W. P. No. 13135 of 2014, heard on 7th April, 2016.
Civil Procedure Code (V of 1908)—
—-O. XIV, R. 5 & S. 11—Framing of additional issues— Interim order— Res judicata, principle of—Applicability—Application for framing of additional issues was moved which was accepted partially and an additional issue was framed—Another application was filed for framing of additional issues which was dismissed concurrently—Validity—Interim order could be altered or varied by subsequent applications for the same relief but only on proof of new facts or new situations which subsequently emerged—Principle of res judicata did not apply to the findings on which such orders were based—If applications were made for relief on the same basis after one had been disposed of then court would be justified in rejecting the same as an abuse of process of law— Applicants knowing the controversy and issues had led their complete evidence—Second application by pleading the same facts and grounds which were urged in the first was moved—Issues proposed in the second application were also proposed in the first application—Question of facts and law raised in the first application were directly and subsequently involved in the second application—No new ground or fact was urged in the second application—Principle of res judicata was applicable to the second application for framing of additional issues—Second application was neither competent nor could be allowed—Constitutional petition was dismissed in circumstances.
Maharajadhiraj Sir Rameshwar Singh Bahadur v. Hitendra Singh and others AIR 1924 Privy Council 202; Satyadhan Ghosal v. Sm. Deorajin Debi AIR 1960 SC 941; Arjun Singh v. Mohindra Kumar and others AIR 1964 SC 993; Khialdas and another v. Mahraj Gopi Krishin and others PLD 1969 Kar. 646; Mst. Shahzad Bibi and another v. Gulzar Khan PLD 1973 Lah. 878; Muhammad Ajmal Khan v. Lt. Col. Muhammad Shafaat and 4 others PLD 1976 Lah. 396 and ICIC v. Mian Rafiq Saigol and others PLD 1996 Lah. 528 rel.
Maqbool Hussain Sheikh for Petitioners.
Atif Mohtasham Khan for Respondents Nos. 1 to 5.
Awais Tauseef and Kh. Tahir Ahmad for Respondents Nos.6(i) to 6(iii).
Date of hearing: 7th April, 2016.
JUDGMENT
SHAHID WAHEED, J.—This constitutional petition calls into question the orders of the learned Courts below whereby petitioners’ second application under Order XIV, Rule 5, C.P.C. for framing of additional issue was dismissed.
2. This petition arises from three consolidated suits which related to the land measuring 986-Kanals 16-Marlas situated in village Fateh Jang Singhwala, Tehsil and District Lahore. The suit land which was owned by the predecessors of the petitioners stood transferred in the name of respondents Nos.1 to 6 vide sale mutations Nos.125, 126 and 127. The said three mutations were attested on 16.03.1971 and were challenged through three separate declaratory suits which were instituted on 04.09.2003. The respondents contested the claim set up in the plaint inter alia pleading that the predecessors of the petitioners appointed Shah Nasir Hussain as general attorney vide registered general power of attorney dated 30.01.1962; and, that the said attorney sold the suit land to them vide agreement dated 15.01.1971 and on its basis mutations were sanctioned.
3. On pleadings of the first suit challenging mutation No.125 dated 16.03.1971, the learned Trial Court vide order dated 04.05.2005 framed following issues:-
1. Whether the suit is hopelessly barred by limitation? OPD
2. Whether this Court has no jurisdiction to try the instant suit? OPD
3. Whether the suit is not maintainable in its present form? OPD
4. Whether the suit is barred under sections 42 and 56 of the Specific Relief Act, therefore, the plaint is liable to be rejected under Order VII, Rule 11, C.P.C.? OPD
5. Whether the plaintiffs are estopped by their conduct and by record to file the instant suit? OPD
6. Whether the plaintiffs have not come to this Court with clean hands? OPD
7. Whether the suit is frivolous and vexatious and the defendants are entitled to special costs under section 35 A, C.P.C.? OPD
8. Whether the suit is incorrectly valued for the purposes of court-fee and jurisdiction, if so, what is its correct valuation? OP. Parties
