RAJA SHAKEEL AHMAD, J. The instant revision petition bearing number Civil Revision No.90/2017 is directed against the judgment/order dated 10/05/2017 passed by the District Judge Ghizer in CFA No. 74/2016, whereby the learned first appellate Court dismissed the appeal by upholding the judgment/order dated 10/11/2016 passed by the learned trial court vide which the learned trial Court rejected the suit of petitioner/plaintiff under Order VII, Rule 11, C.P.C.
2. A short abstract of the litigation as per plaint is that the petitioner/plaintiff filed a civil suit bearing number Civil Suit No.01/2015 for declaration, dispossession and permanent injunction against the respondent/defendant. The suit of petitioner/plaintiff filed against the respondent/defendant was rejected by the learned trial Court vide order dated 10/11/2016 under Order VII, Rule 11, C.P.C. The relevant portion of the said order is reproduced as under: - "I have heard argument and record perused. Plaintiff himself has stated in the plaint that land was given to the defendant in lieu of debt amount and the same yet to be paid. Moreover, in Civil Case No. 44/2008, Retired Subidar Sahib Shah v. Muhammad Younus and others, court has decided the issue of ownership of disputed land under issue No.5 and no appeal has been preferred by plaintiff, furthermore stated in earlier suit plaintiff had failed to prove his version and same is stated and decided in issues Nos. 6 and 7. Therefore, issues between same parties, on same grounds once decided could not be re-opened. Suit clearly barred under law of res judicata.
Hence rejected. Civil Suit disposed off. File."
3. Feeling aggrieved from the same, the petitioner/plaintiff preferred an appeal bearing number CFA No. 74/2016, before the first appellate Court. The first appellate Court, maintained the order dated 10/11/2016 passed in Civil Suit No. 01/2015 by the trial Court. The findings and version of the learned first appellate Court is important, as such reproduced hereunder:- "I have considered the arguments of the parties and the record. The claim of the plaintiff in the present suit has directly and substantially remained in question in the former suit and separate issues were struck in this regard and findings are returned by the Courts under the issues Nos.
4, 5 and 6 in the former suit No. 44/2008. The present parties were party to that suit and former suit failed in result of declaration of the sale in favour of the present defendant as valid for failure of the plaintiff of the former suit and the present plaintiff to prove their contentions narrated under the issues. No any appeal has been preferred by the present plaintiff against the findings of the courts in the former case and issues involving same questions of law and facts decided between the same parties in a former suit could not be reopened through a fresh suit therefore I am of this considered view that the learned trial Court has passed the impugned judgment/order in consonance with law and the appeal being meritless is liable to be dismissed.
Appeal in view of the above stands dismissed with costs. Record of learned trial Court be returned to them and this file after due completion be consigned to record."
4. The petitioner/plaintiff filed the instant revision petition against the impugned judgment/order 'dated 10/05/2017 passed by the learned District Judge Ghizer, with following prayer: - "It is therefore, humbly prayed to kindly by accepting the revision petition impugned orders be set aside and the case be remanded back to learned trial Judge for trial on merits in accordance law."
5. The learned counsel for petitioner/plaintiff contended that the impugned orders passed by the learned lower courts are against the law and facts, as the impugned judgement/decrees passed in hasty manner as after framing of issues instead of decision on merit the learned trial Court rejected the plaint of petitioner/plaintiff on the basis of another case bearing number pre-emption Suit No. 44/2008 titled Sahib Shah Vs Muhammad Younus and others, which is illegal and incorrect. The petitioner/plaintiff and respondent/defendant were arrayed in the said pre-emption suit as defendants Nos.2 and 3, but the issues of the present suit were not discussed in the said suit.
The learned counsel further contended that previous Suit No. 44/2008 between the parties was dismissed on the ground of non-proof of sale in lieu of Rs. 2,10,000/- by Muhammad Younus to the defendant of the instant case. Learned counsel for the petitioner further argued that, so far as the scope of Order VII, Rule 11, C.P.C. is concerned, the trial Court has only to see the averments made in the plaint. He submitted that the order passed by the learned trial Court as well as the first appellate court are against the provisions of law and without any legal substance; the learned counsel further contended that the ground of res judicata applied by both the learned lower courts is not justified as the petitioner was not required to challenge the judgment of previous suit passed by the learned Civil Judge Punial/lshkoman dated 01/12/2014, since there was nothing against the present petitioner therefore, he not opted to file any appeal. At the end of his arguments The learned Counsel for petitioner also submitted an application under Order I, Rule 10(2), C.P.C., to array Mohammad Younus (the plaintiff of previous suit) as defendant No. 2 being necessary party in the present suit. On the basis of above submissions, the learned counsel for petitioner/plaintiff prayed for setting aside the impugned judgments/decrees under revision and remand the case to trial court for adjudication of merit.
