' This appeal is directed against the judgment and decree passed by District Judge, Bagh on 25-2- 1991, whereby the judgment and decree passed by Sub-Judge, Bagh, dated 10th July, 1988 is confirmed.
2. The facts giving rise to the litigation between the parties are that respondent Havildar Muhammad Saleem Khan secured an allotment of a piece of land measuring 4 Marlas out of Number Khasra 396 situated in Tehsil and District Bagh which stands entered in his name through mutation attested on 3-12-1981. The appellants Muhammad Yasin Khan and others filed a suit for the cancellation of the mutation before Sub-Judge Bagh, alleging therein, that the land measuring 12 Marlas out of Number Kharas 396 situated in Bagh has been obtained by the appellant through a sale-deed registered on 12-3-1978 and through another sale-deed he has purchased 3 Marlas of land out of Number Khasra 766/393 from one Mr. Ghulam Qadir. The appellants had stated that land which he has purchased has been brought under construction and .a multistorey building has been construted upon it. The appellants alleged that respondent No,4 has illegally got an order of the Government passed in his favour on 28-11-1981 and the Mutation No,652 has been attested on the basis of this Government order. The Government order as well as mutation, is alleged by the appellants, to have been obtained secretly and fraudulently, while there is no space existing on the spot.
3. Respondents Nos.1 to 3 has cortroverted the allegations of the appellants through the written statement, filed before the Sub-Judge Bagh on 6-2-1988 and have defended the grant of land through Government order dated 28-11-1981. The Mutation No,652 attested by Tehsildar Bagh is stated to be legal and justified. Respondent No,4 instead of filing a written statement had requested through an application dated 10-8-1987 dismissal of suit under Order 7, Rule 11, C.P.C. It has been revealed by respondent No,4 that a civil suit earlier filed by the appellants before Sub- Judge Bagh for cancellation of impugned Governnient order and mutation was dismissed by the Court on 30-6-1987.
4. The learned Sub-Judge was pleased to dismiss the suit of the appellants on 10-7-1988 on the ground that as the claim of the appellants was earlier rejected through a decree of Civil Court, the appellant has no cause of action. On appeal by the appellant before the District Judge Bagh, the order and decree of Sub-Judge was confirmed and appeal was dismissed through an elaborative order of the District Judge dated 5-2-1991, hence instant appeal.
5. I have heard the learned counsel for the appellants as well as respondents 1 to 3 and have also heard respondent No,4 who is present in person. Respondent No,4 has placed an application on the file alongwith the copies of the orders of the different Courts pertaining to the subject-matter in dispute.
6. Arguing the case, the learned counsel for the appellants has challenged the legality of the orders of the subordinate Courts on the ground that a civil suit cannot be dismissed under Order 7, rule 11 and res judicata cannot be applied unless the suit -is regularly tried after obtaining the written statement of the defendant and framing the issues. He has relied upon 1990 SCMR 1630 and 1677, PLD 1986 SC(AJ&K), 1986 CLC 27 and 1691, 1980 SCM R 469. As against it, the learned counsel for the respondents Nos.1 to 3 controverting the arguments of the counsel for appellants has defended the orders of the subordinate Courts and argued that he Court is competent to reject a plaint, if it is found that plaintiff does not have a cause of action to file a suit or if the suit is found to be barred by any law or if it is found to be vexatious or malicious. He has relied upon PLD 1977 SC 220.
7. In order to have the true perception of the objections taken to the legality of the order passed by Sub-Judge and confirmed by District Judge Bagh, the provisions of the Order 7, Rule 11, C.P.C. Are reproduced:- "11. Rejection of plaint:-- The plaint shall be rejected in the following cases:--
(a) where it does not disclose a cause of action;
(b) where the relief claimed is under-valued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court fails to do so; and
(c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed the Court, fails to do so;
(d) where the suit appears from the statement in the plaint to be barred by any law."
