Muhammad Sharif etc Vs ADJ etc

Stereo. H C J D A 38

Judgment Sheet

IN THE LAHORE HIGH COURT, LAHORE

JUDICIAL DEPARTMENT

Writ Petition No. 242257/2018

Muhamad Sharif etc.

Versus

Additional District Judge etc.

JUDGMENT

Date of hearing: 06.05.2026

Petitioners by: Mr. Saad Sibghat Ullah, Advocate assisted by Ms. Maryam Najam Uddin, Advocate.

Respondents No.2, Mr. Muhammad Azam Chughtai, Assistant 3 and 5 by: Advocate General, Punjab.

Respondent No.4 Syed Makhdoom Hussain Gillani, Advocate. by:

MALIK WAQAR HAIDER AWAN, J. Through this constitutional petition, the petitioners have questioned the legality and validity of judgment dated 31.05.2018 passed by learned Additional District Judge, Okara by virtue of which learned revisional court, while accepting the revision petition filed by respondent No.4, set aside order dated 04.06.2015 passed by learned Civil Judge 1 st Class, Okara (whereby learned trial court dismissed the application under Order VII Rule 11 CPC filed by respondent No.4) and consequently the application under Order VII Rule 11 CPC filed by respondent No.4 was accepted.

2.The brief background of the instant litigation is that predecessor- in-interest of the petitioners (namely Din Muhammad, son of Nawab alias Nibbu) purchased the disputed property vide Mutation No.116 dated 09.03.1964 which was incorporated in the Register Haqdaran Zameen in his favour. Upon the death of Din Muhammad, son of Nawab alias Nibbu, inheritance Mutation No.875 dated 25.04.1982 was sanctioned in favour of his legal heirs whereafter at the time of

preparation of Register Haqdaran Zameen for the year 1988-1989, in Khewat No.90, instead of Din Muhammad, son of Nawab alias Nibbu, his name was mistakenly written as Din Muhammad, son of Aziz Bakhsh, which was corrected through Fard Badar No.05 on 22.10.1994 but that Fard Badar was not incorporated in the Register Haqdaran Zameen and his name remained incorporated as Din Muhammad, son of Aziz Bakhsh in the column of ownership, who in Khewat No.85 gifted the land measuring 08 Kanals through Hiba Mutation No.2192 in favour of Muhammad Tufail, son of Muhammad Hussain (respondent No.4). At the time of verification, the Gardawar/Halqa Patwari pointed out this mistake while mentioning that correct name was Din Muhammad, son of Nawab alias Nibbu whose inheritance Mutation was already sanctioned and there was no land in the name of Din Muhammad, son of Aziz Bakhsh in that Khewat. The Gardawar/Halqa Patwari sought correction of this mistake upon which the Revenue Officer/AC-I vide order dated 17.12.2002 cancelled Hiba Mutation in favour of respondent No.4 while maintaining the previous position whereupon appeal was preferred before the Deputy District Officer (Revenue) by respondent No.4 which was dismissed on 18.06.2003. Respondent No.4 filed revision petition before the Executive District Officer (R)/Additional Commissioner (Revenue) which was accepted on 09.06.2004 while holding that correction was illegally made without permission of the Collector which was in violation of Section 45 of the Punjab Land Revenue Act, 1967 and that for longstanding entries under Section 53 of the Punjab Land Revenue Act, 1967, learned civil court could decide regarding title. Subsequently, the petitioners filed ROR No.53/2004 before the Board of Revenue, Punjab which was dismissed on 28.08.2006.

Afterwards, the petitioners instituted a suit for declaration alongwith permanent injunction on 20.01.2007 whereby orders dated 09.06.2004 and 28.08.2006 passed by the EDO(R) and the Member (Judicial-I), Board of Revenue, Punjab, respectively, coupled with Gift Mutation No.2192 dated 17.12.2002 in favour of respondent No.4 were assailed. On 30.10.2009, learned counsel for respondent No.4 submitted

a copy of Register of Record of Rights before learned trial court with the assertion that Mutation No.2192 dated 17.12.2002 had been cancelled whereas learned counsel for the petitioners submitted that the said Mutation was still intact upon which on 03.10.2009, learned trial court summoned Halqa Patwari alongwith relevant record. On 30.10.2009, after perusing the Register of Mutation No.2192 dated 17.12.2002, it was found that the said Mutation was cancelled. After retaining the copy of relevant record qua cancellation of said Mutation, the suit was dismissed for having become infructuous. For ready reference, orders dated 03.10.2009 and 30.10.2009 passed by learned Civil Judge 1st Class, Okara is reproduced hereinbelow :-

Order dated 03.10.2009

Present: Counsel for the parties.

Copy of register of record of rights was filed by the defendant No.3. According to it, mutation No.2192 dated 17.12.2002 had been cancelled. On the other hand, counsel for the plaintiff has submitted that said mutation is still intact. Halqa Patwari alongwith record be summoned for 22.10.2009. Ahlmad is directed to issue the notice to Halqa Patwari for personal appearance.

