2024 C L C 1353

[Balochistan (Sibi Bench)]

Before Gul Hassan Tareen, J
Mst. SAKINA----Petitioner
Versus
NOOR MUHAMMAD and 2 others----Respondents
Civil Revision Petition No.(S)48 of 2022, decided on 12th April, 2023.
Specific Relief Act (I of 1877)---
----Ss.39, 42, 54 & 55---Civil Procedure Code (V of 1908), O.VII, R.11---
Res judicata---Scope---Rejection of plaint, application for---Maintainability
of a suit envisaged by Cl.(d) of R.11 of O.VII, C.P.C.---Suit for declaration,
cancellation and permanent injunction---Barred by law---Plaint of the
petitioner was rejected by the Trial Court, which was affirmed by the
Appellate Court---Validity---Prior to the suit of petitioner, the respondents
instituted a civil suit against the petitioner for declaration, possession and
perpetual injunction in respect of land bearing survey No.155 measuring 16
acres---Suit was contested by the petitioner and others---Said suit was
decided in favour of respondents and it was held that the husband of the
petitioner had left the suit land bearing survey No.155 in favour of
Government and retained land of survey No.154---Said judgment was
affirmed by the Appellate Court---Concurrent judgments were also affirmed
on civil revision petition by the High Court---In her subsequent suit, the
petitioner had impugned the genuineness of mutation of the respondent and
claimed that her husband was the recorded owner of the suit land---Issue
raised by the petitioner in her suit was, directly, substantially, collaterally
and incidentally, in issue in the former civil suit of the respondent---Issue of
genuineness of the impugned mutation and resumption of suit land by the
Government and its subsequent transfer in the name of the respondent was
finally heard and decided by a competent Court of law---Petitioner
instituted her subsequent suit after decision of the Trial Court as well as
Appellate Court---When she instituted her subsequent suit, the issue of
genuineness of the impugned mutation entry was concurrently decided in
the affirmative by the Trial Court as well as by the Appellate Court in
favour of the respondent---Taking congnizance of a suit means to try a civil
suit i.e. summoning defendant, framing of issues and recording of evidence;
therefore, the existence of any such judgment which prevented trial of a
subsequent suit is relevant and binding in a subsequent civil suit as res
judicata---Production of certified copies of pleadings and former judgment
were sufficient proof of existence of former judgment of a competent Court
of law; therefore, principle of res judicata not only bars institution of a
subsequent suit rather prevents the trial of a subsequent suit through
recording of evidence---If such practice is allowed to prevail then, the
principle/doctrine of res judicata would lose its legal sanctity/significance--
-Principle of res judicata is based on public policy that it is in the interest of
State that there should be an end of litigation and no one should be vexed
twice for the same cause---If it is declared that res judicata is a mixed
question of law and fact, then there would be no end of subsequent
litigations---Civil petition was dismissed accordingly.
Amjad Hussain Khosa for Petitioner.
Ahsan Rafiq Rana for Respondent No.1.
Muhammad Aslam Jamali, Assistant Advocate General for Respondents
Nos.2 and 3.
Date of hearing: 21st March, 2023.

JUDGMENT

GUL HASSAN TAREEN, J.----This civil revision petition, filed under

section 115, the Civil Procedure Code, 1908 ('Code'), is directed from the
order and decree dated 27 December, 2021 passed by the Court of Civil
Judge, Sohbat Pur ('Trial Court') and judgment and decree dated 24 June,
2022, passed by the Court of District Judge, Jaffarabad at Dera Allah Yar
('Appellate Court'), whereby, civil suit instituted by the petitioner was
concurrently dismissed.