The examination of the above provisions, makes its clear that the plaint cannot be rejected under Order 7, Rule 11 unless it manifestly discloses that no cause of action is made out, and similarly, the res judicata also cannot be assumed by the Court. However, it is the duty of the parties coming before the Court, as well as the Advocates who represent the parties, to place before the Court all the facts necessary for the disposal of the claim. It will be most unfair and treacherous if the parties suppress the antecedents of the dispute brought before the Court. Under such circumstances, if it is brought to the notice of the Court, whether through an application, written statement or otherwise that the plaintiff has suppressed the facts which if pleaded in the plaint, he would have been out of Court for having no cause of action, the facts later brought to the notice of the Court shall be deemed as a part of the plaint as if they were already in existence and it was the duty of the plaintiff to have pleaded these in the plaint, his mischief of not pleading the true facts cannot exonerate him from the operation of law. The instant case is one of such instances, where the Court should resort to this course and it should not only invoke its powers meant to meet the eventuality, but should take a serious view of the omission.
8. Respondent No,4, Havildar Muhammad Saleem who himself argued his case has placed the judgment of the High Court passed in a Writ Petition No,44 of 1982, dated 26-1-1983 on record. The appellants who were 1 petitioners in the writ petition had challenged the legality of the impugned Government order dated 28-11-1981. Respondent Havildar Muhammad Saleem was one of the respondents in the case. 'he writ petition was dismissed holding that 'the appellants had not come with clean hands in the Court. They were not entitled to purchase the ownership of the disputed portion of the land from lessess'. The appellants were left to approach to the proper forum.
9. A copy of the judgment of the District Judge Bagh dated 23-4-1988 has also been placed on the file of the Court wherein an appeal filed against the judgment and decree of Sub-Judge Bagh dated 30-6-1981 regarding the subject-matter in dispute was dismissed. A copy of the order of the High Court dated 29-5-1990 has also been placed on the file of the Court, whereby appeal against the above judgment and decree of District Judge Bagh is dismissed for non-prosecution. The learned counsel for the appellant when confronted with these judgments has no explanation, except that the facts which are now pleaded in the suit out of which this judgment has arisen were not in their knowledge and were not pleaded in the cases earlier disposed of by the Courts.
Learned counsel submitted that the res judicata under such circumstances does not apply.
10. After going through the track record of the case, I have no doubt in my mind, that the suit before the Sub-Judge was an outcome of a malicious and vexatious design of the plaintiffs, who have deliberately suppressed the facts from the Court. The learned Sub-Judge, while passing the order was justified in holding that the appellants/plaintiffs had no cause of action. Besides the absence of cause of action, the trial Court could not proceed with the trial of the suit for the reason of the suit being barred by section 11 of the C.P.C., as the matter between the parties was contested before the competent forum and stood decided by the District Judge as well as by the High Court.
The contention of the learned counsel for the appellant, that the facts which they have now pleaded in the suit, were not in their knowledge and were not pleaded in the earlier suit, is not acceptable to bring him out of mischief of res judicata. Explanation (iv) of section 11, C.P.C. Expressly provides that "any matter which might and ought to have been made a 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".
11. It was for the appellants/plaintiffs to know the full facts and plead them as a whole before the Court, if they have failed to do so, the other party cannot be made to suffer for their mistake. The contention of the learned counsel for the appellants that the rejection of plaint under Order 7, Rule 11, C.P.C. Cannot be ordered unless the suit is regularly tried is devoid of force, as, if the Court is satisfied on the basis of material placed before it that the suit is ultimately to fail, why should the Court drag the parties just for the reason that formalities of written statements, issues and evidence should be completed? As stated earlier, if the facts placed before the Court reveal that plaint could not proceed, it must be rejected, notwithstanding the completion of the formalities.