6. On the other hand, the learned counsel for respondent/defendant argued that both the lower courts have rightly rejected the suit of petitioner/plaintiff under Order. VII, Rule 11, C.P.C., as the issue already discussed and decided in pre-emption suit No. 44/2008. The learned trial Court decided the matter of the instant suit under issue Nos. 6 and 7 of previous suit No. 44/2008, The learned counsel further submits that the parties of the previous suit and the present suit are the same, property which is involved in between the parties is also same and claim of ownership of plaintiff in regard to the suit property has already been decided in previous suit under issue No. 6 of Civil Suit No. 44/08 and the present petitioner failed to prove his contention in previous suit before the competent Court, and not even bother to file appeal when the material issue of ownership was decided against the present petitioner, therefore the suit filed by the petitioner/plaintiff was hit by the principle of res judicata and, therefore the plaint was rightly rejected, the learned counsel for the respondent/defendant also contended that, the principle of estoppel also applies in the instant case, he argued that if the case is remanded for trial on merits the plaintiff couldn't resile from the admissions he made during his deposition before the trial court while recording of his statement on oath during the proceedings of previous suit. Finally, the learned counsel for respondent/defendant prayed for dismissal of the revision petition by maintaining the orders passed by the learned lower courts in support of his above contention, the learned counsel has relied upon the following case laws 1994 MLD 126, 1994 CLC 1248, 1994 SCMR 826 and PLD 2015 Sindh 39.
7. I minutely examined impugned judgment/decrees of both the lower courts and also gone through the record of case file. Both the impugned judgments which are passed on the sole ground of res judicata, and the contention of petitioner is related to applicability of the rule of res judicata.
8. Under section 11, C.P.C. and in plethora of judgements it is held that the case shall fall under the principle of res judicata when: - I. 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 or constructively in the former suit II. The former suit must have been a suit between the same parties or between parties under whom they or any one of them claim III. The parties as aforesaid must have litigated under the same title in the former suit.
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 V. 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.
On the basis of the above referred principles it transpires that the rule of Res judicata is based on the consideration that same cause should not be tried for the second time between the same parties and there must be an end to the litigation between the parties. The principle is that since the cause of action in a suit merges in the judgement, therefore no second suit can be filed on the basis of same cause of action unless it is shown that it was recurring in nature, thus, the essential condition required to be fulfilled to establish the plea of res judicata would be that the matter in issue and the material point in dispute between the parties in the earlier litigation was directly and substantially in issue in the subsequent litigation. It is essential to show that earlier decision in the matter was based on proper adjudication on the relevant issue either of law or fact or mixed issue of law and fact. The decision on an issue of fact based on evidence and decision on issue of law on the basis of set of facts directly and substantially by a competent court, is certainly res judicata. In nutshell, the adjudication on question of law or fact or mixed question of law and fact on the basis of established set of facts and determination of such question in the judgment, would essentially be res judicata. In such circumstances, Court shall not try a suit or issue involving a matter no longer open to contest, either on question of law or fact by reason of an earlier decision if the matter in issue in the subsequent suit directly and substantially is the same which was involved in the earlier litigation. This is also hold in reported judgment PLD 2015 Sindh 39 referred by the counsel for respondent "Person who allegedly had been deprive of rights over a property from any of the party impleaded in the previous proceedings/suit could neither seek his independent right over such property nor he could hunt for a declaration of his entitlement to defeat the earlier verdict of the court, which otherwise had attained finality".
9. Adverting to the facts of the case in hand I find that the learned trial Court decided the matter of the instant suit under issues Nos. 6 and 7 of previous suit No. 44/2008, the parties of the previous suit and the present suit are the same, property which is involved in between the parties is also same and claim of ownership of plaintiff in regard to the suit property has already been decided in previous suit under issue No. 6 of Civil Suit No. 44/08 and the present petitioner failed to prove his contention in previous suit before the competent Court, and not even bother to file appeal when the material issue of ownership was decided against the present petitioner, the principle of stopple also applies in the instant case, as the plaintiff couldn't resile from the admissions he made during his deposition before the trial court while recording of his statement on oath during the proceedings of previous suit. For the sake of arguments if the petition in hand is allowed and the case is remanded back to trial court for trial of case on merits, the case has to be decided on the of same material which is already part of this petition and at the end of the day the result shall be the same, hence remanding of the case to the trial court shall not serve any useful purpose.
10. Consequently, I have no hesitation to conclude that the impugned judgments/decrees passed by the learned Courts below are proper and within four corners of law, whereby the plaint of the petitioner/plaintiff was rejected under section 11, C.P.C. being barred by law of res judicata. The impugned judgments/decrees are result of correct appreciation of applicable law and material available on file. The learned counsel for the petitioner/plaintiff has failed to establish the grounds agitated in the instant petition, hence, the judgment/order do not call for any interference by this Court in its revisional jurisdiction under section 115, C.P.C.
11. In the light of above discussion the instant revision petition has no merit, hence, dismissed by upholding the judgments/orders passed by the learned Courts below. No order as to costs.
12. The instant revision petition No. C. Rev. No. 90/2017 stand disposed of accordingly. The record of the lower courts be send back along with attested copy of this judgment. File.