' The only issue raised in this petition is that if rejection of plaint in the earlier suit filed by the petitioner operated as res judicata.
2. The facts necessary for the consideration of the proposition can be summarized in these words:- - ' The plaintiff claimed that the demised property a plot described on the face of the plaint was purchased by one Rafique son of Habeeb from the Settlement Authorities; that the plaintiffs on 11- 7-1970 purchased that plot from the said Rafique for consideration through registered sale-deed; that defendants/respondents being in possession on the part of the plot were sued for possession on 17-10-1972 and that the suit was decreed in their favour subject to condition of making up deficiency in court-fee till 26-10-1974; that the executing Court refused to execute the decree on the ground that they had failed to supply the deficiency within the prescribed time and, therefore, as directed in the judgment and decree the plaint in their suit stood rejected; that the District Court reversed the order of the Executing Court but in revision filed by the respondents judgment-debtors this Court held that the decree had become unexecutable. According to the plaintiffs since illegal occupation by the defendants was continuing and since the cause of action was recurring they tiled a fresh suit praying for a decree for possession. The defendant/respondent contested the suit on facts. As a preliminary objection it was alleged that the matter between the parties having already come to an end by way of the order recorded by this Court on 26-9-1979 in Civil Revision No,872 of 1979 the suit was hit by principle of res judicata. Also it was alleged that the decree, dated 24-9-1974 having become incapable of execution and the plaint as per condition of the Court having stood rejected, the present suit was not competent.
3. The Civil Court framed a preliminary objection if the suit filed by the plaintiffs/petitioners was barred by res judicata. The parties produced documentary evidence only. The learned trial Court while glancing at the genesis noted that decree in the original/previous suit was passed on 24-9- 1974 and the petitioners/plaintiffs had to make up the deficiency in court-fee before 27-10-1974.
However, they failed to do the same within the prescribed time. It was further noted that the matter reached this Court in Civil Revision which was decided against the present plaintiffs/petitioners on 26-9-1979. By that order a Single Bench of this Court found that as the terms of decree had not been complied with it had become incapable of execution. Accordingly the . Findings of the Additional District Judge were reversed in which he had accepted the appeal against the order of the Civil Judge, dated 19-6-1978 whereby the objection of the defendants/judgment-debtors that decree was not executable was accepted.
4. Before the trial Court the parties' learned counsel relied upon a number of reported judgments.
Having gone through them, the trial Court expressed the view that principle of res judicata meant that in the interest of public tranquility the rights of the parties could be decided once for all. Also that a negligent or careless claim could not be permitted to vex a party twice. With respect to the case in hand it was noted that the suit was decreed in favour of the plaintiffs and they were allowed a kind of privilege to make up the deficiency in the court-fee. Therefore, in the view of the trial Court in the present case plaint was not rejected because it did not disclose cause of action or it was barred by some law but it was rejected because the plaintiffs failed to perform the obligation imposed upon him. The cumulative effect according to the trial Court being that the suit was finally decided after hearing the parties and, therefore, the matter stood conclusively decided between them though it was only plaint which was directed to be rejected on the failure of the plaintiff to make up the deficiency.
5. Parties have been heard.
6. Learned counsel for the petitioner states that it is a simple case of ejection of plaint which did not operate as res judicata. Also relies upon reported judgment re: Ram Singh v. Nodh Singh (Punjab Record) May, 1879 at p.241, Mst. Maina Bibi and others v. Valil Ahmed and others AIR 1925 PC 63 and Mst. Nawasi Begum and another v. Mst. Dilafroz Begum AIR 1927 All.
39. In support of his submissions learned counsel also refers to the observations made by the learned Judge in the first case reported in the Punjab Record re: Ram Singh (supra). Lord Plowden while making his contribution to the judgment expressed opinion that the question as to a second suit for possession would be barred where conditional decree for payment to the defendant/judgment-debtor remained unsatisfied was entirely open. In re: Maina Bibi (supra), it was held that non-fulfilment of condition of a decree did not bar a second suit on the same subject-matter where the cause of action was recurring.
7. Learned counsel for the respondent, however, relies upon Asif Ali v. Muhammad Siddiq 1984 CLC 439, Muhammad Anwar v. Messrs Associated Trading Co. Ltd. PLD 1995 Kar. 214, Ilam Din and others v. Abdul Hamid and others 1980 CLC 807, and in re: National Bank of Pakistan v. Malaka Pukhraj and others PLD 1975 Lah. 1235 also cited re: Azad Government of the State of Jammu and Kashmir and another v. Kashmir Timber Corporation PLD 1979 SC (AJ&K) 139 to support his contention with regard to principle of res judicata and its application to the facts in hand.
