IN THE HIGH COURT OF SINDH CIRCUIT COURT LARKANA
Civil Rev. Appln. S-16 of 2015 Rukhsana Khatoon & Another
vs. Mumtaz Ali & Others.
For the Applicants : Mr. Abdul Khalique Bughio
Advocate
Date of hearing : 14.02.2022
Date of announcement : 14.02.2022
ORDER
Agha Faisal, J. (1) Granted; subject to all just exceptions (2) Briefly stated; the F.C Suit No.122 of 2012 was filed before the Senior Civil Judge, Mehar by the brother/attorney of the present applicants claiming rights in the subject property through inheritance. The suit was dismissed vide judgment dated 22.08.2013 and the said judgment was never appealed. Per learned counsel, since the appeal in respect of the said judgment was time barred, therefore, the present applicants filed a separate suit agitating the same lis in respect of the same land.
2. Vide order dated 16.10.2014, the learned trial court was pleased to reject the plaint under Order VII Rule 11 C.P.C. Operative finding are reproduced herein below:
"After hearing the arguments of the parties & perusal of the record and proceedings of this case, it appears that the attorney of plaintiffs namely Khalid (who is also brother of the plaintiffs) had filed FCS No.122/2012 Re-Khalid Vs Mumtaz and others regarding same property/plot which was dismissed by learned Senior Civil Judge, Mehar vide Judgment dated 22.08.2013 and the said case was disposed of on merits. The plaintiffs Rukhsana and another are the sisters of said Khalid Hussain and the property is shown originally to their father. The attorney of plaintiffs (Khalid) on same cause of action has filed the instant suit for Declaration, Possession and Permanent injunction against defendants Mumtaz and others. The instant application has been filed on the ground that the suit is hit by Resjudicata. While considering the plea of defendants/applicants, I find it necessary to reproduce the section 11 of Civil Procedure code for reedy reference:
11. Res Judicata
No Court shall try and suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim. Litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.
The doctrine of Resjudicata is of universal application and is based on the principle that Public Policy demands that one cause should not be tried for the second time between the same parties and there must be an end of litigation. Section 11 of CPC in fact prohibits the court from trying any suit or issue in which the matter directly or substantially in issue has been directly and substantially in issue in a former suit between the same parties or between the parties under whom, they or any of them claim, litigate under the same title in a court competent to try subsequent suit or the suit in which such issue has been subsequently raised and has been heard and finally decided by such competent court. In this case, the case of plaintiffs are that they had purchased the suit plot through unregistered lqrarnama dated 17.01.1987. The previous suit i.e. FCS NO.122/2012 Re- Khaliad Vs Mumtaz Ali and others was decided on merits by Hidgment dated 22.08.2013 and in that suit the applicants were also shown as defendants NO.1 to 3. After the dismissal of the suit of the attorney of plaintiffs, he brought fresh suit in the name of his sisters (Plaintiffs) and filed by him as their attorney. The instant suit has been filed with malafide intention and it is nothing but the multiplication of litigation because the court has already passed the Judgment and dismissed the suit regarding same suit property. No fresh suit can be filed on the same cause of action. Moreover, the plaintiffs have suppressed the real facts from this court.
In view of facts and circumstances discussed above, I am of the considered view that the instant case pertains to subject matter of case Re.FCS. NO.122/2012 Re- Khalid Vs Mumtaz Ali and others which has already been decided by the court of Senior Civil Judge, Mehar on merits. The subsequent suit i.e. the present suit is hit by the principle of Resjudicata. The reliance is placed to the case law reported in 2009 CLC page 67. Resultantly, I allow the instant application filed u/o VIl Rule 11 CPC r/w section 151 CPC and reject the suit of the plaintiff with no order as to costs."
3. Vide judgment dated 05.03.2015, the learned III-Additional District Judge Mehar was also pleased to dismiss the appeal. The operative part is reproduce herein below:
"It is admitted position that there is no any record of rights regarding the suit plot nor the boundaries of the plot have been mentioned in the plaint, so that it can be identified. It is also admitted position that previously F.C.Suit No.122 of 2012 was filed prior to this suit regarding the same plot and the parties almost in both the suit are same because previously it has been contended that Khalid Hussain the present attorney of the plaintiffs filed the suit which was dismissed and the same attained the finality, therefore, learned trial court had rightly held that suit is barred U/s 11 of C.P.C besides the ground as aforesaid.
10. Therefore, in the light of the aforesaid situation, I am of the humble opinion that the order passed by learned trial court for rejection of plaint is not liable to be interfered with and the same stands sustained and the appeal of the appellants stand dismissed with no order as to costs.
4. Learned counsel for the applicants submits that the judgment rendered in F.C Suit No.122 of 2012 was contrary to the law, however, since the appeal there against was already time barred, therefore, it was just and proper for the applicants to agitate the same lis afresh.
5. Heard and perused. It has been admitted by the learned counsel that the claim in the prior and subsequent suit was identical and that the subsequent suit was filed merely to frustrate limitation. The principles of res judicata are enshrined in the law, statutory as well as common, and it would be inconceivable to consider the entire jurisprudence in such regard otiose. It is imperative to denote at this juncture that it was never the appellant's case that the proceedings were not marred by res judicata.
6. The original judgment as well as judgment in appeal appear to have considered the record and the law and no infirmity in respect thereof has been identified to this Court. It is settled law that in the presence of concurrent findings, coupled with preponderance of claim supported by evidence, a revisional court ought not to interfere even if another view was possible. Reappraisal of evidence was even otherwise undesirable in revisional proceedings[1].
7. This Court has considered the contentions of the applicant and has noted the inability to cite a single ground based upon which the jurisdiction of this Court could be exercised under section 115 of Code of Civil Procedure. There is no suggestion that the impugned judgments are either an exercise without jurisdiction or a failure to exercise jurisdiction or an act in exercise of jurisdiction illegally or with any material irregularity. It is trite law[2] that where the fora of subordinate jurisdiction had exercised its discretion in one way and that discretion had been judicially exercised on sound principles the supervisory forum would not interfere with that discretion, unless same was contrary to law or usage having the force of law.
8. It is the considered view of this court that the applicants have remained unable to demonstrate any infirmity with the impugned judgments, meriting interference in revision under Section 115 C.P.C, therefore, this revision is hereby dismissed in limine.
JUDGE