IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Civil Revision Applilcation No.S-20 of 2009

Appellant : Mst. Rabia Khatoon, through Mr. Ghulam Dastagir A. Shahani,

Advocte.

Respondent : Abbas Ali & another.

Mr. Abdul Karim Surahio, advocate for respondent No.1.

None present for respondent NO.2.

Date of hearing: 04-12-2012. Date of Judgment: 12.12.2012.

J U D G M E N T.

NAIMATULLAH PHULPOTO, J.- This Civil Revision Application under Section 115, C.P.C is directed against the concurrent findings of fact recorded by learned IVth Civil Judge & Judicial Magistrate, Larkana and VI-Additional District Judge, Larkana, rejecting plaint under Order 7, Rule 11, C.P.C in Civil Suit No.1/2006 re. Mst. Rabia Vs. Abbas & another, for declaration and possession, brought by applicant Mst.Rabia against respondents.

2/- Brief facts of the case of applicant Mst. Rabia as disclosed in plaint are applicant/plaintiff purchased plot No.40 in Bhurgri Colony, Larkana, measuring 2862 sq. feet. Said plot was purchased from Mr. Abdul Ghafoor Bhurgri, advocate, as attorney of Abdul Majeed, Abdul Salam and Abdul Samad Bhurgri through registered sale deed on 13.6.1988, in the consideration of Rs.64000/- and it had no boundary wall. On the Eastern side of the plot in suit there are plots No.41 and 39. It is mentioned that plot No.39 is situated to the Northern side of plot No.41. Respondent No.1/defendant Abbas Ali through defendant No.2 as his attorney encroached upon the portion of the plot of the applicant in the year 1997 and constructed a house. It is stated that area of 885 sq. feet is in illegal possession of respondents/defendants. Plaintiff filed suit No.21/2002 against defendant No.2 in respect of 285 sq. feet in the Court of Extra Joint Civil Judge, Larkana, but the same was withdrawn with permission to file the fresh suit. It is stated that a portion measuring 600 sq. feet occupied by defendant No.2 is part and parcel of plot No.40 owned by applicant/plaintiff. Cause of action accrued to plaintiff/applicant in the year 1997 when respondents/defendants encroached upon the portion of her plot. The plaintiff prayed for judgment and decree as under :-

a) Declaration that portion of 600 sq. feet occupied by defendant No.01 and 285 sq. feet occupied by defendant No.02 are part and parcel of plot No.40 (plot in suit).

b) For possession of said portion by ejecting the defendants therefrom.

c) Costs of the suit.

d) Any other relief to which the plaintiff is entitled.

3/- Defendant/respondent No.1 filed an application under Order 7, rule 11 C.P.C before IVth Civil Judge & Judicial Magistrate, Larkana, plaint was rejected by him vide orders dated 31.1.2007 for the following reasons :-

“I have considered the arguments advanced before me from both sides and have gone through the photo-state copies of Civil Suit No.54/2002 Re. Mst. Rabia Vs. Mohammad Saffar (Judgment dated 31.8.2002) Photo State Copy of Judgment in Civil Appeal No.121/2002 passed by Honourable 1^st Additional District Judge, Larkana dated 27.1.2004 and order dated 22.11.2005 passed by Honourable IInd. Senior Civil Judge, Larkana in F.C. Suit No.04/2005. I have also gone through the case law produced by the learned advocates for the parties.

From perusal of the record it appears that in the present suit the plaintiff has shown the name of defendant No.01 as Abbas Ali s/o Abdul Majeed Channa r/o Dhoke Kalhora Taluka Dokri while he had shown the name in the Civil Suit No.54/2000 before Extra Joint Civil Judge, Larkana as Ghulam Abbas s/o not known and has not shown his caste, which was dismissed by the Honourable 1^st Additional District Judge, Larkana vide his judgment dated 27.01.2004. Thereafter the plaintiff filed F.C. Suit No.04/2005 Re. Mst. Rabia Vs. Abbas Ali and others.

From perusal of the plaint and title of this suit and title of F.C. Suit No.04/2005 Re Mst. Rabia Vs. Abbas Ali and others filed in the Court of learned II-Senior Civil Judge, Larkana it appears that in the both suits Abbas Ali s/o Abdul Majeed Channa r/o Duke Kalhora Taluka Dokri and Niaz Hussain s/o Haji Ghulam Rasool by caste Bugti r/o House No.29 Shaikh Zaid Colony Larkana have been shown as defendant. In the both suits same property has been shown as case property. It also appears that the both suits have been filed by the same advocate. The both suits filed by the plaintiff in separate Court have been disposed of against the plaintiff, therefore, the plaintiff has filed fresh suit before this Court by concealing the facts.

