1. ' This revision petition is directed against the judgment and decree dated 5-5-1982 of VIlth Additional District Judge, Karachi thereby upholding the Judgment and decree of the Senior Civil Judge 1st, Karachi, dismissing the suit of the petitioners.
2. ' The facts which give rise to this revision are that the petitioners are owners of a plot of land is the building standing thereon. This plot bears survey No.25, Sheet R.C. 4 in Ranchore Quarters, Karachi.
3. There is an alignment land belonging to K.M.C. measuring 186 square yards adjacent to and towards the north of the said property. One Anwar Baig, the predecessor-in-title of respondents 3 to 7 was the tenant of the petitioners in respect of the shop in the said, building. The predecessor- in-title of the petitioners one Shah Muhammad applied to K.M.C. for the grant of the said alignment land in April, 1956. His applications are filed as Exhs. 11 and 12. He conveyed his agreement to pay Rs.100 per square yard by letter, dated 23-7-1957 Exh.13. The said Anwar Ali Baig, it is alleged in conspiracy with the employees of K.M.C., got his name inserted in place of the petitioners in the retort; of K.M.C. and got bills of taxes issued in his favour for the year 1963-64 fraudulently. On the basis of such false record, it is alleged by the petitioners that the said Anwar Baig claimed himself to be the owner of the property which actually belongs to the petitioners and their predecessors- in-title. It is further alleged by the petitioners that on the basis of the false record, the said Anwar Baig in collusion with the employees of K.M.C. got resolution No.1102, dated 26-3-1965 Exh.17 passed by the respondent No.2 granting 133 square yard out of the said total alignment land of 186 square yards to him at the rate of Rs.150 per square yards. The petitioners appealed against the said resolution to the Commissioner of Karachi, who was then the controlling authority for respondent No.2. The Commissioner of Karachi, made enquiries from the respondent No.1 as to whether the petitioners had applied for the grant of the alignment land prior to the passing of the resolution No.1102 by his letter dated 8-6-1965 Exh.19. The said resolution was suspended by Director, Basic Democracies vide his order Exh.22. It is the case of the petitioners that the Chairman of the respondent No.1 without disclosing the actual position or without referring to Exh.22 approached the Commissioner of Karachi for approval of the said resolution by his letter, dated 12-4-1968 and it is alleged that at the instance of the said Anwar Baig the Additional Commissioner, Karachi, vide Exh.
4. 24, dated 13-5-1968, approved the said Resolution. The appeal preferred to the Commissioner of Karachi was rejected on the ground that it was time barred. Hence the petitioners filed a writ petition bearing No.577 of 1969 in the High Court of West Pakistan, Karachi Bench, challenging the validity of the said order and also the said Resolution on the ground that the said Resolution was passed by a meeting of respondent No.1 which did not have a proper quorum. The petition of the petitioners was dismissed and the petitioners filed a petition for special leave to appeal bearing No.K-133 of 1969 in the Supreme Court of Pakistan which was also dismissed by the Hon'ble Supreme Court on 9-8-1970. In the meantime, in March, 1966, the said Anwar Baig had started construction on the disputed land, hence the petitioners had filed Suit No.438 of 1966 against Anwar Baig for injunction but the suit was ultimately dismissed for default. Thereafter when the petitioners came to know that the respondent No.1 was about to execute a lease deed in respect of the said 133 square yards and the said Anwar Baig had again started using the said portion of the land as his own, then the petitioners filed Suit No.130 of 1981, against the respon dent setting out a cause of action based on the fraud and mala fide of both said Anwar Baig and respondent No.1 and also claiming the right to the alignmet and challenging the action of the Additional Commissioner who had no authority to grant the land, and further claiming that the whole of 186 square yards of the alignment land being land in alignment to the property of the petitioners was liable to be transferred to them.
5. ' The respondent No.1 filed written-statement and pleaded that the suit is barred under section 4 and 9 of Civil Procedure Code and section 88 of Sind Peoples Local Government Ordinance, 1972 and the suit is barred by section 56 of Specific Relief Act. They have also denied the allegation and stated that the petitioners were offered an area of land measuring 53 square yards but they did not accept and the same is undisposed as yet. Respondent No.3 also filed written-statement in which allegations have been denied and the action of the respondent No.1 was supported. It was further averred in the written-statement that the suit was not maintainable being barred by principles of res judicata. Upon the pleadings of the parties, the trial Court framed the following issues:-
(1) Whether the suit is not maintainable in law being barred by res judicata?