2. Briefly, facts of the case are that, on 16 March, 2021, the petitioner
instituted a Civil Suit No. 10/2021 for declaration, cancellation of mutation
entries and perpetual injunction with the averments that husband of
petitioner namely Shah Nawaz (late) was the recorded owner of land
bearing survey No. 155, measuring 16 acres situated at Mouza Nouzband,
Tehsil and District Sohbat Pur ('suit land'). After death of her husband, Dad
Muhammad and others illegally dispossessed the petitioner from the suit
land. She filed a petition under sections 3 and 4, the Illegal dispossession
Act, 2005 ('Act') before the Court of Sessions Judge, Dera Allah Yar, which
was accepted vide judgment dated 31st May, 2008. The said Dad
Muhammad and others impugned judgment before this Court, which was
dismissed vide judgment dated 19 July, 2013 and the same order was also
upheld by the Supreme Court of Pakistan vide order dated 18 October,
2016. The petitioner filed an application for compliance of the order of the
Sessions Judge, Dera Allah Yar, which was accepted and the possession of
the suit land was restored to her. After getting possession, respondent No.1
('respondent') instituted a civil suit against the petitioner and others for
declaration and recovery of possession of the suit land, which was
contested by the petitioner by pleading that respondent has fraudulently
transferred mutation entry of the suit land to his name with the connivance
of the Revenue Authority. Finally, the petitioner prayed declaration that her
husband was the recorded owner of the suit land and declaration of
ownership, declaration that mutation of the suit land in the name of
respondent is illegal, cancellation of such mutation entry and perpetual
injunction.

3. The respondent filed his written statement and also made an

application under Order VII, Rule 11, the Code. The Trial Court framed
following issue:

Whether suit of plaintiff is maintainable under section 11, C.P.C.?'