In the case of PORT SERVICES COMPANY LTD V/S PORT SERVICES (PVT) LTD, through Chief Executive and others reported in 2002 CLC page 303 it is held as under:-

O. VII. R. II—Rejection of plaint-Requirements while considering an application O. VII Rule II CPC for rejection of plaint, not only the plaint has to be examined but the court can also look at and examine the undisputed and admitted material that may be made available by the parties on the record. Averments made in the plaint are considered to be correct unless they be absurd for in contradiction of themselves.

The case law produced by the learned advocate for the plaintiff is not applicable in the present case as in the reported case it is held that tenant not raising plea of resjudicata either before rent controller or appellate court or even in High Court but in the present case the defendant has taken plea at the first instance that the suit is barred by resjudicata.

In view of the above discussion, circumstance of the case and case law I am of resjudicata u/s 141 of C.P.C, hence application u/o 7 rule 11 C.P.C is hereby allowed with no order as to costs and plaint of the plaintiff is hereby rejected u/o 7 rule 11 C.P.C.”

4/- Applicant Mst. Rabia filed civil appeal against the order of rejection of plaint. Learned VI-Additional District Judge, Larkana by judgment dated 8.6.2009 maintained order of trial Court and dismissed appeal.

5/- I have heard learned Counsel for parties and with their assistance gone through entire material available on record.

6/- It is admitted fact that applicant had filed Suit No.54/2000 Re Mst. Rabia Vs. Muhammad Saffar and Ghulam Abbas for declaration and permanent injunction; suit was dismissed on merits by Extra Joint Civil Judge vide judgment dated 31.8.2002; Appeal was preferred, the same was dismissed by learned 1^st Additional District Judge, Larkana vide judgment dated 27.1.2004. Relevant portion is reproduced as under :-

“I have given due consideration to the arguments of the learned counsels of both the parties and have perused impugned judgment/decree and have also gone through the record, and evidence. It may be observed that the perusal of the impugned Judgment/decree so that the learned trial judge has considered all the aspect of case the judgment is not only based on the correct appreciation of the facts and law but it based on sound reasoning. The appellant has failed to prove that the respondent is the owner of the plot adjacent to the plot of the plaintiff/appellant. It is further evident from the record wherein the appellant in her plaint and evidence claimed that the defendant No.02 was trying to encroach upon the same area of the irrigation department by including 10 sq. ft. from plot No.40 which is exclusive property of the appellant it appears that the cause of action was accrued against the defendant No.2 for filing the suit but subsequently the suit against defendant No.2 was withdrawn by the plaintiff/appellant, therefore, no cause of action accrued against the defendant No.1/respondent for filing the suit. It is further evident from the record that Mukhtiarkar Larkana inspected the site under the order of the trial Court and submitted report on 12.11.1999 wherein it is not stated anywhere in the report that the respondent/defendant encroached upon the area of the plaintiff/appellant. The learned Mukhtiarkar Larkana clearly stated in his report that the disputed plot bearing Nos.41, 42, 43, 44 and 45 from S.No.420 and other of the Larkana has been demarked on 6.10.1999 in presence of both the parties and found that the plot No.41 consisting 2 parts each of 1200 sq. ft. The second part is falling to one Abbas Ali Channa from the perusal of record and evidence and report of the Mukhtiarkar it appears that no encroachment made by the respondent nor the adjacent property belonged to respondent therefore, the suit filed by the plaintiff/appellant is not maintainable and no cause of action has accrued to plaintiff/appellant to file the suit against the defendant No.1/respondent. The judgment passed by the learned trial Court therefore, does not suffer from any irregularity and illegality and calls for no interference. Resultantly, I do not find any merits in the present appeal which is accordingly dismissed with no order as to cost and the impugned judgment decree is consequently maintained.”

7/- In order to appreciate the arguments of learned Counsel for the parties, Section 11, C.P.C is reproduced as under :-

“11. Res Judicata. --- “No Court shall try any 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.”

8/- It is matter of record that earlier suit of applicant Mst. Rabia for declaration, permanent injunction and damages was dismissed on merits. Appeal was also dismissed. Applicant filed second suit on same cause of action after 06 years. Plaint was rejected on the ground the suit being hit by principles of resjudicata. Plaint was rightly rejected on the basis of averments of plaint and earlier judgments passed in respect of suit property for the reasons that matter substantially in issue in former suit between same parties has already been finally decided.

