1. C.M.A. No,5214 of 1996.
' By this C.M.A. Defendant No,1 seeks an order for rejection of the Plaint in this suit for Declaration and Permanent Injunction for the reasons that the Suit is barred by the principle of res judicata; that dismissal of Suit No,101 of 1985 does not furnish any cause of action for filing the suit for same relief as the suit is hopelessly time-barred and that it is not maintainable for the reasons that the plaintiffs are still continuing the proceedings of Suit No,101 of 1985 and after the dismissal of High Court Appeal No,21 of 1996 they have filed Petition for Leave to Appeal No,312 of 1996 before the Supreme Court of Pakistan.
' In the earlier suit filed by the plaintiff against the defendant No,1 they have sought the reliefs in the following terms:-- "(a) Declaration that the said wall, which is located towards the flat of the defendant is located on the land exclusively belonging to the plaintiffs, co-owners and the said wall exclusively belongs to the plaintiffs co-owners and that the defendant has no right, interest or claim of any kind of whatsoever either on the said land or on the said wall.
(b) Declaration that the plaintiffs, co-owners have sole exclusive and full rights to raise the said will belonging to the plaintiffs as owners thereof in any manner they like.
(c) Order of permanent mandatory injunction restraining the defendant his relatives, family members, agents, employees, servants, workers or any person or persons claiming through or under his, from trespassing into the land of the plaintiffs co-owners raising or demolishing the said wall of the plaintiffs co-owners and/or to open any door or window opening in the land of the plaintiffs co-owners and/or to use the land of the plaintiffs/co-owners as an access or entrance to the flat of the defendant.
(d) Order the defendant to remove the illegally constructed wall on the land of the plaintiffs and to remove the doors and windows opened illegally in the said wall.
(e) Rs,100,000 by way of liquidated damages against defendant.
3. Precisely, their grievance was that the defendant had trespassed on their premises including a wall of 84 feet built exclusively on their own land and commenced construction of a wall and illegally attempted to open four doors in the said wall and while opening four doors therein they attempted to use the same for access from their flat into the plaintiffs' land without any lawful right.
During the course of evidence a serious exception was taken to endorsement in the P.T.D. In respect of the flat transferred to the said defendant by the Settlement Authorities after the repeal of Settlement and Evacuee Laws. The said suit was dismissed after recording evidence of the parties on 18-10-1995 and the High Court Appeal preferred from the Judgment and Decree was dismissed in limine.
4. In the present Suit after having amended the Plaint, plaintiffs, seek the following prayers:-- "(a) That it be declared that further endorsement, dated 21-9-1976 on the site plan, issued by the Deputy Settlement Commissioner, Karachi to form part of P.T.D., dated 30-11-1962, was illegal, ultra vires and void ab initio, as having been passed without notice and affording an opportunity of hearing to the transferees of Plot No, PR-2/3/2 and after the repeal of evacuee laws effective July, 1974, under the Evacuee Properties Displaced Laws (Repeal) Act, 1975.
(b) Permanent Injunction, restraining the defendant No,1 from using the four doors opened in the wall illegally constructed by him on the plot of the plaintiffs for ingress and agrees and as an access to the passage forming part of the property of the plaintiffs constructed on Plot No,PR- 2/3/2, Preedy Street, Karachi and exclusively owned by them and further td permanently close down the said doors."
5. With regard to the prayer for declaration relating to endorsement, dated 21-9-1976 on the site plan issued by the Deputy Settlement Commissioner Karachi forming a part of P.T.D., dated 3-11- 1962 in favour of the defendant, it is urged that this issue was raised and finally heard and decided by this Court against the Plaintiffs as would be reflected in paragraphs 14 to 17 of the judgment in the previous suit. On these premises, it is urged that the relief of declaration is barred by res judicata as substantially the same question was agitated by the Plaintiffs and decided against them. It is further contended that the plaintiffs have no right, interest or legal character to the property transferred in favour of the defendants. This relief is barred by section 42, C.P.C., as the declaration sought for does not tend to show that any right or interest as to property of the Plaintiff is invaded by the defendants. Reliance is placed on Alvi Sons v. Government of East Pakistan (PLD 1968 (sic) 222); M.A. Naseer v. Chairman Eastern Railway (PLD 1965 SC 83) and Abdul Rehman v.
Ameer Ali Shah (PLD 1978 Lah. 113).
6. Perusal of the averments in this Plaint in juxtaposition to the averments made in the previous suit and the judgment recorded by me leads to the conclusion that not only this issue was finally heard and decided but it also confers no right, interest or title to seek a declaration in their favour and this remedy is barred under section, 11, C.P.C. Read with section 42, of the Specific Relief Act.
7. With regard to the prayer for permanent injunction, Mr. Khalilur Rehman, learned counsel for the plaintiff referred to paragraph 8 of the Plaint reflecting the events earlier dealt with in para. 7 of the earlier Plaint and attempting to show that fresh developments during the pendency of the previous suit as well as after the decision of the said suit do confer a valid cause of action on the plaintiffs to seek a remedy of permanent injunction with regard to the opening of four doors in the wall constructed by the defendants and the alleged threat to construct shops on the piece of land lying in front of the flat of the defendants. Suffice to say, this issue has also been elaborately dealt with in the previous suit while deciding issues Nos. 5 to 7. The drafting of the amended Plaint gives an expression that only the facts have been elaborated and highlighted with a view to create a fresh cause of action which, in fact, is reiteration of the earlier averments finally heard and decided by this Court. No, fresh or distinct cause of action seems to have accrued to the plaintiffs after the decision of the previous suit. Even otherwise, no relief has been sought with regard to the alleged construction of shops on the open piece of land whereas the relief with regard to raising construction of a wall and the right of ingress and egress was agitated earlier and discarded by this Court on appraisal of evidence. c This relief is, therefore, hit by the principle of res judicata which bars the plaintiffs from raising same issue of fact or seeking a remedy which was earlier sought but not granted.
8. For the aforesaid facts and reasons, I am inclined to the view that the plaint is hit by Order 7, Rule 11, C.P.C. And the Suit is barred by law. In the circumstances, I grant C.M.A. 5214 of 1996 and reject the plaint. With the rejection of the plaint C.M.A. 5153 of 1997 for temporary injunction is rendered infructuous and stands accordingly disposed of.