9. Whether the plaintiffs are entitled to get a decree as prayed for? OPP
10. Relief?
4. Subsequently on 09.05.2005 the petitioners filed an application under Order XIV, Rule 5, C.P.C. for framing of additional issues (hereinafter called the first application). It was pleaded in the application that since the respondents/ defendants Nos.1 to 6 were relying upon forged and fake agreement to sell and power of attorney, the following additional issues were required to be framed (hereinafter called the first proposed issues):-
“i. Whether the plaintiffs/Predecessor in interest Shah Nasir Hussain sold the land in dispute in favour of the defendants and received consideration thereof? OPD
ii. Whether valid and lawful mutation of sale dated 16.03.1971 was duly entered and sanctioned with respect to the alleged sale relied upon by the defendants? OPD
iii. Whether the plaintiffs/Predecessor in interest Shah Nasir Hussain entered into an agreement to sell dated 15.03.1 in favour of the defendants? OPD
iv. Whether late Shah Nasir Hussain obtained alleged registered power of attorney dated 29.01.1962 in his favour from his brothers namely Shah Badar Hussain and Shah Sadar Hussain as claimed by the defendants and whether the said power of attorney could have been got registered in Sindh with respect to the land in dispute situated at Lahore? OPD”
5. The first application was resisted. The learned Trial Court, however, vide order dated 02.12.2005 partially accepted the first application and framed the following additional issue i.e. issue No.8-A:
“8-A Whether the oral sale as well as mutation No.125 sanctioned on 16/03/1971 and the entries made in the revenue record on the basis of these mutations are based on fraud, and are without consideration, void ab initio and ineffective on the rights of the plaintiffs? OPP”
6. Later on, the other two declaratory suits challenging mutations Nos.126 and 127 were consolidated with the declaratory suit challenging mutation No.125; and, therefore, the learned Trial Court vide order dated 10.05.2010 settled following consolidated issues:-
“1. Whether the suit is hopelessly barred by limitation? OPD
2. Whether this Court has no jurisdiction to try the instant suit? OPD
3. Whether the suit is not maintainable in its present form? OPD
4. Whether the suit is barred under sections 42 and 56 of the Specific Relief Act, therefore, the plaint is liable to be rejected under Order VII, Rule 11, C.P.C.? OPD
5. Whether the plaintiffs are estopped by their conduct and by record to file the instant suit? OPD
6. Whether the plaintiffs have not come to this Court with clean hands? OPD
7. Whether the suit is frivolous and vexatious and the defendants are entitled to special costs under section 35 A, C.P.C.? OPD
8. Whether the suit is incorrectly valued for the purposes of court-fee and jurisdiction, if so, what is its correct valuation? OPP”
9. Whether the oral sale as well as mutation No.126 sanctioned on 16.03.1971 and the entries made in the revenue record on the basis of these mutations are based on fraud and are without consideration, void ab initio and ineffective on the rights of the plaintiffs? OPP
10. Whether the Mutation No.127 sanctioned on 16.07.1971 and the entries made in the revenue record on the basis of these mutations are based on fraud and are without consideration, void ab initio and ineffective on the rights of the plaintiffs? OPP
11. Whether the Mutation No.125 sanctioned on 16.03.1971 and the entries made in the revenue record on the basis of these mutations are based on fraud and are without consideration, void ab initio and ineffective on the rights of the plaintiffs? OPP
12. Whether the suit of the plaintiffs is entitled to a decree as prayed for? OPP
13. Relief?”
7. After framing of consolidated issues the petitioners concluded their evidence on 22.02.2010 and, statements of six witnesses of respondents/defendants were recorded. At this stage, the petitioners on 05.12.2013 filed a second application under Order XIV, Rule 5, C.P.C. (hereinafter called the second application) for framing of additional issue. It was urged in the second application that the main dispute between the parties was with regard to the land which the respondents claimed to have been sold to them through the attorney namely Shah Nasir Hussain on the basis of general power of attorney and, therefore, issue to this effect was required to be framed. On the basis of said assertion it was prayed that the following issue be framed (hereinafter called the second proposed issue):-
“Whether the General Power of Attorney in favour of Shah Nasir Hussain was duly executed by Shah Sadar Hussain and Shah Mansoor Hussain? OPD”
8. The second application was resisted by the respondents. After appraising record the learned Trial Court dismissed the said application vide order dated 17.12.2013. The petitioners sought revision of the said order by filing a petition under section 115, C.P.C. before the learned Additional District Judge, Lahore. The learned Revisional Court after examining the record upheld the findings of the learned Trial Court. The revision was, therefore, dismissed vide judgment dated 05.05.2014. Hence, this petition.
