Shorn of unnecessary detail, admittedly earlier two suits filed by the contesting parties ended against present petitioners upto the level of the apex Court, which vide order dated 19.11.2015 passed in C.P. No. 2337 of 2015 resolved the issue with regard to estate left by predecessor of the parties. Scope of Section 2-A of the Muslim Personal (Shariat) Application Act, 1948 was also discussed by the honourable Supreme Court of Pakistan in last paragraph of its said order , which was never assailed by means of Review Petition before the same Court, rather within 1(1/2) month thereafter on 30.12.2 015, the second suit in hand was instituted by the present petitioners to reopen the controversy already culminated as referred above.. The respondents promptly filed an application for rejection of the plaint that suit was hit by Section 11 as well as Order II Rule 2 of the Code, 1908. The learned Trial Court being sanguine to the stance of the respondents/ defendants rejected the plaint. Despite being assailed before the learned District Court by means of Appeal, it was maintained and to call in question their unanimous orders, this Civil Revision was preferred.
2. Ch. Zulfiqar Ali, Advocate, learned counsel for the petitioners while relying upon the case law cited as Shahzad and another vs. Nth Additional District Judge, Karach (East) and 5 others (PLD 2016 Sindh 26), Muhammad Saleem, Ullah and others vs. Additional District Judge, Gujranwala and others (PLD 2005 SC 511) and Q.B.E.
Insurance (International) Ltd vs. Jaffar Flour and Oil Mills Ltd. and others (2008 SCMR 1037 ) emphasized that question of fact especially with regard to inheritance can only be resolved after framing of issues, but both the Courts below without application of their judicious mind erred in law to non-suit the petitioners on technicality . It was further argued that neither the law of limitation was involved nor it was a case of applicability of Order II Rule 2 of the Code, 1908, whereas new cause of action was subsequently accrued to the petitioners, but both the Courts below without going through the contents of the plaint passed the impugned orders in a haste, which being nullity in the eye of law are not sustainable.
In response, M/s. Ijaz Hussain Gorcha, Abdul Sattar Chughtai, Syed Akhtar Hussain Shirazi and Muhammad Aamer Javed Bhatti, Advocates, learned counsel for private respondents and Mr. Shadab Hassan Jafri, Addl. A.G. on behalf of Respondent No. 1 being in agreement submitted that the suit was not only hit by above provisions of law, rather it was a contemptuous act and supported the impugned verdicts while adding further that concurrent findings cannot be disturbed in the exercise of jurisdiction vested u/S. 1 15 of the Code ibid.
3. Heard and record perused.
4. Undeniably , a round of litigation was earlier played among-the present parties with regard to land involved in the suit in hand. In previous suit the following were the issues:- {{URDU TEXT}} which were finally decided upto the level of august Supreme Court In the recent suit, again inheritance mutation No. 1173 dated 15.05.1975 of Mst. Ghulam Fatima had been challenged, which question directly had already been culminated while rendering findings on Issue No. 2, referred hereinabove, as such the matter in issue once decided cannot be tried for the second time. It is a fit case that the matter directly and substantially in issue is the same, hence the petitioners were precluded from again raising the grouse, which had earlier been finalized. The doctrine of res judicata bars the subsequent litigation if following five conditions are fulfilled:
(1) The matter directly and substantially in issue in the subsequent suit or issue must be the same matter which was directly and substantially in issue either actually (Explanation III), or constructively (Explanation IV), in the former suit
(2) The former suit must have been a suit between the same parties or between parties under whom they or any one of them claim (Explanation IV).
(3) The parties as afore-said 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 (Explanation II).
(5) The matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by the Court in the first suit (Explanation V). whereas doctrine of constructive res judicata on the other hand, bars the trial in a subsequent suit of matters not alleged by either of the parties in the former suit, but which might and ought to have been alleged, as such in the case in hand this principle was squarely applicable. This doctrine had engaged the attention of the apex Court in a case cited as Abdul Majid and others vs. Abdul Ghafoor Khan and others (PLD 1982 SC 146) and the relevant portion thereof for ready reference is reproduced as under: There is no force in any of the arguments raised by the learned counsel. He admits that the petitioners fled the suit after the final decision by the High Court, to remove its effect, so as to get their claim sanctioned from the Rehabilitation Authorities. It is, therefore, not correct to say that the High Court decision would bar the fresh enquiry before the Rehabilitation Authorities only. Whatever the forum whether of spec ial or general jurisdiction it will operate as a bar on the re-opening of the case, except of course to the extent the law permits by way of review/appeal. As was held by this Court in the case of Muhammad Chiragh-ud-Din relied upon by the learned Courts below , even if the provision of Section 11, C.P.C. do not apply in terms, in such like cases, the general principles of res judicata would apply . Therefore, there is no force in the second argument of the learned counsel either . In this connection learned counsel also tried to argue that the principle of constructive res judicata would not apply in cases where Section 11, C.P.C. does not apply , in terms. There is no reason to exclude a particular kind of res judicata when considering these questions, neither on the basis of any law nor on any other general principle.
5. Moreover , without conceding, if the argument of Mr. Zulfiqar that some new relief was claimed in subsequent suit is taken to be correct, even then mandate of Order II rule 2 of the Code, 1908 precluded the petitioners to file subsequent suit regarding any fresh relief, which was relinquished in earlier one. Besides, the other setback was that once limitation started running in 1994 when earlier suit was instituted, then it could not be stopped latter on and on the score of limitation the second suit instituted after twenty one years was badly barred by time.
It was a hard fact that till 11/2 month prior to institution of ensuing suit, the earlier suit of the petitioners was still sub judice before the august Supreme Court, who at that moment could amend their pleadings, but they waited for its decision, which on having been decided against them, they managed the second one in a contemptuous manner with the aim to reopen the past and closed chapter and such a tendency cannot be tolerated any further because it would amount to promote endless litigatio n. The case law cited by learned counsel for the petitioners being run on different footing is not applicable to the facts of the case in hand. Resultantly this Civil Revision being devoid of any merit and force is dismissed with costs of Rs. 50,000/- (Rupees fifty thousand only).