Mst.Noor Bibi vs Mst.Sakeena Mai etc.

Stereo. H C J D A 38 Judgment Sheet

IN THE LAHORE HIGH COURT,

LAHORE.

(JUDICIAL DEPARTMENT)

Civil Revision No.1384/2010

Mst. Nooran Bibi vs.

Mst. Sakeena Mai alias Karmai etc.

JUDGMENT

Date of Hearing 22.06.2022.

For Petitioner Sheikh Naveed Shaheryar, Advocate Respondent No. 1 Ex-parte through Order dated Respondents No. Ex-parte through Order dated 2 to 4 27.10.2020

MUHAMMAD RAZA QURESHI, J. This Civil Revision questions the legality and validity of the Judgments and Decrees dated 22.01.2008 and 02.03.2010 passed by learned Trial Court as well as learned Appellate Court below, whereby a preliminary Issue was framed for determining whether the plaint in the Suit filed by the Petitioner was hit by constructive res judicata in terms of Section 11, Explanation IV of Code of Civil Procedure, 1908 (“CPC”) and on the basis of which the learned Courts below concurrently rejected the plaint in the Suit filed by the Petitioner.

2.Learned counsel for the Petitioner has argued before this Court that both Courts below erred in law by relying upon the Judgment and Decree passed in a former Suit inter se Mst. Sakina Mai (“Respondent No.1”), Allah Wasaya, deceased husband of the Petitioner, Faiz Rasool and Atta Rasool (“Respondents No.2 and 3”) respectively.

3.According to learned counsel, even if the Courts below had to reach to a conclusion that the plaint in the Suit filed by

the Petitioner was liable to be rejected, that could have only been done after adducing in evidence the plaint of the former Suit, Issues framed and Judgment passed therein. Learned counsel in this regard has placed reliance upon “Ghulam Muhammad and others vs. Muhammad Hussain and others” (PLD 2006 Lahore 223). According to learned counsel, by rejecting the plaint, both Courts below have left the Petitioner remediless who had a lawful claim of Haq-ul-Mahr according to the entries contained in the column of the Nikkah Nama of Petitioner and her husband Allah Wasaya. Learned counsel contends that by passing the Impugned Judgments and Decrees, the learned Courts below have committed material illegality which is to be checked by this Court in exercise of its supervisory jurisdiction.

4.Since the Respondents have already been proceeded ex- parte and made no effort to get those orders set aside, therefore, the arguments of the learned counsel for the Petitioner have been heard and record with his able assistance has been perused.

5.In the instant case it appears from the record that the controversy, inter se, the parties pertains to two rounds of litigation. The first round of litigation was initiated by the Respondent No.1 against her brother Allah Wasaya and others, whereas the second round of litigation is the subject matter of the instant proceedings. The test to be adjudged is whether the plaint in the second round of litigation was rightly rejected on the basis of applicability of constructive res judicata?

6.In the first round of litigation with respect to the suit property i.e. land admeasuring 120 Kanals comprising of Khata No. 61, Khasras No. 103/3 to 5, 104/3 to 8 and 105/3 to 8, 15 Qitats, situated in Chak No.70/TDA, Tehsil and District Bhakkar, (the “subject matter property”) was initially owned by the Provincial Government and was allotted to one

Ghulam Hussain under “Abad Kari Scheme” which was a Settlement Scheme. After clearance of all sums, the transfer of proprietary rights was vested in favour of Ghulam Hussain. However, before the transfer of the proprietary rights in his favour the said Ghulam Hussain passed away and his son Allah Wasaya through inheritance Mutation No.57 dated 29.05.1978 got the subject matter property transferred in his name.