9. The resume of afore stated facts of the instant case gives rise to a question that whether an issue of fact or law decided even in an interlocutory proceedings could operate as res judicata in a later proceedings or more precisely whether the principle of res judicata was applicable to the petitioners’ second application under Order XIV, Rule 5, C.P.C. for framing of additional issue.
10. In order to find out the answer to the said question, it is essential to survey the case law on the subject. In this regard the first case which may be cited is the case of “Maharajadhiraj Sir Rameshwar Singh Bahadur v. Hitendra Singh and others” (AIR 1924 Privy Council 202) wherein the following principle laid down in the case of Kirpul Shukul v. Mt. Rup Kuari (1884) 6 All.269 was re affirmed:-
“The question, if the term `res judicata’ was intended, as it doubtless was, and was understood by the Full Bench, to refer to a matter decided by a Court of competent jurisdiction in a former suit, was irrelevant and inapplicable to the case. The matter decided by Mr. Probyn was not decided in a former suit, but in a proceeding of which the application in which the orders reversed by the High Court were made was merely a continuation. It was a binding between the parties and those claiming under them as an interlocutory judgment in a suit is binding upon the parties in every proceedings in that suit, or as a final judgment in a suit as binding upon them in carrying the judgment into execution. The binding force of such a judgment depends not upon S.13, Act X of 1877, but upon general principles of law. If it were not binding there would be no end to litigation.”
11. In the case of Satyadhan Ghosal v. Sm. Deorajin Debi, (AIR 1960 SC 941) it was held as follows:-
“The principle of res judicata is based on the need of giving a 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 two parties in one suit or proceeding and the decision is final, either because no 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 suit 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 matter in one way will not allow the parties to re-agitate the matter again at a subsequent stage of the same proceedings.”
12. The principle settled in the case of Satyadhan Ghosal (supra) was followed by the Indian Supreme Court in the case of “Arjun Singh v. Mohindra Kumar and others” (AIR 1964 Supreme Court 993), and it was held as follows:
“That the question of fact which arose in the two proceedings 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 S. 11 but is of more general application is also not in dispute. Again, res judicata could be as much applicable to different stages of the same suit as to findings on issues in different suits”.
13. In the case of “Khialdas and another v. Mahraj Gopi Krishin and others” (PLD 1969 Karachi 646), it was held as follows:-
“As I have observed, Revision Application No.82 of 1968 has been filed by the plaintiffs-applicants against the judgment of the learned District Judge, by which the learned District Judge dismissed their application for the appointment of a receiver on the ground inter alia that this application was barred by res judicata. Learned counsel for the plaintiffs-applicants conceded that the plaintiffs had filed an application under Order XL, rule 1, C.P.C. in 1966 which had been dismissed on 21st March 1966, and the order dismissing that application had become final. He also admitted that the second application filed by the plaintiffs, which had been allowed by the trial Court on 20th November 1967, had been filed on the same facts as had been relied upon in the earlier application. As the earlier order of dismissal had become final it is clear that the learned District Judge has rightly held that their second application was barred by res judicata. The revision Application is, therefore, without merit and is dismissed.”
14. This Court in the case of “Mst. Shahzad Bibi and another v. Gulzar Khan” (PLD 1973 Lahore 878), while examining the provisions of section 11, C.P.C. held as follows: –
“The principle that a party is not to be vexed twice over for the same cause is acknowledged in sections 10 and 11 of the Code of Civil Procedure and even where section 11 does not in terms apply, the general principles of res judicata have always been invoked by Courts of law to achieve finality in litigation. The principle applies as between two stages in the same litigation. An issue decided in one way at an earlier stage is not allowed to be re-canvassed at a subsequent stage.”
