1. MUHAMMAD AFZAL ZULLAH, C.J.---Leave to appeal has been sought by the plaintiff in a suit for declaration; against the dismissal by the High Court, of his Civil Revision. The petitioner has lost throughout except for a marginal relief by the High Court that the petitioner has been saved from paying compensatory costs on account of his claim being vexatious and false in nature. This benefit has not been allowed on any finding of fact--to the contrary it has been allowed on technical ground with regard to the application of section 35-A, C.P.C. In the Province of N.-W.F.P.
2. As has already been indicated on account of the nature of the claim of the petitioner it is not necessary to give once again all the details of the litigation to which he has involved the other side for decades, except to make reference to an earlier judgment of this Court (Page 221 of the P.B.), dated 19th April, 1973; whereby and whereunder the petitioner finally lost the first round.
3. In the second round, the failure of the petitioner again is mainly due to decisions which previously culminated in the judgment of the Supreme Court by application of principle of res judicata as well as the provisions contained in Order II, Rule 2, C.P.C.
4. Learned counsel, however, against such formidable odds, has tried to make out a case on the argument that the question sought to be raised in the present suit, though was also raised in the previous suit, it was not then decided. The basis of the claim now being made are two titled documents said to have come into existence during the previous century. They admittedly were, as stated by the learned counsel, used as additional support for the prayer and relief in the previous litigation. But, as argued by him, they provided an alternative to the claim of ownership through prescription. Thus, learned counsel further explained, the previous litigation was based on two-fold claim. One, based on influx of time and secondly, based on title deeds. Giving the background of the plea now raised by the learned counsel that the questions relating to title deeds were not decided in the previous suit, learned counsel stated that the trial Court in the first round did not decide this issue and so remained the position upto the Supreme Court. Therefore, the subject- matter of the present suit, he argued, could not be considered as having been raised and decided in the previous suit. Accordingly, as argued, he contended, it is neither a case of res judicata nor the provisions of Order II, Rule 2, C.P.C. Are attracted.
5. The matter is not so simple as stated and projected by the learned counsel. The claim on the basis of the so-called title deeds was noticed by this Court in the earlier case as follows:- '
6. "Learned counsel also argued in the alternative that since the inception of the original mortgage the petitioners had acquired by sale the respondents' equity of redemption in half of the land and had also obtained perpetual lease in respect of the other half, thereby foreclosing the petitioners' equity of redemption in the entire (and. No specific issue was claimed on these points and it is too late to permit the learned Counsel to canvass them at this stage:'
7. Earlier it was observed `throughout the litigation the main controversy between the parties remained confined to the question whether as alleged by the petitioners the respondents' equity of redemption had become extinguished by prescription. The petitioners' claim as laid in the trial Court was that the mortgage in question was created by the respondents' ancestors Madat Shah and his brother sometime prior to 1890 in favour of Munira and Faqira which had continued ever since. But this was belied by------------.--- Thus, it would appear from the previous judgment of this Court as also the proceedings in the first round of litigation that the petitioner had for all practical and legal purposes abandoned the claim before the trail Court in regard to the alternative basis; namely, the title deeds. A possibility cannot be excluded, that the two pleas being conflicting at least in some respects, the petitioner's side intentionally did not pursue the. Matter with a view to get it decided otherwise too.
8. After hearing the learned counsel we are satisfied that this new plea is frivolous and the fresh litigation has been started only to counter-balance the frustration suffered by the petitioner in the loss of the previous litigation. This is not a fit case for grant of leave to appeal on merits or otherwise. Therefore, the same is refused.