7.Since Ghulam Hussain had two children namely Allah Wasaya (husband of present Petitioner) and Respondent No.1 (daughter of Allah Wasaya), therefore, the Respondent No.1 filed a Suit bearing No.548/1997, against Allah Wasaya as Defendant No.1, the Province of the Punjab through Collector and Assistant Collector, Bhakkar as Defendants No.2 and 3 respectively, Faiz Rasool and Atta Rasool as Defendants No.4 and 5, respectively (the “Former Suit”).

8.The Former Suit was for declaration seeking cancellation of inheritance Mutation bearing No.57 dated 29.05.1978, wherein the Respondent No.1 claimed that she being daughter of deceased Ghulam Hussain was deprived of her inheritance rights in the subject matter property. During the pendency of the Former Suit, Allah Wasaya passed away and present Petitioner, Mst.Nooran Bibi was impleaded as party being his widow.

9.The Learned Trial Court in the Former Suit after framing of Issues declared Respondent No.1 entitled to 1/3rd share of the subject matter property i.e. 40 Kanals out of 120 Kanals, whereas, Allah Wasaya was held entitled to 2/3rd share i.e. the remaining 80 Kanals. The learned Trial Court in Former Suit also declared Faiz Rasool and Atta Rasool being Defendants No.4 and 5 as bona fide purchasers and upheld the sale in their favour made by Allah Wasaya to the extent of 40 Kanals out of his total inherited share of 80 Kanals.

10.The Judgment and Decree passed in the Former Suit was assailed by Allah Wasaya deceased through present Petitioner, Mst.Nooran Bibi and same was dismissed through Judgment and Decree dated 08.05.2002 passed by learned Appellate Court. The present Petitioner also challenged both the Judgments and Decrees in Civil Revision No.1483/2002, which was also dismissed by this Court through Judgment dated 04.12.2002. Consequently, the Judgment and Decree in the Former Suit attained finality.

11.The share and right to the extent of Respondent No.1 attained finality, who held her share through inheritance from the subject matter property. Simultaneously, the purchased rights of Faiz Rasool and Atta Rasool i.e. Respondents No.2 and 3 also attained finality to the extent of 40 Kanals out of the subject matter property.

12.In the second round of litigation, which is subject matter of the instant Civil Revision, the Petitioner, Mst. Nooran Bibi widow of Allah Wasaya filed a Suit bearing No.27 of 2007 on 19.01.2004 against Respondent No.1, Respondents No.2 and 3 and one Bashir Ahmad by impleading him as Defendant No.4 (who was also brother of Mst.Nooran Bibi).

13.This Suit was for declaration that Petitioner being Plaintiff be declared owner of 80 Kanals land out of total 120 Kanals of the subject matter property and challenged the Mutation No.160 dated 09.04.1996 in favour of Respondents No.2 and 3 which had already attained finality in the Former Suit and sought cancellation thereof. The Suit also claimed mesne profit and possession of the land transferred in favour of Respondents No.2 and 3.

14.The contents of the plaint in the Suit reflect that the Petitioner/Plaintiff conceded the right of Respondent No.1 to the extent of 40 Kanals and claimed the subject matter land

only to the extent of 80 Kanals. The paragraphs 1 and 3 of the plaint are reproduced hereunder:

۔ یہ کہ اراضی هٌدرجہ عٌواى کب هبلک غالم حطیي عرف حطٌہ1 کٌبل اش کے پطر ہللا08 قوم راں تھب۔ جطکی وفبت پر اراضی بقدر کٌبل غالم حطیي48 وضبیب جو کہ هدعیہ کب خبوًد تھب کو هلی اور کوهلی۔1کی دختر هدعب علیہ ًوبر

کٌبل صرف128-8 ۔ یہ اهر قببل زکر ہےکہ پہلے ضبلن اراضی3 کو ًہ1 خبوًد ہللا وضبیب کو وراثت هیں هلی تھی اور هدعب علیہ ًوبر ًے دعوی دیواًی کیب اورعدالت1هلی تھی۔ جص پر هدعب علیہ ًوبر کو بھی وارث قرار دیب۔ جص پر هدعب علیہ1ًےهدعب علیہ ًوبر کٌبل وراثت هیں هلی اور هي هدعیہ کے حق48-8 کواراضی1ًوبر کٌبل رٍ گئی۔08-8 هہر کی اراضی صرف