15. The learned Full Bench of this court in the case of “Muhammad Ajmal Khan v. Lt. Col. Muhammad Shafaat and 4 others” (PLD 1976 Lahore 396) also examined applicability of the provisions of section 11, C.P.C. to the interlocutory orders passed in a suit. It was held as follows: –
“I now proceed to attend to the other limb of the argument of the learned counsel in this respect, namely, whether the principle of res judicata or the principle of finality is confined only to judgments or extends to decisions or orders also. Authorities are not lacking that these principles extend to decisions or orders as well, for instance sec. G. H. Took v. Administrator General of Bengal and others (2) and Sourendru Mohan Sikta and others v. Holi Irshad Singh and others (3) where the Privy Council held that interlocutory order in a suit was res judicata till the conclusion of that suit. Similarly the doctrine has been applied to other decisions for example in execution proceedings, arbitration proceedings, probate proceedings, Insolvency proceedings, and various other proceedings of similar type.”
16. The applicability of the principles of res judicata to the interlocutory/interim orders also came under consideration in the case of “I.C.I.C. v. Mian Rafiq Saigol and others” (PLD 1996 Lahore 528) and this Court after examining all the case law on the subject concluded as follows:-
“That in spite of the fact that strict principles of res judicata are not applicable to interim orders of procedural nature, yet, if a substantial question is decided by an interim order and findings are rendered by the Courts, and became final either without challenge and after challenge before the higher forums, the original Court is precluded to render contradictory findings at a subsequent stage of the same lis particularly when the question in substance is almost the same;”
17. The dictum laid down in the afore referred cases is that interim 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 in the process of law.
18. Now, the facts of the present case are analysed in the light of above said dictum. In the present case the petitioners had challenged the sale mutations Nos.125, 126 and 127 through which the suit land stood transferred in the name of the respondents Nos.1 to 6 on the ground of fraud whereas the claim of the respondents was that the predecessor of the petitioners had appointed Shah Nasir Hussain as attorney vide registered power of attorney dated 30.01.1962 and the said attorney had sold the suit land to them vide agreement dated 15.01.1971; and, that on the basis of said agreement, mutations Nos.125, 126 and 127 were sanctioned. This rival stance was not reduced into issue and, thus it led the petitioners to file first application under Order XIV, Rule 5, C.P.C. for framing of first proposed issues which included “whether late Shah Nasir Hussain obtained alleged registered power of attorney dated 29.01.1962 in his favour from his brothers namely Shah Badar Hussain and Shah Sadar Hussain as claimed by the defendants and whether the said power of attorney could have been got registered in Sindh with respect to land in dispute situated at Lahore”. Since the petitioners/plaintiffs in their plaint had not challenged the validity of General Power of Attorney executed in favour of Shah Nasir Hussain, the learned Trial Court vide order dated 02.12.2005 partially accepted the first application and framed issue with regard to the validity of sale mutations. This order was not challenged by the petitioners and, thus, the same attained finality. After consolidation of all three suits, the learned Trial Court vide order dated 10.05.2010 framed issues Nos.9, 10 and 11 which were about the validity of mutations Nos.125, 126 and 127. The petitioners/plaintiffs knowing the controversy and issues led their complete evidence. At the fag end of recording of defendant’s evidence, the petitioners/ plaintiffs filed another application (i.e. second application) under Order XIV, Rule 5, C.P.C. for framing of second proposed issue i.e. “whether the General Power of Attorney in favour of Shah Nasir Hussain was duly executed by Shah Sadar Hussain and Shah Mansoor Hussain”, by pleading the same facts and grounds which were urged in the first application. The second proposed issue was also proposed in the first application under Order XIV, Rule 5, C.P.C. The questions of facts and law raised in the first application were directly and substantially involved in the second application. No new ground or fact was urged in the second application. The principle of res judicata was fully applicable to the second application for framing of additional issue, that is, second proposed issue and, therefore, the same was neither competent nor could be allowed.
19. In the sequel, this petition being bereft of any merit is dismissed.
ZC/T-10/L Petition dismissed.