1. This order shall dispose of the application (C.M.A. No,5588 of 1999), under Order 7, rule 11 read with section 151, C.P.C. For rejection of the plaint in suit, inter alia, on the grounds that (i) the suit is without cause of action; (ii) the suit is barred under Order 9, rule 9; and (iii) the suit is barred under section 11, C.P.C. The application under disposal has been moved in the following circumstances:-- The plaintiffs filed suit for declaration, injunction and compensation in following terms:--
(i) Declaration that the plaintiffs are the Haris/tenants of the agricultural land bearing Survey Nos.
2. 81, 82, 83, 84, 85, 86 with corresponding new Survey Nos. 330, 331, 332, 333 and 334, situated in Deh Jureji, Tapo Darsano Chhanno, Taluka and District Malir (formerly District Karachi), through their predecessor Eidoo son of Shandad and as such in possession of it.
(ii) Permanent injunction restraining the defendant 1 or any other claiming through the defendant 1 from dispossessing the plaintiffs of the said land and/or interfering in plaintiffs' such possession of the land and/or cutting of the trees and bulldozing the embankments/ bunds at the said land, except through due process of law.
(iii) Permanent injunction restraining the defendant 10 from paying the compensation of the suit- land whichever has been acquired for Pakistan Steel Mills to defendant No,1 and also restraining the defendant 1 from obtaining such compensation without settlement of the plaintiff's legal right to it.
(iv) Mandatory injunction to the defendant 10 to pay the share of the compensation of the acquired part of the suit-land to the plaintiffs as may be determined in the suit.
(v) Permanent injunction restraining the defendant 1 from converting the suit-land or any part of it to any non-agriculture purpose, in infringement of the plaintiffs' right as Haris thereof.
(vi) Costs of the suit.
(vii) Any other relief or reliefs which this Hon'ble Court may deem fit and proper in the circumstances of the case. The case of the plaintiffs, according to their assertions in plaint, is that Eidoo son of Shandad, the predecessor of the plaintiffs was old Hari/tenant of agricultural land bearing Survey Nos. 81, 82, 83, 84, 85 and 86 with corresponding new Nos. 330, 331, 332, 333 and 334 measuring about 120 acres of Deh Jureji, Tapo Darsano Chhanno, Taluka and District Malir, formerly District Karachi (hereinafter referred to the suit-land). Eidoo died on 9-12-1987. The defendants Nos.2 and 3 filed suit bearing No,286 of 1977 against Eidoo and defendants Nos. 1, 4 to 10 for declaration, permanent injunction and compensation, claiming ownership over the Suit land and Eidoo their Hari. The some of the suit-land was acquired for Karachi Steel Mills and compensation was to be paid and they objected payment of compensation to Eidoo and demanded the compensation of acquired land. The suit was compromised by order dated 29-8- 1991 between the plaintiffs therein and defendants Nos. 2 and 3, as consequence thereof, the amount of compensation in Civil Reference No,3/78 was distributed amongst them and ultimately the suit was withdrawn against the rest of the defendants. Eidoo, the predecessor of the plaintiffs had also filed Civil Suit No,435 of 1980 for declaration of ownership in respect of the suit-land by way of adverse possession on prescriptive rights, as such, claimed compensation for the land acquired. The suit was dismissed for non-prosecution on 27-3-1997. The cause of action for the suit is based on the withdrawal of the Suit No,286 of 1977 by the defendants and thereafter, the defendant No,1 act of cutting the trees standing on the land and bulldozing the embankments thereof and threatened forcible ejectment. I have heard Mr. Zafar Hadi Shah, learned counsel for the defendant No,1 and Mr. K.B. Bhutto, learned counsel for the plaintiffs. Mr. Zafar Hadi Shah in support of the application maintained that the suit of the plaintiff is hit by the principles of res judicata in terms of section 11, C.P.C. For the reasons that the suit of the plaintiffs' father was dismissed for non-prosecution. Restoration application was not filed thus order attained finality.
3. In order to invoke the principles of res judicata, following conditions are necessary:-
(1) The matter directly and substantially in issue in the subsequent suit or the issue must be the same matter which was directly and substantially in issue either actually or constructively in the former suit.
