This revision petition arises out of a suit for declaration and permanent injunction filed by the present petitioner on 3-8-1991 in the Court of Civil Judge, Lahore. Mst. Matlooban petitioner No. 1 claimed that she was widow of Mahmood Khan deceased while Mst. Aamna Mahmood, petitioner No. 2 claimed that she was daughter of the deceased and that respondents Nos.l and 2 were not the legal heirs of the deceased. Respondents Nos. 1 and 2 were duly served but they did not file any written statement in the suit. Instead they filed an application under Order 7, Rule It of the C.P.C. for rejecting the plaint on 15-9-1992. The said application was allowed by the trial Court vide the order dated 8-11-1992 and subsequently the plaint filed by the petitioner was rejected. While rejecting the plaint, the trial Court relied on two orders dated 5-5-1992 and 18-7-1992 whereby the petitioner's prayer for being impleaded as LRs of Mahmood deceased (in a suit filed by the deceased) was disallowed. The appeal filed by the petitioner was dismissed by the appellate Court vide the order dated 13-6-1993 by the Addl. District Judge.
2. The petitioners' learned counsel submits that the Courts below have erroneously applied the provisions of section 11 of the C.P.C. while rejecting the plaint. He explains that the earlier decision made by the Civil Court on the petitioners' application to be impleaded as L.Rs. of. the deceased could not operate as res judicata in a properly filed civil suit. He further submits that for purposes of deciding the application flied under Order 7, Rule 11 of the C.P.C., the Court had to confine itself to the averments made in the plaint and could not travcl to the other material. In this connection, he placed reliance on the judgment in the case of Mst. Shamim Akhtar Qureshi v. Mst. Najma Lakhwera and others (PLD 1992 Lah. 205). Lastly, he submits that the orders dated 5-5-1992 and 18-7-1992 were challenged by the petitioners by means of Writ Petition No. 8374 of 1992 which was dismissed with the observation that the petitioners had 'a remedy before the Civil Court in the civil suit filed by them.
3. On the other hand, the respondents' learned counsel submits that respondents Nos. 1 and 2 had submitted a detailed written statement in the Court on 10-2-1992. He further submits that the petitioners' cause of action was based on the ground of being legal heirs of the deceased Mehmood Khan. However, in view of the earlier decision of the Civil Court in the suit for partition filed by Mst. Shakeela, respondent No. 1, the petitioners were left with no cause of action. He adds that the trial Court had framed an issue on the petitioners' application to be impleaded as legal heirs of the deceased and then recorded findings of fact that-they were not legal heirs of the deceased. The said order was challenged by the petitioners through revision petition which was dismissed by the learned Additional District Judge vide his judgment, dated 18-7-1992. The petitioners' writ petition was dismissed in limine and resultantly the orders passed by the Courts below were upheld. Hence the same question could not be reagitated in the suit. In support of his contentions he placed reliance on the following judgments: (i)Muhammad Chiraghuddin v. Province of West Pakistan (1971 SCMR 447).
(ii)Shah Noor Studios v. W.Z. Studios (1980 CLC Karachi 433).
(iii)Ghulam Rasool v. Hamida Begum (PLD 1992 Lahore 363).
(iv)Iqbal Begum v. Farooq Inayat etc. (PLD 1993 Lahore 183).
(v)Muhammad Azarn Khan v. Rehmat Ali and others (PLD 1993 Lahore 836).
4. Admittedly, the earlier order dated 5-5-1992 was an interlocutory order passed on an application filed by the petitioners to be impleaded as legal A heirs of Mehmood Khan (deceased).. Therefore, the said order even if maintained by the higher Courts could not operate as res judicata in the suit subsequently instituted by the petitioners. An indication in this behalf was made in the order dated 12-9-1992 passed by this Court in Writ Petition No. 8374/92. The relevant portion of the order reads as under:- "As pointed out, a separate suit on the subject is also pending in the civil Court, this being the position, the petitioners are not remediless."