9/- While considering an application under Order 7, rule 11 C.P.C for rejection of plaint, not only the plaint has to be examined, but Court can also look into and examine the undisputed and admitted material that may be made available by the parties on record. I find no legal force in the contention of Mr. Shahani, Counsel for the applicant, that plaint has been rejected without framing issues. Earlier suit filed by applicant Mst. Rabia for declaration and permanent injunction was dismissed by discussing all issues. Appeal was also dismissed. No other point worth consideration has been raised in support of this revision. Since concurrent findings of fact on face of record are neither arbitrary nor fanciful or perverse. There is no scope for interference by this Court in the exercise of revisional jurisdiction, which is essentially meant for correcting errors of law, committed by subordinate Courts. Needless to emphasis such jurisdiction is restricted and narrower. A reference may be made to the dictum laid down in Haji Muhammad Din Vs. Abdullah, (PLD 1994 SC 291).

10/- For the aforesaid facts and reasons, there is no merit in this civil revision application, which is accordingly dismissed.

JUDGE

Qazi Tahir/*

that applicant Mst. Rabia Khatoon claims to be the owner of the plot No.40, area 2862 sq. feet out of Survey No.419 of Deh Larkana, filed a suit in the Court of Extra Joint Civil Judge, Larkana, for possession of 640 sq. feet of aforesaid survey number against Muhammad Saffar Abro and Ghulam Abbas Sangi. It is stated that in that suit Ghulam Abbas Sangi made a statement that he had no interest with the property in question, while Muhammad Saffar Abro pleaded that construction was not raised by him, but same was raised by one Abbas Ali son of Abdul Majeed Channa and he had acted on his behalf, as such suit against Ghulam Abbas Sangi was withdrawn and suit proceeded in between Muhammad Saffar Abro and applicant Mst. Rabia. However, suit was dismissed and fresh suit against present respondent was filed for possession and removal of encroachment.

3/- After service of the notice, respondent Abbas Ali Channo filed an application under Order VII, Rule 11, CPC for rejection of the plaint, on the ground that said suit was hit by the principle of the res judicata. After hearing the learned Counsel for the parties, plaint was rejected. Civil Appeal No.14/2007 was filed before the District Court. The same was dismissed vide judgment dated 08.6.2009 by learned VI-Additional District Judge, Larkana, while observing that prior to this, suit No.54/2000 as well as First Class Suit No.04/2005 were filed. Suit was dismissed and plaint was rejected, as such, subsequent suit No.01/2006 was barred by law.

4/- Notices were issued to the respondents as well as Additional Advocate General. Mr. Abdul Karim Surahio, advocate, appeared on behalf of the respondent No.1. Despite publication respondent No.2 did not appear.

5/- Mr. Ghulam Dastagir A. Shahani, learned advocate for the appellant, argued that principle of res judicata will not be applicable to this case, as in this case parties were not same, issues were not framed and parties were not provided opportunity to give the evidence. Applicant Mst. Rabia is lawful owner of the property by virtue of registered sale deed. Necessary mutation has been made in the revenue record in her favour. Lastly, he has argued that Courts below have not exercised the jurisdiction properly. Matter may be remanded to the concerned Civil Court for deciding the same afresh on merits. In support of his contentions he relied upon the cases reported as Abdul Hamid v. Dilawar Hussain, 2007 S C M R 945 and Sanesra Star Screen Industries v. Jamia Masjid Eid Gah, 2009 C L C 67.

6/- Mr. Abdul Karim Surahio, learned advocate for respondent No.1, argued that principle of the res judicata are applicable to this case, as in the judgment dated 31.8.2002 “annexure-H”, issues were framed and suit was decided against the applicant on merits. He has further submitted that Courts below have rightly exercised the jurisdiction and civil revision application is without merit and the same is liable to be dismissed.

7/- In order to appreciate the contentions raised by the learned advocate for the applicant, I have carefully perused the judgment dated 31.8.2002 passed by learned Extra Joint Civil Judge, Larkana in F. C. Suit No.54/2000 re Mst. Rabia v. Muhammad Saffar and Ghulam Abbas. Out of the pleadings of the parties following issues were framed :-

“Issue No.1: Whether the suit is not maintainable in law?

Issue No.2: Whether the plaintiff is entitled for damages aty Rs.15000.00 from the defendants?

Issue No.3: Whether the plaintiff is owner and in possession of plot bearing No.40 area 2862 sq. ft. out of S.No.419, 420 and 421 in Bhurgri Colony, Larkana, vide purchase through sale deed in the year 1998?

Issue No.4: Whether the defendant No.1 is trying to encroach upon 10 sq. ft. of the plaintiff from plot No.440?

Issue No.5: Whether the defendant No.1 has no concern with the suit property?

Issue No.6: Whether the plaintiff is entitled for the relief?

Issue No.7: What should the decree be?”