Whereas, to the extent of Respondents No.2 and 3, the Suit claimed as under:

48-8 بیبًی ہیں کہ اًہوں ًے اراضی3-2۔ یہ کہ هدعب علیہ ًوبر4 ازاں خبوًدم ہللا وضبیب ضے خرید کی168کٌبل بسریعہ اًتقبل ًوبر ہے۔ حبالًکہ خبوًدم کو حق هہر هیں دی ہوئی اراضی بیع کرًے کب اختیبر ًہ تھب۔ اًتقبل فرضی اور بال اختیبر ہے۔ The Petitioner also claimed in her Suit that the entry in her Nikkah Nama reflected that 100 Kanals land was fixed in her favour as Haq-ul-Mehr and consequently, the Petitioner sought declaration that her right to Haq-ul-Mehr be admitted by the Defendants in the Suit and sought cancellation of Mutation No.160 dated 09.04.1996.

15.The Suit was tried by learned Trial Court and during the pendency of the Suit, the Respondent No.1 filed an Application under Order VII Rule 11 CPC. The said Application was initially dismissed through Order dated 25.11.2005 passed by learned Trial Court and subsequently the Revisional Court set aside the said Order and directed the learned Trial Court to frame preliminary Issue regarding

maintainability of the Suit. Thereafter, the learned Trial Court on 18.03.2006 framed preliminary issue as under:

Whether the Plaintiff should take the plea in previous litigation that the suit land has been given to her as dower but she did not do so and now the present suit regarding dower is not maintainable and is barred by law? OP Parties.

16.The decision on the said Issue ultimately culminated into Impugned Judgment and Decree dated 22.01.2008 passed by learned Trial Court. Before this Judgment proceeds ahead, three facts are crucial and noteworthy from the Impugned Judgment and Decree passed by the learned Trial Court:

(i)the Petitioner filed an Application for amendment of the plaint on 03.03.2007 seeking impleadment of one Jindo Mai who claimed herself as the mother of the Petitioner’s husband and got the subject matter property transferred on 13.01.2007 through a mutation to the extent of her share being widow of deceased Ghulam Hussain. The said Application for amendment was dismissed by the learned Trial Court;

(ii)the Petitioner who in her Suit had challenged Mutation No.160 dated 09.04.1996 in favour of Respondents No.2 and 3, on 24.03.2005 sought deletion of said Respondents being Defendants from the array of parties and consequently upon the statement of the Petitioner, the learned Trial Court deleted the names of Respondents No.2 and 3 as well as paragraph 4 in respect thereof from the plaint; and

(iii)the suit mentioned in paragraph 5 of the plaint, on account whereof the Defendant No.4, Bashir Ahmad (brother of the Petitioner) was impleaded in the Suit

of Petitioner also stood dismissed through the Judgment and Decree dated 22.12.2006.

17.It was crucial to highlight the above mentioned three admitted facts duly recorded in the Impugned Judgment and Decree as the subject matter Suit against the Respondents stood immediately infructuous thus the learned Trial Court had no reason to determine and hold that the plaint in the Suit was hit by constructive res judicata. Such a determination was merely a superfluous exercise as in the facts and circumstances explained hereinabove, the same was not required at all. This conclusion drawn by this Court is on account of following legal consequences:

a. the Suit filed by the Petitioner never agitated any claim against the share devolved upon the Respondent No.1. The contents of the plaint contained in paragraphs 1 and 3 themselves reflect that out of total 120 Kanals of subject matter property, the Petitioner not only admitted entitlement of her husband, Allah Wasaya to the extent of only 80 Kanals but also admitted the inheritance right of the Respondent No.1 to the extent of 40 Kanals as determined by the Judgment and Decree in the Former Suit. Throughout in the plaint the Petitioner neither claimed her right against the land in the name of Respondent No.1 for recovery of her Haq-ul-Mehr nor in legal parlance she could have claimed so, as admittedly Respondent No.1 inherited the said land from her father and the Judgments and Decrees in Former Suit had attained finality through Judgment of this Court passed in Civil Revision in year 2002. In terms of law the plaint actually failed to disclose a cause of action against the Respondent No.1, particularly when no relief was sought against her;

b. The claim of the Petitioner in her Suit against Respondents No.2 and 3 namely Faiz Rasool and Atta Rasool could have been legally potent if she would have opted to pursue the same till the conclusion of trial, as she sought declaration for cancellation of Mutation No.160 dated 09.04.1996 in their favour. But, in the midstream she opted to abandon and relinquish her claim against the said Respondents No.2 and 3 and through statement of her counsel on 24.03.2005 (which she never challenged) sought deletion of Respondents No.2 and 3 from the array of parties and deletion of paragraph 4 from the plaint in her Suit. By abandoning of her claim against the said Respondents No.2 and 3, for all intents and purposes the Petitioner relinquished her claim or right to the extent of Mutation in their favour, which in effect was the only subject matter of the Suit. As a legal consequence the Suit was liable to be dismissed having become infructuous;

c. Admittedly, no relief was sought against the Defendant No.4, Bashir Ahmad in the Suit and sole ground of his impleadment in the Suit was on the premise that he had filed a suit on the basis of some agreement to sell to the extent of 48 Kanals land owned by Allah Wasaya. The Petitioner in paragraph 5 of her Suit apprehended that if the said suit of Defendant No.4 is decreed the rights of the Petitioner would stand prejudiced. Since the said suit, as recorded by the judgment and decree passed by learned Trial Court, had already stood dismissed through Judgment and Decree dated 22.12.2006, therefore, as a legal corollary thereof the Petitioner’s actionable claim, if any, against the Defendant No.4 had even ceased to exist in the Suit and same had

also become infructuous as far as the Defendant No.4 was concerned.

18.The natural and legal corollary of the findings given above in paragraphs (a) to (c) should have led the learned Trial Court to dismiss the Suit having become infructuous and did not require any adjudication on the issue of applicability of doctrine of constructive res judicata. In any event the plaint in the subject matter Suit was legally bound to fail on account of its failure to disclose a cause of action against the Respondent No.1; abandonment of challenge to the extent of Respondents No.2 and 3 (the subject matter of the Suit); and due to dismissal of suit of Defendant No.4, the actionable claim, if any, against him had ceased to exist and the Suit to this extent had also become infructuous.

19.In view of what has been discussed and declared above, this Court in exercise of its supervisory jurisdiction under section 115 of CPC holds that the rejection of plaint in the Suit filed by the Petitioner by attracting constructive res judicata through Impugned Judgments and Decrees are superfluous and unwarranted and same are modified by holding:

i)that the subject matter Suit of the Petitioner against the Respondents No.2 and 3 is dismissed having become infructuous due to relinquishment of her claim against them and seeking their deletion from the array of parties;

ii)to the extent of Respondent No.4, the Suit of the Petitioner is also dismissed as upon dismissal of suit filed by the said Respondent, the actionable claim, if any, in favour of the Petitioner against the Respondent No.4 has ceased to exist or continue;

iii)so far as the only remaining party i.e. Respondent No.1 is concerned the plaint in the Suit is rejected

under Order VII Rule 11 (a) CPC as it failed to disclose a cause of action against the said Respondent.

20.Consequently, as per declaration of this Court in the preceding paragraph, this Civil Revision is dismissed with no order as to costs.

MUHAMMAD RAZA QURESHI

JUDGE

Approved for reporting

JUDGE

*Ashfaq*