(2) Whether the suit is barred by sections 4 and 9, C.P.C. read with section 88 of Sind Peoples Local Government Ordinance, 1972.
(3) Whether they acted mala fide and fraudulently with regard to disposal of land in suit?
(4) Whether the plaintiff is entitled to the right of pre-emption in respect of the suit land?
(5) Whether the plaintiffs are entitled for the relief claimed?
(6) What should the order and decree be?
6. ' The learned trial Court, on the basis of evidence produced by the parties and taking into consideration the arguments advanced by the learned counsel for the parties, decided issue No.1 in the affirmative and dismissed the suit on the legal grounds.
7. ' The petitioners being aggrieved against the Judgment of the trial Court filed Civil Appeal No.68 of 1980 in the Court of District Judge, Karachi which was ultimately transferred to the Court of VIIth Additional District Judge; Karachi. The Additional District Judge, Karachi, by his Judgment dated 5- 5-1982, dismissed the appeal and affirmed the decision of the trial Court for the reasons given in the judgment.
8. ' Mr. Muzaffar Hassan learned counsel for the petitioners, contended that (1) the courts below have not been able to differentiate between a dismissal of suit under Order IX, rule 3 and Order IX, rule 8, C.P.C., (2) the Courts below have not properly exercised their jurisdiction while holding the suit as not maintainable in law being barred by res judicata.
9. ' On the other hand M/s. Nazir Ahmed Siddiqui and Muslim Naqvi, the learned counsel for the respondents, have contended that the suit is barred under the provisions of Order IX, rule 8, C.P.C. and also the suit is not maintainable being barred by res judicata.
10. ' It is not in dispute that the earlier Suit No.438 of 1966 was dismissed on 12-5-1967 by the following order:- "None present. Suit is dismissed for non-prosecution."
11. ' It is not in dispute that in earlier suit predecessor-in-interest of the present respondents Nos. 3 to 7 was party. The suit was dismissed for default and the applicant neither got the suit restored nor filed any appeal against the dismissal order.
12. ' The provisions of Order IX of Civil Procedure Code are concerned, deal with appearance of parties and consequences. Rule 1 enjoins on all the parties to appear on the date fixed in the summons.
13. Rule 2 provides For dismissal of suit where summons is not served in consequences of plaintiff's failure to pay costs. Rule 3 for dismissal of the suit when neither party appears when the suit is called for hearing and when there is such a dismissal either under rule 2 or 3. Rule 4 enables the Court to restore the suit. Rule 5 lays down a limit of three moniths time for an application for fresh summons for the service of the defendant where the first summons is returned unserved, failing which the suit must be dismissed. Procedure when plaintiff only appears and defendant t does not appear is provided for in rule 6. That provides how the Cou rt may proceed ex parte. Rule 7 permits defendant to satisfy the Court and consequently enables the Court to set aside the ex parte orde r.
14. Rule 8 deals with the procedure when the defendant only appears and plaintiff is absent. It is provided that on that day if the defendant admits the claim, the Court may proceed to pass the decree or may d ismiss the suit in its entirety or with respect to reminder. Rule 9 provides for the remedy as well as creates a bar for filing a fresh suit.
15. ' Now the relevant rules of Order IX on which the controversy centres may be extracted:-
(3) "Where neither party appears, suit to be dismissed. Where neither party appears when the suit is called on for hearing, the Court may make order that the suit be dismissed."
16. Rule (8): "Procedure where defendant only appears. Where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the Court shall make an order that the suit be dismissed, unless the defendant admits the claim or part thereof, in which case the Court shall pass a decree against the defendant upon such admission, and, where part only of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder."
17. Rule (9): "Decree against plaintiff by default bars fresh suit.--(1) Where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside and if he satisfies the Court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit.
(2) No order shall be made under this rule unless notice of the application has been served on the opposite party.
(3) The provisions of section 5 of the Limitation Act, 190$ (IX of 1908), shall apply to applications under sub-rule (1)."
18. 'Now as the facts have been found, and which are not in dispute in the present revision, to earlier suit there was impleaded Anwar Ali Baig the predecessor-in-interest of respondents 3 to 7. The plaintif was the same and identical. When on 12-6-1967 the suit was called for hearing, the plaintiff and Anwar All Baig were absent. The suit was dismissed under rule 3 of Order IX, C.P.C. Rule 4 enables the Court A to restore the suit. As no application was moved, the suit was not restored to the original number. The present suit is not barred under the provisions of rule 4. The point No.1 is disposed of accordingly and in favour of the petitioners.