Meaning thereby that the petitioners (who are claiming to be the legal heirs of Mehmood Khan deceased) could pursue their remedy in the civil suit instituted by them. The argument of the learned counsel that after an adverse decision on the petitioners' application to be impleaded as L.Rs. of the deceased, the petitioners were left with no cause of action was devoid of force. The earlier decision has no binding effect on the present suit which has to be finally decided on merits in accordance with the law and the evidence of the parties. It cannot be said at this stage that the petitioners have no cause of action merely because they were not held to be the L.Rs. of Mehmood Khan (deceased) and, 19 therefore, not impleaded as parties to the earlier suit. Since the petitioners were not impleaded as parties to the previous suit, they were neither bound by the judgment and decree passed in the said suit nor the same could operate as res judicata in the present case. A decision of the Court under Order 22, Rule 5 of the C.P.C. that a person is or is not the legal representative of the deceased party is not conclusive or final so as to operate as res judicata in a separate civil suit filed by a party claiming to be the legal representative of the deceased. In the case of Suraj Bali Singh and another v. Musammat Parbhuraji (169 Indian Cases 798), it was held that the determination of the question whether a certain person is (or is not) the legal representative of a deceased party in proceedings under Order 22, Rule, 5 of the Code of Civil Procedure does not operate as res judicata so as to preclude the same question from being reagitated in a separate suit. A contrary note was struck in the case of Jai Narain and others v. Ram Deo and others (8 Luck 477) in which it was held that the principle of res judicata was applicable to a decision made under Order 22, Rule 5 of the C.P.C. and that the same question could not be reagitated in. another suit. However, the latter judgment was overruled in the Full Bench case of Zalim and others v. Babu Tirlochan Prasad Singh (AIR 1937 Oudh 220). In the said case a Division Bench had referred the following question for decision by a Full Bench:- "Does the determination of the question whether a certain person is or is not the legal representative of a deceased party in a proceeding under Order 22, Rule 5, Civil Procedure Code, operate as res judicata so as to preclude the same question from being reagitated in a separate suit? Does the ruling reported, in 8 Luck 477 lay down the law correctly?"
The said question was answered in the negative and it was held that the law was not correctly laid down in the case of Jai Narain and others v. Ram Deo and others (8 Luck 477). The operative part of the judgment reads as under:- "After a careful consideration of the case-law on the subject and the trend of authorities in the various High Courts, we are clearly of opinion that the answer to the question referred to the Full Bench should be in the negative and we hold that the determination of the question whether a certain person is, or is not the legal representative of a deceased party in a proceeding under O. 22, R. 5, Civil P.C. does not operate as res judicata so as to preclude the same question from being reagitated in a separate suit and we decide that the ruling reported in -8 Luck 477 does not lay down the correct law on the subject."
In the case of Daulat Ram v. Mst. Meero and others (AIR 1941 Lahore 142), it was held that a decision under Order .22, Rule 5 of the C.P.C. did not have the effect of conferring any right to heir ship or to property, Therefore, such a suit did not operate as res judicata to another suit in which right to property was based on the ground of being legal heirs of the deceased. This judgment was based on the earlier decisions reported as 28 All 109; AIR 1938 All 412 and AIR 1934 Lah. 465. In the case of Kala Chand Banerjee v. Jagannath Marwari and another (AIR 1927 PC 108), it was held that a person who had applied to the Court to be impleaded as a party but was refused was not bound by the decision in the suit. He could competently bring a separate suit on the basis of his claim of being legal heir of the deceased.
6. In the present suit, both the parties will have full opportunity to adduce their evidence, in support of their respective claims and thereafter the Court shall finally adjudicate upon the question as to whether the petitioners are the legal heirs of Mehmood Khan (deceased) or not. The Courts below appear to have acted illegally and with material irregularity in treating the petitioners' suit as being barred by res judicata.
7. 1 need not discuss the judgments cited by the learned counsel for the parties which mostly relate to the question as to whether the Court has to confine itself to the contents of the plaint while passing an order under Order 7, Rule 11 of the C.P.C.
8. For the foregoing discussion, the impugned orders are set aside and the case is remitted to the trial Court for decision of the suit on merits in accordance with law.