4. After hearing both sides, the Trial Court held that suit of the petitioner
is barred by Res judicata vide impugned order dated 27 December, 2021,
which was affirmed on appeal by the Appellate Court vide judgment and
decree dated 24 June, 2022.
5. Mr. Amjad Hussain Khosa Advocate, representing petitioner, states
that suit instituted by the petitioner was not barred by the doctrine of
resjudicata. In alternate, he states that the question of res judicata is a
mixed question of law and fact, which should not have decided by the Court
below without recording of evidence. Finally, he requests for setting-aside
of impugned order and judgment and remand of the case to the Trial Court
for decision of suit on merits after recording of evidence.
6. Mr. Ahsan Rafique Rana Advocate, representing respondent states that
in this case, the issue of resjudicata is a pure question of law, which does
not require prove through recording of evidence. He states that the former
judgments of the Trial Court as well as of the Appellate Court between the
same parties do not require further proof; therefore, the Trial Court as well
as the Appellate Court have rightly dismissed the suit of the petitioner.
Finally, he states that there are concurrent findings in favour of the
respondent and petitioner failed to point out any material illegality and
irregularity in the impugned order/ judgment; therefore, the petition should
be dismissed.
7. Heard learned counsel for the parties at length and gone through the
record.
 8. Prior to the suit of petitioner, on 15 June, 2017, the respondent
instituted a Civil Suit No. 03/2020 against the petitioners and others before
the Court of Civil Judge, Dera Allah Yar for declaration, possession and
perpetual injunction in respect of land bearing survey No.155, measuring 16
acres, Mouza Nouzband ('suit land'). The suit was contested by the
petitioner and others. In such suit, the petitioner in her written statement
contended that the mutation in the name of the respondent, in respect of the
suit land, is result of fraud. In the former suit of respondent besides other
issues, the Court also framed following issues:
i. Whether the plaintiff is lawful recorded owner of the land bearing
survey No. 155, situated at Deh Nouzband Tehsil Sohbat Pur?
ii. Whether the defendants have left the suit land bearing survey No. 155
in favour of the Government and retained the survey No. 154
situated at Deh Nouzband and survey No. 155 was granted to the
plaintiff by the Government of Balochistan?
9. In such former suit, the respondent as well as the petitioner produced
their respective evidences. The Trial Court decided aforementioned
reproduced issues in favour of the respondent and finally held that
respondent is recorded owner of the suit land and petitioner's husband had
left the suit land in favour of the Government and retained survey No. 154,
vide judgment and decree dated 22 December, 2020 which was also
affirmed on appeal by the Court of Additional District Judge, Dera Allah
Yar in Civil Appeal No. 02/2021, vide judgment and decree dated 17
March, 2021. The concurrent judgments were also affirmed on civil
revision petition, by this Court, vide judgment dated 12 April, 2023.
10. In her subsequent suit, the petitioner has impugned the genuineness
of mutation of the respondent and claimed that her husband was the
recorded owner of the suit land. The issue raised by the petitioner in her
suit was, directly and substantially and collaterally and incidentally, in issue
in the former civil suit of the respondent. The issue of genuineness of the
impugned mutation and resumption of suit land by the Government and its
subsequent transfer in the name of the respondent was finally heard and
decided by a competent Court of law vide judgment and decree dated 22
December, 2020. The petitioner instituted her subsequent suit after decision
of the Trial Court as well as of Appellate Court. When she instituted her
subsequent suit, the issue of genuineness of the impugned mutation entry
was concurrently decided in affirmative by the Trial Court as well as by the
Appellate Court in favour of the respondent.
11. Section 11, the Code, not merely bars the trial of a subsequent suit
rather it also bars adjudication of an issue finally heard and decided by a
competent Court of law between same parties, on same subject matter and
claiming under the same title. The opening words of the text of section 11,
the Code reads as under:
'No Court shall try any suit or issue '
The term 'try' means trial of a suit or an issue through recording of
evidence. The Black's Law Dictionary (Seventh Edition) defines terms 'trial'
and 'try' as under:
'Trial. A formal judicial examination of evidence and determination of
legal claims in an adversary proceeding.'
'Try. To examine judicially; to examine and resolve (a dispute) by means
of a trial.'
Section 11, the Code prevents, even the trial of a subsequent suit or an
issue when same suit or issue was already decided. Apart from section 11,
the Code, Article 54 the Qanun-e-Shahadat Order-10, 1984 ('Q.S.O') is
relevant which reads:
"The existence of any judgment, order or decree which by law prevents
any Court from taking cognizance of a suit or holding a trial, is a
relevant fact when the question is whether such Court ought to take
cognizance of such suit or to hold such trial."
12. The term 'law' employed in Article 54, Q.S.O means law of
resjudicata (for civil cases). Any judgment which prevents any Court from
taking cognizance of a suit or holding a trial is a relevant fact under afore-
reproduced provision of law. The Black's Law Dictionary defines term
cognizance as under:
'Cognizance. 1. The right and power to try and determine cases; 2. The
taking of judicial or authoritative notice; 3. Acknowledgment or
admission of an alleged fact; esp. (hist), acknowledgment of a fine.'
Taking cognizance of a suit means to try a civil suit i.e. summoning
defendant, framing of issues and recording of evidence; therefore, the
existence of any such judgment which prevents trial of a subsequent suit is
relevant and binding in a subsequent civil suit as resjudicata. Production of
certified copies of pleadings and former judgment are sufficient proof of
existence of former judgment of a competent Court of law; therefore,
principle of resjudicata not only bars institution of a subsequent suit rather
prevents the trial of a subsequent suit through recording of evidence. If
such practice is allowed to prevail then, the principle/doctrine of resjudicata
would lose its legal sanctity/significance. The principle of resjudicata is
based on public policy that it is in the interest of State that there should be
an end of litigation and no one be vexed twice for the same cause. If it is
declared that resjudicata is a mixed question of law and fact, then there
would be no end of subsequent litigations. Mere production of certified
copies of former plaint and judgment, would be sufficient for prove of issue
of resjudicata as, both being public documents [Article 85(1)(iii) and (3)
Q.S.O], contents thereof, may be proved by production certified copies
thereof, per Article 88, the Q.S.O; as such, the contention of the petitioner's
counsel is without legal force and substance. The Lahore High Court in the
case reported as Khalid Begum v. Messrs. Settlers (Pvt.) Ltd. (1989 CLC
1718) has held as under:
"Section 11 of the C.P.C. which embodies the principle of res judicata on
its plain language bars the trial of any suit or issue which has been
previously decided between the same parties by a Court of
competent jurisdiction. Bar contained in this section is to the trial of
suit and not only to its decision, the underlying object being that no
person should be vexed twice for the same cause. If the resolution of
the issue is postponed till the end of the trial for its decision along
with other issues, the very purpose of section 11 shall be defeated. In
Shahul Hamid v. Tahir Ali 1980 SCMR 469 this provision was held
to be mandatory and it was observed that the Court is bound to apply
it despite any agreement to the contrary between the parties. It is
thus clear that the refusal of the trial Court to treat the issue of res
judicata as a preliminary issue is contrary to law."
13. The two Courts below have rightly held that 'res judicata' is pure
question of law and subsequent suit of the petitioner was barred by section
11, the Code.

14. For afore discussion, I am not inclined to interfere with the

impugned order/judgment; as such, the civil revision petition fails which is
dismissed.
JK/81/Bal. Revision dismissed.
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