1. I have heard the learned counsel .Certain things are self-evident. In the first place, Suit No.1631 of 1991 was pending before the Vth Senior Civil Judge, Karachi East, when the respondent No.1 filed a Constitutional Petition in this Court bearing No.1439/91, apparently covering bulk of the grounds in the field occupied by his then pending suit. While the suit was still pending the Constitutional petition was dismissed as withdrawn. Later, the said suit was allowed to be withdrawn as well but with permission to file a fresh suit. Such fresh suit namely, 1855 of 1991 was subjected to an order of rejection of the plaint as the learned Civil Judge found that it was hit by the rule of res judicata, a finding which has been reversed in appeal, giving rise to this revision application.
2. Now it is obvious that during the pendency of the referred earlier suit a Constitutional petition, between the same parties and substantially covering the claim in the suit, could not be routinely filed in the face of the principle of res sub judice and the Constitutional petition may thus have been liable to be stayed (section 10, C.P.C.). Even so, the petition was dismissed as withdrawn without recording any finding against the respondent No.1 (petitioner there). The legal position, however, remains and that is that such an improperly filed Constitutional petition, unless decided earlier on merits and thereby attracting A the doctrine of res judicata (section 11, C.P.C.) could not have reflected on the pending suit, which apparently was competently instituted. As it turned out, the suit itself was later allowed to be withdrawn with permission to file a fresh one. The instant proceedings, therefore, instituted upon withdrawal, would, apparently, carry no bar of res judicata.
3. This, however, may be so only if the facts have come to transpire in the same chronological order as discussed.
4. In such circumstances, the best order in the case should be to uphold the order of reversal and remand in the appeal passed by the learned District Judge but at the same time leave the question of res judicata open to be finally decided by the learned Civil Judge in the event facts, upon a closer B examination of the state of pleadings or any other material, are found to be different either on the existing pleas or any other pleas that may lawfully hereafter be advanced.
5. Such order is passed with the consent of the learned counsel present' but while the suit would remain pending the learned Civil Judge shall be within his powers to regulate the interlocutory proceedings including the C consequence(s) of the permission granted here for the respondent No.1 to appear in the relevant examination and the situation ensuing thereupon. S.Nos.1 and 2 disposed of