Section 11 of C.P.C. Expressly bars the jurisdiction of the Court in the words "No, Court shall try any suit " The provisions of section 11 are mandatory and the moment the Court is appraised of the fact that subject-matter of dispute is earlier adjudicated by the competent Court between the same parties, the Court seizes to have jurisdiction, shall not try the suit and plaint shall be rejected as barred by law. The result would be the same even after the full-fledged trial. The; references cited by the learned counsel for appellant reported in 1990 SCMR pages 1630 and 1677 are of no help to him. Though in these references, a full-fledged trial was ordered instead of the rejection of the plaint under Order 7, Rule 11 but the record of these cases justified the trial, while the record of their case in hand warrants otherwise. The other cases cited by the learned counsel for appellants are also'of no help to him. In 1980 SCMR 469, the authority cite ;d by the learned Advocate, after discussing the plethora of cases it is held that:-- "Section 11. Civil Procedure Code. 1908 laying down principle of resjudicata---Mandatory---Party to a former suit decided by a Court of competent jurisdiction---Can avoid provisions of section 11 only by taking recourse to section 44, Evidence Act, 1872 on ground of fraud or collusion or by showing previous judgment to be a nullity or non-existent in eye of law such factors being absent, party cannot be estopped from pleading law of res judicata."
12. PLD 1977 SC 220, cited by the learned counsel for the respondent, in support of his contention that the plaint ought. To have been rejected for being barred by the law of res judicata applies with full force in this case. The principle of law enunciated in the case is that:- "The object of the principle of res judicata as suggested by the expression itself is that finality should impart to judicial decisions and if a case is res judicata, it may not be re-opened so as to be adjudged again. In other words once a matter between the parties to a suit or proceeding is decided and the decision has become final either (i) because no appeal lies or (ii) an appeal was taken or (iii) if taken, it was dismissed, none of the parties shall be allowed to canvass the same matter again in a subsequent suit or proceedings between the same parties. But for this curb on litigation it would become interminable , human nature being what is it. As a result of the application of this principle as embodied in section 11 of the C.P.C. All future litigation at al ay length between the parties must proceed on the presumption of correctness of the previous decision."
13. After carefully examining the case, I have come to the conclusion that the appellants have deliberately concealed the earlier facts and litigation between the parties. The suit is in inspired by the vexatious motives with the design of harassing and compelling the respondent for abandoning, his legal claim. Litigation inspired for harassment with unbecoming tricks and tactics by the litigant public, not only squeezes the poor and innocent people, but also scandalizes the Courts by using its process for obtaining their vexatious motives. In view of the circumstances of the case the appeal is dismissed and the appellants/plaintiffs shall pay a cost of Rs,10,000 to respondent No,4 for repeatedly lodging a vexatious claim against him.
14. Before parting with the case, it may be placed on record that it is the duty of the Advocate, being officers of the Court, to carefully examine the briefs and ascertain the full facts from their clients before lodging a case in a Court of law. The Advocates must specifically obtain a verification from the clients before lodging the case, with specific mention of earlier litigation on the subject-matter of dispute. The Advocates are equally responsible, if they take up the briefs without ascertaining the true facts and in such cases, they would be deemed as a party to the vexatious claim. It will be valuable to make reference to illuminating judgment reported in AIR 1977 Supreme Court 2421:-- "It may be a valuable contribution to the cause of justice if counsel screen wholly fraudulent and frivolous litigation refusing to be beguiled by dubious clients. And remembering that an Advocate is an officer of justice he owes it to society not to collaborate in shady actions. The Bar Council of India, we hope will activate this obligation. We are constrained to make these observations and hope that the cooperation of the Bar will be readily forthcoming to the Bench for spendig judicial time on worthwhile disputes and avoiding the distraction of sham litigation such as the one we are disposing of. Another moral of this unrighteous chain litigation is the gullible grant of ex parte orders tempts gamblers in litigation into easy Courts. A Judge who succumbs to ex parte pressure in unmerited cases helps devalue the judicial process."
15. It is hoped that Advocates would keep the high standard of their professional ethics in their mind and help the Courts and litigant public in the noble cause of administration of justice.