(2) The former suit must have been a suit between the same parties or between parties under whom they or anyone of them claim.
(3) The parties as aforesaid must have litigated under the same title in the former suit.
(4) The Court which decided the former suit must have been a Court competent to try the subsequent suit in which such issue is subsequently raised.
(5) The matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by the Court in the first suit.
4. In the instant case, the suit was dismissed for non-prosecution. Theo pre-conditions to invoke the provisions of section 11, C.P.C. Are not available, therefore, the principle of res judicata cannot be pressed into service The second limb of the arguments of the learned counsel for the defendants in support of the application was that the suit is hit by the provisions of Order 9, rule 9, C.P.C. Which provides that 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, save an application for setting aside the dismissal order if he satisfies the Court that there was sufficient cause for non-appearance.
5. In the instant case, the plaintiffs themselves have admitted that their father has filed the suit bearing No,435 of 1980 in this Court which was dismissed for non-prosecution on 27-3-1997 and no step was taken for the restoration of the suit by the plaintiffs. Mr. K.B. Bhutto, learned counsel for the plaintiffs maintained that the suit filed by the predecessor of the plaintiffs namely, Eidoo was based on different cause of action. The plaintiffs' father Eidoo had asserted the ownership by adverse possession and claimed the compensation in respect. Thereof, whereas, the cause of action in the present case is different and based on the withdrawal of the Suit No,286 of 1977 by defendant. The act of the defendant No,1 in cutting the standing trees and bulldozing the embankment and threatened ejectment.
6. Filing of the Suit No,435 of 1980 by the plaintiffs, father, Eidoo is admitted by them in their suit (para.No,4 of the plaint). Therefore, the same can be considered while considering the plea of rejection of the plaint. His case for declaration was based on adverse possession and his suit was dismissed, as such any right flowing from the said cause of action would be hit by the provisions of Order 9, rule 9, C.P.C. Whereas, the present suit is based on subsequent cause of action. The main point is whether the plaintiffs have the cause of action to bring the suit for declaration of their tenancy right, a plea of permissible possession claiming such right through their father who had taken a contradictory plea of adverse possession to claim ownership over the property. Both pleas are destructive of each other. Mr. K.B. Bhutto, learned counsel for the plaintiffs submission was that since the defendants had taken the plea that Eidoo was their tenant, therefore, they cannot approbate and reprobate. Mr. Zafar Hadi Shah, learned counsel for defendant No,1 maintained that had it been a case of the plaintiffs that their father had accepted the defendant's plea of tenancy and accepted his possession as tenant then the defendants would have been stopped from taking a contrary plea.
7. His further submission was that on the contrary, the plaintiffs are claiming through their father as Hari, who had taken a different plea viz. Adverse possession, therefore, the plaintiffs cannot take a different plea from the plea taken by their father. His further contention was that the plaintiffs are not claiming tenancy over the suit-land in their own right, therefore, they cannot take a different plea from a plea taken by their father, i,e, a plea based on permissive possession over the suit-land as tenant.
8. It may be stated that the principles recognized for giving effect to estoppel are; firstly that the fact recited should be essential for the deed creating the rights and obligations; secondly the suit must be based on the deed or concerning a right and of it; thirdly that it should have prompted the other side to an action to its prejudice; and fourthly that the estoppel should not be utilized for making something legal which, in fact, is illegal and offending against a statutory provision concerned with public policy. In the instant case, even if the plea of the defendant in suit filed by Eidoo was that he is tenant, if Eidoo would have accepted the plea then there would have been estoppel against the defendants but Eidoo had not accepted the assertion of the defendant, therefore, the estoppel cannot be pleaded against the defendant. On the contrary, the plaintiffs are seeking declaration on the basis of a plea that their father was old Hari on the suit-land, whereas, their father had taken a contrary plea, therefore, the plaintiffs cannot bring a suit on permissive possession. Therefore, I am of the view that the plaintiffs have no cause of action to bring the suit. As a consequence thereof, the plaint of the suit is rejected. Rest of the applications have become infructuous, dismissed as such.