19. ' As regards the second contention of the learned counsel for the petitioners that the suit is not hit by principles of res judicata, it is admitted that the petitioners filed Writ Petition No.577 of 1969 in the then High Court of West Pakistan, Karachi Bench, Karachi against the respondents Nos. 1 and 2 and Anwar Ali Baig, predecessor-in-interest of the respondents 3 to 7. The main ground on which this Resolution was sought to be challenged by the petitioners in that writ petition was that it had been passed without the necessary quorum prescribed under rule 10(6). The Commissioner, however, dismissed the appeal as being out of time. The Writ Petition was dismissed in limine by order. dated 21-10-1969. The petitioners preferred petition for special leav to appeal No.K-133 of 1969 before the Supreme Court. The leave I appeal was also refused. It is advantageous to produce the concludir para. which reads as under:- "The same arguments have been advanced before us in suppc of this petition but we are of the view that the petition and Article 98 of the Constitution was clearly not maintainable, the petitioners had no legal right to the grant of the law which they could assert by way of a petition under the said Article. If they have acquired any right of easement of light and air, their appropriate remedy lies by way of a suit for the establishment of such a right. This petition is, accordingly, dismissed."
20. ' The trial Court framed six issues. The first issue is whether the suit is not maintainable in law being barred by res judicata. The second issue is whether the suit is barred by sections 4 and 9, C.P.C. read with section 88 of Sind Peoples Local Government Ordinance, 1972. On both these issues the findings were against the petitioners. The petitioners also did not succeed before the VIIth Additional District Judge, Karachi, who held that the suit is barred by res judicata.
21. ' In my view the litigation must be deemed to have concluded by the order of the Hon'ble Supreme Court dated 19-8-1970 by which it was held that the Resolution had been passed in accordance with the West Pakistan Municipal Committees (Property) Rules, 1962. The grant of the land to Anwar Ali Baig had been approved by the Commissioner. The petitioners had filed the present suit to challenge the Resolution on the same ground, was barred by section 11, C.P.C. No exception can be taken to the judgments of Courts below.
22. ' The disputes were determined in the writ petition. The writ was decided on merits. The Hon'ble Supreme Court refused to grant leave to appeal. The petition for leave to appeal was dismissed in limine.
23. ' In the case of Atiqur-Rehman and others v. Muhammad Ibrahim and another 1984 SCMR 1469 Hon'ble Supreme Court observed as under:- "The learned counsel for the petitioners in support of this petition for leave to appeal has argued that the order dated 14-3-1983 passed by this Court had left scope for the petitioners to challenge the order of the trial Court, dated 21-6-1980 through a revision petition notwithstanding the order of dismissal of the writ petition by the High Court directed against the said order which was not interfered with by this Court. In this part of this connection, he relied upon the concluding part of this Court's order, wherein it was observed:- "We however, agree, though for reasons of our own as expressed above, that both the writ petition and the Intra-Court Appeal had been rightly dismissed."
24. ' It is further submitted that as proper remedy for challenging the order, dated 21-6-1980 was available under the Civil Procedure Code, therefore, the petitioners could file a revision under section 115 of the C.P.C., despite the earlier dismissal of their writ petition.
25. ' We regret we cannot agree. The High Court, in its order dated 6-12-1981, dismissed the Writ Petition No.8124 of 1980 on the merits, holding that the order of the trial Court, dated 21-6-1980 to the effect that the suit could revive was a legal and valid order. The above order was upheld by 'the Intra- Court Appeal Bench and also by this Court, though for the reasons different from those which found favour with the learned Judges of the High Court could not re-open the same matter, now brought before him through a revision petition, which had been fully dealt with and disposed of when it came before the Court earlier under the writ jurisdiction. The learned Judge in the High Court was plainly right that the attempt being made to re-open the same matter all over again would be barred by the general principles of res judicata."
26. ' The dictum laid down in the above decision is applicable to the facts of this case.
27. ' From the foregoing discussion, I am of the view that the subordinate courts have decided the issue on sound principles of law.
28. ' In the result the Revision Application No. 263 of 1982, is, therefore, dismissed with no order as to costs.