' MUHAMMAD YUNUS SURAKHVI, J.---This appeal, by way of leave of the Court, it directed against the judgment and decree passed by the High Court on 17-4-1998, whereby the appeal filed by the appellants, herein, was dismissed.
2. The brief facts, giving rise to the present appeal, are that appellants Muhammad Hussain and Muhammad Sadiq, sons of Alam, filed a declaratory suit in the Court of Sub-Judge Mirpur on 14-12- 1988, against the defendants Jewan and others, claiming therein that suit land was owned by plaintiffs-appellants, defendant No,3 and pro forma-defendants. Alam deceased sold out 9 Marlas of land from Survey NO.230 exclusively while Bagga and Alam jointly sold out 17 Kanals, 13 Marlas from Survey Nos. 254, 197, 298, 256, 301 and 455, situate in village Rakhyal, Tehsil Mirpur. It was averred in the plaint that Alam has sold total land measuring 9 Kanals, 5-1/2 Marlas and rest of his share comes down to 1 Kanal, 5 Marlas and 5-1/2 Sarsahis. The mutation of this land has been sanctioned in the name of plaintiffs, defendant No,3 and Mst. Resham and others, the pro forma- defendants. The share of defendant No,3 from the land inherited from Alam comes to 2/9th measuring 5 Marlas and 5-1/2 Sarsahis of land but he sold out 1 Kanal of land from the total land of 3 Kanals, 17 Marlas, without any sale .Consideration through a registered sale-deed, dated 12-7- 1978, in favour of defendant No,2. In this view of the matter the defendant No,3 has sold the land in excess of his share without any lawful right and sold further land of 3 Kanals, 6 Marlas from Survey No,218-Min, which was in the ownership of plaintiffs and pro forma-defendants through a sale- deed, dated 11-4-1981 in favour of defendant No,1 without any lawful right and without any sale consideration. It was averred in the plaint that from the execution of the aforesaid sale-deed the right of plaintiffs and the pro forma-defendants have been adversely affected. Thus, the sale- deeds be declared as null and void to the extent of their shares. The plaintiffs also prayed that a decree for possession may also be passed in their favour and in favour of pro forma-defendants against the real defendants.
3. The trial Court, after framing various issues, arising out of the pleadings of the parties and hearing the parties decreed the suit of the appellants vide judgment and decree, dated 29-9-1990.
Before the Sub-Judge it was contended on behalf of defendants that the subsequent suit filed by the present appellants. Muhammad Hussain and others, the heirs of Mst. Qaiser Bibi and Muhammad Khan was barred by the principle of res judicata; however, the learned Judge repelled the argument and decreed the suit of the plaintiffs. Respondent No,1 preferred an appeal in the Court of District Judge, Mirpur which was partly accepted and it was held that Jewan Khan, defendant, has specifically alleged in the written statement about the application of principle of res judicata on the present case and also produced the copy of decision, dated 22-12-1984. From the perusal of aforesaid decision it is proved that Mst. Qaiser Bibi and Muhammad Khan had filed a suit which was dismissed on account of non-prosecution while the present suit had been filed by the plaintiffs who are heirs of Mst. Qaiser Bibi and Muhammad Khan. Therefore, in the former suit the plaintiffs were arrayed as pro forma-defendants and if they had any grievance against that order of dismissal of the suit, they should have filed the application for the restoration of the suit instead of filing the fresh suit. So, under law they cannot file the fresh suit. Thus, the impugned judgment of the trial Court was set aside and it was held that heirs of Mst. Qaiser Bibi and Muhammad Khan, who were arrayed as pro forma-defendants in the former suit, were not entitled to file the suit again and the suit to their extent stood dismissed.
4. Feeling aggrieved by the aforesaid judgment and decree of the learned District Judge two appeals were filed in the High Court, one by Jewan, respondent No,1, and the other by heirs of Mst.
Qaiser Bibi and Muhammad Khan. The High Court dismissed both the appeals by a consolidated order and it was observed that the judgment and decree passed by the District Judge were quite in accordance with law vide its judgment and decree, dated 17-4-1998. It is the aforesaid judgment and decree, dated 17-4-1998, whereby the appeal of appellants was dismissed by the High Court to their extent which is the subject of present appeal.
5. It was vehemently contended by Mr. Liaqat Ali Khan, the learned counsel appearing on behalf of appellants, that it was wrongly held by the District Judge that Order 9, Rule 9, C.P.C. Would be applicable in the subsequent suit filed by the heirs of Mst. Qaiser Bibi and Muhammad Khan and similarly the provisions of section 11 will also be attracted. Therefore, the decree passed by the Sub- Judge was wrongly set aside to the extent of heirs of Mst. Qaiser Bibi and Muhammad Khan, the present appellants. The High Court vide the order impugned in the present appeal also concurred with the view of the District Judge and observed that provisions of Order 9, Rule 9, C.P.C. Would apply and the subsequent suit to the extent of heirs of Mst. Qaiser Bibi and Muhammad Khan would not be maintainable. In this view of the matter, by concluding its judgment, both the appeals, one filed by Muhammad Hussain and others, the present appellants, and the other filed by Jewan, were dismissed by the High Court.
6. We have heard the learned counsel for the appellants and perused the impugned judgment of the High Court. For the resolution of the point involved in the case Order 9, Rule 9, C.P.C. May usefully be reproduced:- "9. (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)
(3)
7. Under this rule where a suit is dismissed for default it cannot operate as res judicata. However, the plaintiff is, under the specific provisions of this rule, barred from bringing a fresh suit on the same cause of action. The bar under this rule applies only to the plaintiff. If the suit is dismissed for the default of plaintiff, any person who has been arrayed as pro forma-defendant in the suit may bring a suit on the same cause of action.
8. In a case reported as Fateh Chand Khanna v. Shankar Khushi Ram and others AIR 1963 Pb. 401 the facts were that F had mortgaged the suit property in favour of R, S and P. R filed a suit for recovery of mortgage debt making S and P as defendants. It was dismissed under Order 9, Rule 9 for default of R. Subsequently, S and P brought the suit in which the preliminary objection that the suit was erred under Order 9, Rule 9 was negatived. In revision it was contended that as the interests of S and P who were pro forma-defendants in the first suit were identical with those of R, they should be treated as plaintiffs in that suit: "Held that if the contention was allowed to prevail, then Order 1, Rule 10 would become wholly redundant. A pro forma-defendant, so-called, remains a defendant for all purposes and if it were not so the legislature would not have provided that he can apply to be transposed as a plaintiff. Moreover, he can whether remain neutral or support the plaintiff or the contesting defendant. The mere fact that his interests are identical with those of the plaintiff will be of no consequence. It was further held that plaintiff according to all accepted notions is a person who comes to Court to seek some redress against some persons and is not a person who is merely dragged to Court to the action or is merely added as a defendant to give effective redress to the plaintiff. The mere fact that the ultimate decision on the merits will bind the pro forma-defendant as well will be of no consequence in determining his status as a plaintiff or a defendant.
9. The reliance was placed on a Full Bench case titled Gita Ram v. Prithvl Singh AIR 1956 Pb. 129 (FB).
10. So, we have reached the conclusion that the predecessors-in-interest of present appellants impleaded as pro forma-defendants in the tamer suit were not precluded under Order 9, Rule 9, C.P.C. To bring a fresh suit.
11. For the afore stated reasons, we accept the appeal of the appellants, herein, who are heirs of Mst. Qaiser Bi and Muhammad Khan by setting aside the impugned judgment of the High Court and that of the District 'Judge and restore the judgment and decree passed by the Sub-Judge Mirpur without any order as to costs.