Ahsan Sadiq etc. vs Muhammad Hamid etc.

Stereo. H C J D A 38.

JUDGMENT SHEET

LAHORE HIGH COURT

RAWALPINDI BENCH RAWALPINDI

JUDICIAL DEPARTMENT

RFA No.215 of 2022

Ahsan Sadiq, etc. vs. Muhammad Hamid, etc.

JUDGMENT

Dates of 10.09.2026, 16.09.2026, 17.09.2026, Hearing: 22.09.2026, 23.09.2026, 29.09.2026, 06.10.2026 and 07.10.2026.

Appellants by: Mr. Mujeeb-ur-Rehman Kiani, Advocate.

Barrister Emad Chaudhry, Advocate.

Mr. Muhammad Ali Chaudhry, Advocate.

Respondents Mr. Muhammad Ilyas Sheikh, No.1 and 7 by: Advocate.

Respondent No.2 Mr. Hafeez-ur-Rehman, Advocate. by:

Respondents Proceeded against ex-parte on No.3 to 6: 15.11.2023.

Respondent Proceeded against ex-parte on No.8: 08.02.2023.

Anwaar Hussain, J. This Regular First Appeal, under Section 96 of the Code of Civil Procedure, 1908 (“CPC”), is directed against order and decree dated 20.05.2022 passed by the learned Civil Judge 1st Class, Rawalpindi, whereby the Trial Court rejected the plaint of the suit instituted by the appellants, under Order VII, Rule 11(d), CPC, on the ground that it was barred on account of principle of res judicata.

2.The appellants are the legal heirs of Muhammad Sadiq son of Ghulam Sabir, who died on 25.10.2010. Appellants Nos. 1 to 3 are

RFA No.215/2022

Muhammad Sadiq’s sons, whereas appellant No.4 is his widow. Their claim concerns the estate allegedly left by Ghulam Sabir, who had established a family business under the name and style of M/s Amarpak Dry Cleaners (“Firm”), which is impleaded as respondent No.7, and was registered on 09.08.1974. According to the appellants, a judgment and decree dated 11.02.2011 declared the legal heirs of Ghulam Sabir, but his estate has never been distributed. They allege that respondents No. 1 and 2, having assumed management of the Firm on 05.01.2006, transferred properties acquired by Ghulam Sabir from his own income into their names, the names of other family members and that of the Firm. On this premise, the appellants instituted a suit seeking declaration, possession, partition of assets/properties, cancellation of transfers, recovery, distribution and consequential injunctive relief.

3.Respondents No.1, 2 and 7 i.e., defendants No.1, 2 and 7 (“contesting respondents”) before the Trial Court, resisted the claim on the ground that Ghulam Sabir had retired from the Firm on 30.06.2005 and gifted his rights therein to defendants No. 1 to 3. Reliance was placed upon the reconstituted partnership deed dated 16.01.2006, registered on 17.01.2006, recording Muhammad Arif/respondent No.3, Salman Abid/respondent No.4, Muhammad Hamid/respondent No.1 and Muhammad Asif/respondent No.2 as the partners. Their principal objection was that earlier judicial proceedings had repeatedly determined that Ghulam Sabir retained no right, title or interest in the Firm or its assets and that the appellants, claiming through Muhammad Sadiq, could not reopen the controversy.

4.The contesting respondents relied upon following four earlier proceedings:

i. First Suit was instituted by Ghulam Sabir and others against Muhammad Sadiq and others on

RFA No.215/2022

08.03.2006. During its proceedings, Ghulam Sabir appeared as PW-1 on 31.07.2007 and acknowledged his retirement from the Firm. ii. Second Suit was instituted on 11.04.2009, Ghulam Sabir against Muhammad Hamid and others for specific performance, rendition of accounts, declaration and injunction, claiming exclusive ownership of the Firm. His application for temporary injunction was dismissed on 16.06.2010, principally on the premise that he had retired on 30.06.2005 and was no longer a partner under the registered partnership deed. The appeal against that order was dismissed on 28.09.2010.

iii. Third suit was instituted on 23.09.2010, by Ghulam Sabir against Muhammad Hamid and others seeking declaration and cancellation of the partnership deed dated 16.01.2006. Following his death, Muhammad Sadiq and others applied for impleadment under Order I Rule 10 CPC. The application was dismissed on 12.04.2011, on the reasoning that the applicants could not claim representation of an estate which, according to that order, did not belong to the deceased at the time of his death. Their appeal was dismissed for non- prosecution on 28.01.2013.

iv. Fourth suit was instituted on 12.11.2010, by Muhammad Sadiq, against Muhammad Asif and other at Lahore seeking permanent injunction concerning the Firm's factory and showroom situated on Main Ravi Road, Lahore. He asserted that he was managing the business along with his son, appellant No. 1. The plaint was rejected under Order VII Rule 11 CPC on 15.06.2011, principally on the ground that Muhammad Sadiq was neither a partner nor an owner of the Firm. The appeal against that rejection was dismissed for non- prosecution on 09.05.2015.

5.The Trial Court, having fixed the suit of the appellants, for arguments on maintainability, rejected the plaint through the impugned order and decree on the ground that the appellants were litigating upon substantially the same facts and grounds as their father (Muhammad Sadiq) and grandfather (Ghulam Sabir) had done, and that earlier judicial orders had already determined that Ghulam Sabir

RFA No.215/2022

was neither a partner nor an owner of the Firm or its assets. Treating the finality of those orders as sufficient to attract doctrine of res judicata, the Trial Court also observed that the appellants had produced no document establishing that Ghulam Sabir left any property apart from the assets reflected in the Firm's income-tax return.

6.Learned counsel for the appellants submitted that the Trial Court misapplied Section 11 CPC by treating interlocutory orders, refusal of impleadment and rejection of an earlier plaint as conclusive adjudications of proprietary rights. Contended that the causes of action, reliefs and capacities in which the parties litigated were not identical, and that the earlier proceedings did not finally determine the appellants' claim to inheritance. Added that the Order VII Rule 11(d), CPC, as it exists today though permitting examination of the available record, does not authorise the Court to resolve disputed questions of ownership, relinquishment and succession without following the procedure prescribed by law. Further contended that res judicata and limitation is a mixed question of law and fact and cannot be decided summarily. In support of their contentions placed reliance upon cases reported as Muhammad Saleem Ullah and others v. Additional District Judge, Gujranwala and others (PLD 2005 Supreme Court 511), Haji Abdul Karim and others v. Messrs Florida Builders (Pvt) Limited (PLD 2012 Supreme Court 247) and Habib-ur-Rehman and others v. Abdul Karim (deceased) through L.Rs and others (2025

SCMR 1262).

7.Conversely, learned counsel for the contesting respondents submitted that the litigation has continued for nearly two decades and that the present suit is another attempt to reopen matters already settled. Contended that Ghulam Sabir admitted his retirement, that the registered partnership deed records the subsequent constitution of the Firm, and that successive judicial proceedings have negatived the

RFA No.215/2022

claims of Ghulam Sabir and Muhammad Sadiq. Added that the appellants, claiming through their predecessor-in-interest, cannot assert a better title. Further contended that the Punjab amendment to Order VII Rule 11(d), CPC permits consideration of the entire available record and that the Trial Court rightly rejected a suit barred by res judicata and limitation. Placed reliance on cases reported as Syed Manzoor Hussain and 4 others v. Syed Agha Hussain and another (PLD 1989 Lahore 305), