2022 M L D 186

[Islamabad]
Before Aamer Farooq, J
MUHAMMAD YASIN---Petitioner
Versus
ADDITIONAL DISTRICT JUDGE-VII, WEST, ISLAMABAD and
others---Respondents
Writ Petition No.290 of 2013, decided on 22nd April, 2021.
(a) Civil Procedure Code (V of 1908)---
----O.VII, R.11, O.I, R.10 & S.11---Res judicata---Dismissal of application
for impleadment as party---Bar to fresh suit---Scope---Question before
High Court was whether the dismissal of application under O.I, R.10,
C.P.C., constituted res judicata and barred fresh suit---Held; application for
impleadment filed by petitioner in the related suit was based on the
documents appended with the application---Petitioner, in the fresh suit, was
seeking performance of the agreement in his favour; no evidence as such
was recorded on which the Court was to render its findings on the merit and
demerit of the case of the petitioner---Findings given on the application
were based on the documents, appended in related suit and did not
constitute res judicata, barring the petitioner to file fresh suit---
Constitutional petition was allowed, in circumstances and the application
under O.VII, R.11, C.P.C., was dismissed.
Punjab Board of Revenue Employees Cooperative Housing Society
Limited v. Additional District Judge, Lahore and others 2003 SCMR 1284
and Haji Mir Alam Shah and others v. Adam Khan and others 2004 CLC
1100 ref.
Fecto Belarus Tractor Ltd. v. Government of Pakistan through Finance
Economic Affairs and others PLD 2005 SC 605; G.H. Hook v.
Administrator General of Bengal and others AIR 1921 Privy Council 11;
Mst. Rukhsana Tabassum Shaikh v. Kazim Imam Jan and others 2003 CLC
189 and Arjum Singh v. Mohindra Kumar and others AIR 1964 SC 993 rel.
(b) Civil Procedure Code (V of 1908)---
----S.11---Res judicata---Scope---Section 11, C.P.C. as such is not
applicable to the applications.
Gulistan Textile Mills Ltd. and another v. Soneri Bank Ltd. and another
PLD 2018 SC 322 rel.
(c) Civil Procedure Code (V of 1908)---
----S.11 & O. I, R. 10---Res judicata---Application for impleadment as
party, dismissal of---Scope---Person who applied to be made a party but
was refused was not bound by the decision in the suit.
Kala Chand Banerjee v. Jagannath Marwari and another AIR 1927 Privy
Council 108 rel.
(d) Civil Procedure Code (V of 1908)---
----S.11---Res judicata---Compromise decree---Scope---Party whose
application for review of a compromise decree on the ground that he had
not consented was dismissed, cannot sue to set aside that decree on the
same ground.
Kailash Chandra Poddar v. Gopal Chandra Poddar AIR 1915 Calcutta
161(1) rel.
(e) Civil Procedure Code (V of 1908)---
----S.11---Res judicata---Application for review of interim order---Scope---
Rejection of application for review of a preliminary order does not give it
any finality or make it res judicata in a subsequent proceeding.
Taj Begum v. Sarvi Begam AIR 1917 All. 21 rel.
Zulfiqar Ali Abbasi for Petitioner.
Shahid Munir for Respondent No.5.
Zaheer Bashir Ansari for Respondents Nos.6-A to 6-C.
Muhammad Nazir Jawad for Respondent No.7.
Respondents Nos.2 to 4, proceeded ex parte.
Date of hearing: 25th January, 2021.
JUDGMENT
AAMER FAROOQ, J.----The parties are litigating with respect to plot
No.22, street No.95, Sector G-13/1, Islamabad (the property). The referred
property was allotted by the Federal Government Employees Housing
Authority (FGEHA) to one Altaf Hussain, the predecessor in interest of
respondents Nos.2 to 4. An agreement was made for transfer of property to
respondent No. 6, namely Dr. Ali Shahryar, now represented by respondents
Nos.6-A to 6-C, on 04.03.2002. It seems that original allottee also entered
into an agreement with the petitioner on 31-12-2012. Respondents Nos. 6-A
to 6-C filed a suit for specific performance of the agreement against
respondents Nos.2 to 4; in the referred suit, the petitioner made an
application for impleadment as defendant on the basis that he also has an
agreement to sell in his favour. The referred application was dismissed by
the learned Trial Court and was challenged before the Revisional Court,
which also dismissed the plea. The petitioner then filed a suit for specific
performance against respondents Nos.2 to 4, in which respondents Nos.6-A
to 6-C moved an application to be impleaded as defendant, which was
allowed; subsequently, he filed an application under Order VII, Rule 11,
C.P.C., on the basis that the suit filed by the petitioner is barred by res
judicata under section 11 of the Code of Civil Procedure, 1908 (C.P.C.), as
his application for impleadment in another suit stood dismissed on merit
viz. that he has no locus standi in the matter; the referred application was
dismissed by the learned Trial Court vide order dated 02.12.2010. The
matter was challenged by way of civil revision before the learned
Additional District Judge (West), Islamabad and was allowed vide
impugned order dated 03.01.2013.
2. Learned counsel for the petitioner, inter alia, contended that res
judicata shall not apply to the suit filed by the petitioner inasmuch as in the
suit, filed by respondent No.6, application was only decided regarding the
plea for impleadment as a party. It was contended that even otherwise, the
matter can be decided after framing of issues and leading the evidence.
Reliance was placed on Punjab Board of Revenue Employees Cooperative
Housing Society Limited v. Additional District Judge, Lahore and others
(2003 SCMR 1284) and Haji Mir Alam Shah and others v. Adam Khan and
others (2004 CLC 1100).
3. Learned counsel for respondents Nos.6-A to 6-C, inter alia, contended
that as the matter had been decided on merit regarding locus standi of the
petitioner in the transaction with respect to the property, hence res judicata
will apply and the Revisional Court rightly dismissed the suit of the
petitioner.
4. Arguments advanced by the learned counsel for the parties have been
hear land the documents placed on record examined with their able
assistance.
5. Before embarking upon rendering findings on the pleas raised before
the Court, it is pertinent to observe that respondents Nos.2 to 4 were
ordered to be proceeded ex parte. The facts leading to filing of the instant
petition have been mentioned hereinabove, which as such are not
controverted by the learned counsel for the parties. The sole question
involved before the Court is whether dismissal of the application under
Order I, Rule 10, C.P.C., in the suit filed by respondent No.6 against
respondents Nos. 2 to 4 constitutes res judicata in the suit filed by the
petitioner against respondents Nos. 2 to 4 as well as respondent No.6. For
the ease of convenience, the principle of res judicata, as enshrined in
section 11, C.P.C., is reproduced and is as follow:-
"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 by such subsequent suit
 or the suit in which such issue has been subsequently raised, and has
been heard and finally decided by such Court.
Explanation I- The expression "former suit" shall denote a suit which has
been decided prior to the suit in question whether or not it was
instituted prior thereto.
Explanation II.- For the purposes of this section, the competence of a
Court shall be determined irrespective of any provisions as to a right
of appeal from the decision of such Court.
Explanation III.- The matter above referred to must in the former suit
have been alleged by one party and either denied or admitted,
expressly or impliedly, by the other.
Explanation IV.- Any matter which might and ought to have been made
ground of defence or attack in such former suit shall be deemed to
have been a matter directly and substantially in issue in such suit.
Explanation V.- Any relief claimed in the plaint, which is not expressly
granted by the decree, shall, for the purposes of this section, be
deemed to have been refused.
Explanation VI.- Where persons litigate bona fide in respect of public
right or of a private right c/aimed in common for themselves and
others, all persons interested in such right shall, for the purposes of
this section, be deemed to claim under the persons so litigation."
On the basis of above concept of res judicata, including explanations in
section 11, C.P.C. Hon'ble Supreme Court of Pakistan in Fecto Belarus
Tractor Ltd. v. Government of Pakistan through Finance Economic Affairs
and others (PLD 2005 SC 605), deduced the following principles, which are
as follows:-
1. The matter directly and substantially in issue in the subsequent suit or
issue must be the same matter which was directly, and substantially
in issue ether 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."
Section 11, C.P.C., as such is not applicable to the applications, however, in
light of the judgment of the august Supreme Court of Pakistan in case
reported as Gulistan Textile Mills Ltd and another v. Soneri Bank Ltd. and
another (PLD 2018 Supreme Court 322), the principles, as such, were held
to apply to the applications as well. It was observed in paragraph 7 at page
334 of the judgment as follow:-
"However, the said section specifically refers to 'suits' and therefore
restricts the application of the principle thereto. Interlocutory
applications cannot be regarded as 'suits'; hence, strictly speaking
Section 11 of the C.P.C. would not be attracted to such applications.
Nevertheless, the general legal principles of res judicata would most
certainly apply. Therefore an order passed pursuant to any
interlocutory application at one stage of the proceedings would
operate as a bar upon similar interlocutory applications made at a
subsequent stage of the proceedings based on the general principles
of res judicata. However this general rule will not apply where the
order on such interlocutory application does not involve any
adjudication. Examples of such instances are:- where there is no
decision on merits, but a mere expression of opinion not necessary
for the disposal of the application; where a matter, though in issue
has, as a fact, not been heard and decided, either actually or
constructively; where a matter in issue has been expressly left open
 and undecided; where the suit is not pressed; or where the suit is
withdrawn."
