceedings was limited to the bar of suit on account of res-judicata or Order XXIII Rule 1 CPC. The question of waiver or estoppels is supposed to be dealt with by the two Courts below along with other issues in the case at the time of giving final judgment on all the issues of the case.
14. In light of what has been discussed above, the instant petition is accepted, judgment and decree dated 27.02.2015 of the learned civil Court as well as judgment dated 10.06.2015 of the learned Additional District Judge Chakdara, Camp Court at Timergara are hereby set aside. Civil Court is directed to proceed with the case from the stage at which it had been pending at the time of filing of application under Order VII Rule 11 CPC, by the defendants. The instant being an old matter shall also be proceeded with reasonable speed and shall preferably be disposed of within a period of six (06) months.