' CH. MUHAMMAD ARIF, J.---Leave to appeal is claimed in this petition under Article 185(3) of the Constitution of the Islamic Republic of Pakistan, 1973 against the judgment dated 8-11-1999 passed by a learned Judge in Chambers of the Lahore High Court, Lahore whereby respondents' Civil Revision No.929 of 1985 was allowed and the judgments and decrees passed by both the trial Court and the 1st Appellate Court favouring the petitioners in their suit for a declaration that they were owner of 18/504 share of the suit land, left by petitioner-Mst. Hafiza Begum's real brother Riaz Ahmad who died issueless on 23-3-1980 and that Mutations of Inheritance No.2907 and 98 pertaining to agricultural lands situated in two villages i.e. Chak No.219-RB, Tehsil and District Faisalabad and Mauza Khokhar, Teshil and District Narowal respectively favouring the respondents/defendants are ineffective against their rights. The claim of the plaintiffs was that the respondents/defendants were not collaterals of the deceased-Riaz Ahmed son of Misbah-ul-Haq.
The respondents/defendants contested both the suits by filing written statement therein. The learned Civil Judge proceeds with framing an issue as to whether the respondents are not the heirs of Riaz Ahmad-deceased. However, the civil suit filed at Faisalabad was dismissed by a learned Civil Judge in terms of Rule 3 of Order XVII, C.P.C. Vide judgment and decree dated 26-6-1983.
However, in the civil suit at Narowal which had been filed earlier than the suit at Faisalabad, the learned Civil Judge recorded the evidence of the parties and decreed the same in favour of the petitioners vide judgment and decree dated 14-10-1984. The appeal of the respondents against the above judgment and decree was dismissed by a learned Additional District Judge, Sialkot on 5-3- 1985. An application submitted by the respondents before the learned Additional District Judge under Order XLI, Rule 27, C.P.0 for producing additional evidence was dismissed on the ground that the documents sought to be produced were in their possession even before the filing of the suit but not appended with the written statement and, therefore, there was no justification for allowing them to produce the same.
2. Respondents filed Civil Revision No.929 of 1985 in the High Court which was accepted by the learned Judge in Chambers on 8-11-1999 with, among others, the following observations: "As already stated, the civil suit filed by the respondent No.1 substantially involving the same issues and cause of action between the parties was dismissed against the respondents by the learned Civil Judge, Faisalabad, by the judgment and decree dated 26-6-1983, under Rule 3 of Order. XVII, C.P.C. The Mutation No.2970 of inheritance of late Riaz Ahmad in favour of the petitioners as the sons of a full paternal uncle and also in favour of the respondents stood affirmed. The said judgment and decree were not assailed by the respondents in appeal and the same, therefore, attained finality. It hardly made any difference whether the judgment had been rendered after the production of necessary evidence of the parties or not. The impugned judgments and decrees passed by the learned Civil Judge, Narowal and the learned Additional District Judge, Sialkot, were after the dismissal of the civil suit of the respondents at Faisalabad. The earlier judgment and decree dated 26-6-1983 passed by the learned Civil Judge, Faisalabad, was a res judicata within the meaning of section 11, C.P.C. And operated as a bar against the civil suit filed by respondents No.1 at the Civil Court, Narowal."