The facts, in the instant case, leading to legal question involved are
peculiar and the instant case is of first impression as such, however, in
answering the same, guidance may be obtained from Kala Chand Banerjee
v. Jagannath Marwari and another (AIR 1927 Privy Council 108), wherein
it was observed that a person who applied to be made a party but was
refused is not bound by the decision in the suit. It was further observed that
the decree, which is pleaded as constituting res judicata, on the face of it
bears that it was pronounced in a suit to which the appellant was not a party
and therefore does not come within the rule as to res judicata in section 11,
C.P.C. However, somewhat different proposition was laid down in Kailash
Chandra Poddar v. Gopal Chandra Poddar (AIR 1915 Calcutta 161(1)) and
it was observed that a party whose application for review of a compromise
decree on the ground that he had not consented was dismissed, cannot sue
to set aside that decree on the same ground. In Taj Begum v. Sarvi Begam
(A.I.R. 1917 Allahabad 21), it was observed that rejection of an application
for review of a preliminary order does not give it any finality or make it res
judicata in a subsequent proceeding. In G.H. Hook v. Administrator General
of Bengal and others (A.I.R. 1921 Privy Council 11), it was observed that
the plea of res judicata still remains apart from the limited provisions of the
Code. The principle of res judicata was further elucidated by the Hon'ble
Sindh High Court in case reported as Mst. Rukhsana Tabassum Shaikh v.
Kazim Imam Jan and others (2003 CLC 189) by citing with approval the
dictum in Arjun Singh v. Mohindra Kumar and others (AIR 1964 SC 993).
It was observed as follows:-
"(10) That the question of fact which arose in the two proceeding was
identical would not be in doubt. Of course, they were not in
successive suits so as to make the provisions of S.11 of the Civil
Procedure Code applicable in terms. That the scope of the principle
of res judicata is not confined to what is contained in section 11 but
is of more general application is also not in dispute. Again, res
judicta could be as much applicable to different stages of the same
suit as to findings on issues in different suits in this connection we
were referred to what this Court said in Satydhan Ghosal v. Sm.
Deorajin Debi, (1960) SCR 950: AIR 1960 SC 941 where Das
Gupta, J. speaking for the Court expressed himself thus:
"The principle of res judicata is based on the need of giving finality to
judicial decisions. What it says is that once a res is judicata, it shall
not be adjudged again. Primarily it applies as between past litigation
and future litigation. When a matter-- whether on a question of fact
or on a question of law---has been decided between to parties in one
 suit or proceeding and the decision is final, either because the appeal
was taken to a higher Court or because the appeal was dismissed, or
no appeal lies, neither party will be allowed in a future suite or
proceeding between the same parties to canvass the matter again ..,..
The principle of res judicata applies also as between the two stages
in the same litigation to this extent that a Court, whether the trial
Court or a higher Court having at an earlier stage decided a mater in
one way will not allow the parties to re-agitate the matter again at a
subsequent stage of the proceedings"
Mr. Pathak laid great stress on this passage as supporting him in the two
submissions that he made: (1) that an issue of fact or law decided
even in an interlocutory proceeding could operate as res judicata in a
later proceeding, and next (2) that in order to attract the principle of
res judicata the order or decision first rendered and which is pleaded
as res judicata need not be capable of being appealed against."
"(13) It is needless to point out that interlocutory orders are of various
kinds; some like orders of stay, injunction or receiver are designed
to preserve the status quo pending the litigation and to ensure that
the parties might not be prejudiced by the normal delay which the
proceedings before the Court usually take. They do not in that sense,
decide in any manner the merits of the controversy in issue in the
suit and do not, of course, put an end to it even in part. Such orders
are certainly capable of being altered or varied by subsequent
applications for the same relief though normally only on proof of
new facts or new situations" which subsequently emerge. As they do
not impinge upon the legal rights of parties to the litigation the
principle of res judicata does not apply to the findings on which
these orders are based, though if applications were made for relief
on the same basis after the same has once been disposed of the Court
would be justified in rejecting the same as an, abuse of the process
of Court "
The dictum laid down in the case of Arjun Singh (supra) by Indian
Supreme Court is that (interlocutory) orders are certainly capable of
being altered or varied by subsequent applications for the same
relief; sough normally only on proof of new facts or new situations
which subsequently emerge. As they do not impinge upon the legal
rights of parties to the litigation. The principle of res judicata does
not apply to the finding on which these orders are based, though if
applications were made for relief on the same basis after the same
 has once been disposed of the Court would be justified in rejecting
the same as an abuse of the process of Court"
It can safely be deduced by the above principles of law as cited in various
judgments that the judgment and decree passed in the suit-filed by
respondents Nos. 6-A to 6-C against respondents Nos.2 to 4 shall not be
binding upon the petitioner. It is only the application for impleadment by
the petitioner in their referred suit that was dismissed and the conclusion
was based on the documents appended with the application. In the suit out
of which the instant petition has arisen, the petitioner is seeking specific
performance of the agreement in his favour, no evidence as such has yet
been recorded on which the Court is to render its findings on the merit and
demerit of the case of the petitioner. The finding given on the application
based on the documents, appended in related suit, would not constitute res
judicata, barring the petitioner to file the instant suit.
6. In view of the above discussion of law and facts, the decision rendered
by respondent No.1 is not legally correct, hence not tenable.
7. For what has been stated above, the instant petition is allowed and
impugned decision dated 03.01.2013 is set-aside and the one handed down
by the learned Trial Court vide order dated 02.12.2010 is upheld;
consequently, application of respondents Nos. 6-A to 6-C under Order VII,
Rule 11, C.P.C. stands dismissed.
SA/195/Isl. Petition allowed.
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