8. I have considered the, submissions made by the parties in the light of the judgment of the Civil Court in the earlier suit, produced in the latter suit at Exh.P.1 and copy of the decree Exh.P.2. I have also gone through Exh.P.3 the order of Single Bench of this Court passed on 26-9-1979 in Civil Revision No,872 of 1979 wherein as noted earlier the decree passed in the previous suit was held to have become incapable of execution.
9. Having done that I am not persuaded to interfere. It is not disputed between the parties that on their pleading issues were framed and they led their evidence. Further, that on the basis of evidence produced the plaintiff succeeded inasmuch as they were declared to be owners of the plot in dispute. However, they failed to fulfil the necessary condition which required them to make up the deficiency in court-fee amounting to Rs,71 before a particular date. The extension sought was refused in the first instance and once it was allowed this Court reversed that finding through the aforesaid order, dated 26-9-1979. In any suit brought forwards, including the present naturally neither the pleadings are going to be different nor can the evidence to be produced by the parties improve. This exercise, according to the scheme of the Civil Procedure Code can be held only once irrespective of the factum whether the successful party could not have the fruits or whether the judgment debtor ultimately did not lose anything. For example a decree loses its efficiency when execution is not brought within the prescribed limit of time. Likewise once a decree becomes incapable of execution, another suit on the same subject cannot be brought to seek the same relief because that would clearly offend against the principle of res judicata.
10. The cases relied upon by the petitioner from Indian Jurisdiction are clearly distinguishable. In the first case re: Ram Singh v. Nodh Singh (supra) their Lordships accepted that question involved before them was entirely open inasmuch as the character of a conditional decree had not yet been determined. It will be noted that the said decision was recorded on 9-7-1879 while the principle of res judicata enshrined in section 11 of the Code came into force at a later stage on the first day of January, 1909. The second case relied upon re: Mst. Maina Bibi (supra) is also distinguishable. In that case the celebrated Judge Lord Atkinson ultimately found that mere non- payment of decretal amount to a Muslim widow in possession of the suit property in lieu of her dower did not make her absolute owner. It was on the basis of that finding that a second suit on the same subject-matter by heirs of the deceased husband was held not barred. The cases relied upon by the learned counsel for respondents also touch the controversy indirectly.
11. It will be noted that in the aforesaid order of this Court recorded in C.R. Now reported re: Ilam Din and others v. Abdul Hamid and others 1980 CLC 807, it was inter alia decided that on account of non-fulfilment of condition valuable right had occurred in favour of the opposite party.
12. In re: Muhammad Nasurllah Khan v. M. Ajaz Khan PLD 1975 Lah. 886, it was found that a conditional order or decree could be made to the effect that failure to supply proper fee within time allowed shall result in dismissal of the suit or rejection of the plaint. Obviously the plaint will normally be rejected where the plaintiff at the preliminary stage is allowed an opportunity but fails to make up the deficiency. However, when the trial has been completed and a conditional decree is passed, failure on the part of decree (sic) will result in dismissal of the suit and the word rejection of plaint will convey the same meaning. This is what exactly happened in this case. The trial Court instead of using the words dismissal of the suit directed the rejection of plaint which appears irrelevant. Since the parties had already completed their evidence and since the plaintiff had already been found entitled to the relief claimed, the direction for rejection of plaint was not appropriated. Instead it should have been for dismissal of the suit, consequences whereof though would remain uncharged. The reliance on the aforesaid case re: Asif Ali (supra) also lends some support to the case of the respondents in which a Division Bench of the Karachi High Court found that rejection of plaint inter alia on the ground that agreement to sell was not proved, could stand in the way for a fresh suit under Order 2, Rule 2 of C.P.C.
13. Therefore, the orders of the Courts below that fresh suit was barred under the principle of res judicata as contained in section 11 of the Code is not open to exception. It clearly restrains the Court from trying a suit or issue in which the matter directly and substantially in issue has earlier been in issue between the same parties and had been finally heard and decided by such Court. The principle operates both ways positively as well as negatively. In other words the result or outcome of the previous decision for or against a party to the lis is not material. As in this case it may have been favourable to the plaintiff in the subsequent suit. The settlement of issues in the earlier suit hits as fatally to a decree-holder as would it affect the judgment-debtor. Also the principle covers not only the parties but also the Courts as it enjoins upon them not to try a suit in the conditions given in section 11 of the Civil Procedure Code.
14. Since all the necessary qualifications of the principle of res judicata are fully answered in this case as earlier stated no case for interference is made out.
15. Petition rejected.