"8. The legal effect of dismissal of a suit in terms of Rule 3 of Order XVII, C.P.C. Was examined in a number of cases decided by the superior Courts of the sub-continent. In Shahid Hussain (supra), it was held that an order of dismissal of a suit for failure to produce evidence under Order XVII, Rule 3, C.P.C. Was deemed to be a judgment on merits and operated as res judicata between the parties which barred a second suit. It was further held that the decision was obviously an adjudication in which the Court conclusively determined the rights of the parties with regard to matters in controversy in the suit between the parties that was why it had been held to operate as res judicata between them, barring any other suit the suit relating to the same controversy. In the case of Court of Wards, Hyderabad (supra), two separate suits were filed on same subject-matter and between the same parties, one instituted at Hyderabad and another at Mirpur Khas. The suit at Mirpur Khas was decided earlier although instituted later in point of time. It was held that the civil suit which was decided earlier was to be treated to be a former suit for the purposes of section 11, C.P.C. In the case of Sheodan Singh v. Daryao Kunwar (AIR 1966 SC 1332), it was observed that it was not the date on which the suit was filed that matter but the date on which the suit was decided so that even if a suit was filed later, it will be a former suit if it had been decided earlier. In the cases of Govindoss Krishnadoss v. Rajah of Karvetnagar and another (AIR 1929 Madras 404) (D.B.) and Had Dayal v. Ram Ghulam (AIR 1944 Oudh 39) (D.B.) (1944) 201 Indian Cases 462), it was held that the dismissal of a petition owing to failure to produce evidence in respect of the facts alleged in the petition was a dismissal on the merits and so was binding on the Court as well as the.Parties. It was further held that such a dismissal under Order XVII, Rule 3, C.P.C. Operated as a bar to the maintainability of another suit by the plaintiff. In an earlier case of Rama Rao. v. Suriya Rao and another (1876)1 Madras 84)(D.B.), it was laid down that dismissal of a claim for failure on part of plaintiff to produce evidence to substantiate it, was of the same effect as dismissal founded upon evidence, for the purposes of barring a subsequent suit as res judicata. In Ram Gobinda Daw and others. v. Smt. H. Bhakta Bala Dassi etc. (AIR 1971 SC 664), the scope of section 11, C.P.C. Was examined. It was observed that the test of res judicata was the identity of the issues or title in the two litigations and not the identity of the actual property involved in the two cases. In Naganda Aiyar alias Eswa rapier v. Krishnamurti Aiyar and others (1911) 34 Madras 97) (D.B.), the Madras High Court observed where the causes of action were substantially the same the form in which they were stated or the difference in the frame of the relief would not affect the question and that the subsequent suit was barred as res judicata."
"9. It is also to be noticed that the respondent No.1 was permitted by the learned Civil Court, Narowal, to reserve her own evidence to be recorded after the closure of the evidence of the petitioners. Such an act on the part of the learned Civil Court was not warranted by law.
' In the case of Alhaj Khalil Ahmad v. The Australasia Bank Ltd., Lahore and another (1979 CLC 494), it was observed with reference to the provisions of Order XVIII, Rules 1 and 3, C.P.C. Read with sections 101 and 102 of the Evidence Act, that the practice of reserving plaintiff's evidence in affirmative till defendant closes his evidence and allowing plaintiff to:give evidence in affirmative and rebuttal thereafter was not in accordance with law and was likely to prejudice the defendant."
"10 As to the application of the petitioners under Order XLI, Rule 27, C.P.C. The reasoning given by the learned Appellate Court in refusing the application for the production of the additional evidence was not based on sound judicial principles. The documents sought to be produced were the certified copies of the pedigree-tables, one obtained from India and the other from the Central Record Office, Lahore. Nothing was said at the bar by the learned counsel for the respondents as against the authenticity, genuineness or admissibility of the pedigree-table as certified by the Central Record Office in accordance with the provision of law. The same being the public document ought to have been permitted to be produced being a relevant document showing the common line of ancestors of the parties. The certified copy of the pedigree-table as certified by the Central Record Office, Lahore, is allowed to be produced in evidence as no objection was raised thereto. Reference may be made to the cases of Ahmad Ashraf v. University of the Punjab (1988 SCM R 1782 ) and Ghulam Muhammad and another v. Muhammad Aslam and others (PLD 1993 SC 336)."
3. Mr. Raja Muhammad Anwar, learned Senior Advocate Supreme Court appearing in support of this petition, has relied upon Haji Muhammad Din v. Malik Muhammad Abdullah (PLD 1994 SC 291), Sheikh Muhammad Bashir Ali and others v. Sufi Ghulam Mohi-ud-Din (1996 SCM R 813) and Mst.
Iram Cheema v. Auqaf Department (1999 SCM R 2289) to contend that (1) the alleged dismissal of the suit of the petitioner-Mst. Hafiza Begum by Civil Courts at Faisalabad on account of her failure to produce evidence under Rule 3 of Order XVII, C.P.C. Does not stand in her way in successfully challenging the mutation in question as held in the latter precedent that if findings have not been recorded by Court on a particular aspect of the matter and if the point is left open for decision in fresh proceedings, then, principles of res judicata would not be applicable to such matters and (2) the concurrent findings of two Courts below on questions of fact do not furnish any cause to the High Court to reverse the same in the exercise of its jurisdiction under section 115 of the Civil Procedure Code (No. V of 1908) as ruled in (1) Haji Muhammad Din and (2) Sh. Muhammad Bashir Ali (supra).
4.. After hearing the learned counsel for the petitioners as also Mr. Malik Muhammad Azam Rasool, learned Advocate Supreme Court appearing on behalf of the respondents/caveators, we are inclined to grant leave to consider above questions raised by the learned counsel for the petitioners.
5. Status quo shall be maintained, meanwhile.
6. Office is directed to list the case for final hearing within 4- months. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.