Announced: 03.10.2009 Civil Judge 1st Class, Okara

Order dated 30.10.2009

Present: Counsel for the parties.

Patwari Niaz Ahmad in person.

The register of mutation was perused. According to it mutation No.2192 had been cancelled. Copy of mutation No.2192 was annexed with the file. The instant suit had become infructuous and the same is dismissed. No order as to costs. File be consigned to the record room after due completion.

Announced: 30.10.2009 Civil Judge 1st Class, Okara

Thereafter, the suit for declaration alongwith permanent injunction filed by the petitioners on 16.02.2010 wherein same orders {orders dated 09.06.2004 and 28.08.2006 passed by the EDO(R) and the Member (Judicial-I), Board of Revenue, Punjab, respectively} coupled

with same Gift Mutation No.2192 dated 17.12.2002 were challenged and additionally, another Mutation No.2646 dated 16.01.2007 was called in question. Respondent No.4 filed an application under Order VII Rule 11 CPC alongwith his written statement. In the written statement, besides certain preliminary objections, respondent No.4 raised an objection regarding Res judicata as well as Order II Rule 2 CPC with the averment that the subsequent suit was not maintainable. In the application under Order VII Rule 11 CPC, respondent No.4 raised identical pleas. The application was contested by the petitioners and learned trial court ultimately dismissed the same on 04.06.2015. Respondent No.4, feeling aggrieved and dissatisfied with the said order, preferred a revision petition before learned revisional court which was finally accepted on 31.05.2018 and plaint of the petitioners was rejected as being not maintainable, compelling them to file the instant petition.

3.Learned counsel for the petitioners contends that learned revisional court mis-applied the principle of Res judicata in contravention of express command of law as embodied in the provisions of Section 11 of CPC. Avers that previously, the suit of the petitioners was not decided by learned trial court through adjudication on merits after conducting hearing and recording evidence rather the same was dismissed by learned trial court on 30.10.2009 merely on account of having become infructuous while considering the assertions made by Halqa Patwari to the effect that the under challenge Mutation No.2192 dated 17.12.2002 had been cancelled in the revenue record, therefore, in the circumstances, the subsequent suit filed by the petitioners could not be held to be barred under the principle of Res judicata in any manner. Argues that learned revisional court erroneously rejected the plaint of subsequent civil suit through the impugned judgment dated 31.05.2018.

4.Conversely, learned counsel for respondent No.4 submits that the subsequent suit was hit not only by the principle of Res judicata but also estoppel by acquiescence and constructive Res judicata as well as being barred by limitation. Adds that Order II Rule 2 CPC was also applicable with full force as the petitioners had relinquished their relief. Argues that

since the former suit of the petitioners was dismissed as being infructuous, therefore, the subsequent suit was not maintainable. Learned Law Officer adopted the arguments advanced by learned counsel for respondent No.4. Lastly, they have prayed for dismissal of the instant petition.

5.Heard. Record perused.

6.The pivotal question requiring determination by this Court is whether, where a former suit has been dismissed as having become infructuous, a subsequent suit would be barred by the principle of res judicata under Section 11 CPC or by the rule of relinquishment of relief embodied in Order II Rule 2 CPC.

7.Perusal of the record, especially order dated 30.10.2009 passed by learned Civil Judge 1st Class, Okara in the former suit, divulges that in the former suit, cause of action arose to the petitioners against Mutation No.2192 dated 17.12.2002 which, according to Register of Mutations, was got cancelled as a sequel to which the suit was dismissed being infructuous. In the subsequent suit, the petitioners challenged the same orders and Mutation including incorporation of Mutation No.2646 dated 16.01.2007 (not sanctioned) on the basis of order dated 28.08.2006 handed down by the Member (Judicial-I), Board of Revenue, Punjab, in ROA No.53/2004.

8.The contents of the plaint in the subsequent suit are equally important. It was alleged in the plaint that Mutation No.2646 was incorporated on 16.01.2007 at the back of the petitioners and that too, in presence of interim injunction passed by learned trial court, due to which the Revenue Officer on 20.01.2007 ordered that the same be reproduced after the decision by learned civil court. It was asserted in the plaint that incorporation of Mutation No.2646 dated 16.01.2007 was on record but inspite of this fact, Halqa Patwari did not apprise this fact to learned trial court while appearing on 30.10.2009 and only submitted a copy of cancellation of Mutation No. 2192 dated 17.12.2002.

9.It is a well celebrated Latin Maxim actus curiae neminem gravabit (an act of the Court shall prejudice no one). Likewise, a party could not be penalized by the act or omission of a public functionary (Halqa Patwari in this case who did not intimate the court about incorporation of Mutation No.2646 dated 16.01.2007 regarding the same property).

10.There is no gain saying the fact that public document is notice to all (general public). Mere incorporation of Mutation does not make it a public document until it has been sanctioned and as such the same has no bearing in law. In the present case, though Mutation No.2646 dated 16.01.2007 was incorporated in record but remained unsanctioned and as such could not be termed as public document. Even the record does not suggest that the petitioners were aware of it. Moreover, Mutation No.2646 dated 16.01.2007 was not sanctioned and its mere incorporation neither runs as Res judicata nor falls in the ambit of relinquishment of relief in first suit. In the wake of foregoing, the rule of relinquishment of relief under Order II Rule 2 CPC is not attracted.