8/- Learned Civil Court recorded findings on the above-said issues as under :-

Issue No.1 Negative.

Issue No.2 Negative.

Issue No.3 Affirmative.

Issue No.4 Negative.

Issue No.5 Affirmative.

Issue No.6 Negative.

Issue No.7 Suit dismissed.

9/- Issue No.3 is very much relevant for just decision of the revision. Learned Extra Joint Civil Judge has mentioned while discussing issue No.3 that plaintiff has produced documents, which show that plaintiff is owner of the plot of the suit and answered the issue in affirmative. Plaint has been rejected for the following reasons :-

“From perusal of the plaint and title of this suit and title of F.C. Suit No.04/2005 Re Mst. Rabia Vs. Abbas Ali and others filed in the Court of learned II-Senior Civil Judge, Larkana it appears that in the both suits Abbas Ali s/o Abdul Majeed Channa r/o Duke Kalhora Taluka Dokri and Niaz Hussain s/o Haji Ghulam Rasool by caste Bugti r/o House No.29 Shaikh Zaid Colony Larkana have been shown as defendant. In the both suits same property has been shown as case property. It also appears that the both suits have been filed by the same advocate. The both suits filed by the plaintiff in separate Court have been disposed of against the plaintiff, therefore, the plaintiff has filed fresh suit before this Court by concealing the facts.

In the case of PORT SERVICES COMPANY LTD V/S PORT SERVICES (PVT) LTD, through Chief Executive and others reported in 2002 CLC page 303 it is held as under:-

10/- In order to appreciate the arguments of learned Counsel for the parties, Section 11, CPC is reproduced as under :-

11/- A perusal of the judgment dated 31.8.2002, passed by Extra Joint Civil Judge, Larkana in Civil Suit No.54/2000 re Mst. Rabia Khatoon v. Muhammad Saffar and Ghulam Abbas, shows that suit was filed for declaration, permanent injunction, mandatory injunction and damages by Mst. Rabia against the respondents/defendants. By deciding issue No.3 learned Extra Joint Civil Judge came to the conclusion that plaintiff is the owner of the plot of suit. Such finding attained finality. Rejection of suit No.01/2006 filed by Mst. Rabia versus Abbas Ali and Niaz Hussain without framing of the issues and evidence was not justified. Learned Additional District Judge while deciding the issue of the res judicata did not apply his mind to the legal aspect of the case. In the suit No.01/2006 Mst. Rabia v. Abbas Ali and Niaz Hussain, issue directly end substantially. In this matter directly and substantially said issue was not decided in the former suit between the parties. In suit No.01/2006 Mst. Rabia had added one Niaz Hussain as party and Niaz Hussain was not party in Civil Suit No.54/2000 filed before Extra Joint Civil Judge, Larkana. Learned Civil Judge while rejecting the plaint ignored the basic principle, according to which while considering the question of cause of action for rejection of the plaint under Order VII, Rule 11, CPC, Court has only to apply its mind to the facts given in the plaint, not to other material. It is also settled position of the law that rejected plaint could be brought again within the period of limitation if shortcoming involved was removed by the plaintiff. Rejection of the plaint would not operate as a res judicata between the parties. It is also settled law that rejection of plaint was not an adjudication on merits and it was a decree only by fiction, therefore, there was no bar to file fresh suit. Right reliance has been placed by Mr. Shahani on the case Abdul Hamid (supra), wherein following observations have been recorded by the Hon’ble Supreme Court :-

“6. Mere reading of the aforesaid provisions of law and operative part of the judgment of the trial Court in the first round of litigation clearly shows that their plaint was rejected in terms of judgment dated 24.9.1974. All the Courts below had not adverted to Order VII, Rule 13, C.P.C. It is evident from the aforesaid Order VII, Rule 13, C.P.C. that rejection of plaint does not preclude the presentation of fresh plaint and the plaint was also not liable to dismissed on the well-known principle of res judicata qua filing a fresh suit on the same cause of action as law laid down by this Court in various pronouncements. Reference can be made to the following judgments:-

(i) Sakhi Muhammad’s case PLD 1992 SC 256, (ii) Abdul Satar’s case 1995MLD 1563, (iii) Munawwar Hussain’s case 2001 YLR 1241 (iv) Mian Khan’s case 1989 SCMR 58.

7. It is also a settled law that rejection of plaint has not an adjudication on merits. It is a decree only by fiction, therefore, there is no bar to file fresh suit.”

12/- For what has been discussed above, the civil revision application is allowed and judgments of the Courts below are set aside. Case is remanded to the trial Court to decide the same afresh on merits after framing proper issues in view of pleadings of the parties by providing full opportunity to the parties strictly in accordance with law.