11.It is an admitted position that the former suit was not decided on merits rather the same was dismissed as having become infructuous on the premise that Mutation No.2192 dated 17.12.2002, which was under challenge therein, had already been cancelled. A bare perusal of order dated 30.10.2009 reveals that the disposal of the former suit was effected without any adjudication on the merits of the controversy and without conscious application of judicial mind to the rights and liabilities of the parties. Moreover, in the former suit, neither were the rights of the parties in respect of the matter in issue finally determined, nor were any conclusive findings recorded by learned trial court. Consequently, upon cancellation of Mutation No.2192 dated 17.12.2002, the grievance of the petitioners stood redressed at that stage, therefore, no occasion survived for continuation of the said proceedings.

12.It is apposite to mention here that there is a clearcut distinction amongst the terms “dismissed”, “dismissed as infructuous”, “dismissed

for non-prosecution” and “dismissed as withdrawn” and all these types have different legal implications as follows:-

TYPES OF DISMISSAL

DISMISSED

Meaning/explanation Legal implications

It means dismissal of the suit on Res Judicata applies. merits when the Court has adjudicated upon the rights and Fresh suit on the same cause of liabilities of the parties after action is barred when considering the material controversy amongst the parties available on record and has has been finally decided and trial found the claim to be legally has come to a definitive end. unsustainable.

DISMISSED AS INFRUCTUOUS

Meaning/explanation Legal implications

It occurs when the purpose of Res Judicata does not operate as the litigation has already been the Court never actually decided served or the cause of action has who was legally right or wrong. vanished due to subsequent events. In simple terms, the case Though fresh suit on the same has become meaningless, cause of action cannot be filed, redundant or a dead letter. however, if a new grievance arises from the same matter, the plaintiff can file a suit afresh.

DISMISSED FOR NON-PROSECUTION

Meaning/explanation Legal implications

This is a procedural dismissal of Res judicata applies in a sense the suit when the plaintiff does that a fresh suit is barred and the not appear when the case is plaintiff can get the suit restored called on for hearing but the by filing an application for defendant appears (unless the restoration of the case under defendant wholly or partly Order IX Rule 9 CPC within the admits the plaintiff’s claim). prescribed period.

DISMISSED AS WITHDRAWN

Meaning/explanation Legal implications

This occurs when the plaintiff Res judicata does not apply voluntarily asks the Court to provided the plaintiff withdraws allow him to take the case back. the suit with permission to file afresh.

If he withdraws without seeking or being granted permission to file afresh, he is precluded from filing a new suit on the same cause of action under Order XXIII Rule 1 CPC and the door is closed forever.

13.In these circumstances, this Court is of the considered view that in the instant matter, the former suit, having not been decided on merits, could not operate as a bar to the subsequent suit filed by the petitioners under the principle of res judicata embodied in Section 11 CPC or the Rule contained in Order II Rule 2 CPC.

14.It is a settled and time-honoured principle of jurisprudence, embodied in the Latin maxim ubi jus ibi remedium, that where the law confers a right, it also provides a remedy for the enforcement and protection of such right. The object of administration of justice is not merely to recognize rights in the abstract but also to ensure that an aggrieved person is afforded an effective legal remedy against the infringement thereof. A lawful claim cannot be rendered remediless merely on account of technicalities, particularly where a dispute inter se the parties has not been adjudicated upon on merits.

15.It is trite law that, while keeping in view the four corners of law and procedural technicalities, the basic object and purpose behind the creation of Courts is to dispense substantial justice. Courts exist primarily to advance the cause of substantial justice and not to defeat legitimate rights on mere procedural technicalities. Procedural laws are handmaids of justice and are required to be interpreted in a manner that facilitates adjudication of disputes on merits. Hence, in the light of the

above-mentioned facts and while overcoming the hurdles of technicalities, it would be in the fitness of things that the case be heard and decided by Trial Courts on merits with regard to the title of the parties so that substantial justice may be done.

16.In the light of above discussion, this constitutional petition is allowed and judgment dated 31.05.2018 passed by learned Additional District Judge, Okara is hereby set aside and order dated 04.06.2015 handed down by learned Civil Judge 1st Class, Okara is restored, as a sequel to which the suit for declaration alongwith permanent injunction titled Muhammad Sharif etc. v. Province of Punjab etc. shall be deemed pending before learned trial court at Okara and proceedings shall start from the stage when the plaint was rejected. Keeping in view the fact that the suit was instituted in the year 2010 and plaint was rejected in the year 2015, it is expected that learned trial court shall decide the lis expeditiously in the shortest span of time in accordance with law.

(MALIK WAQAR HAIDER AWAN)

JUDGE

Signed

Abis Ali

APPROVED FOR REPORTING

JUDGE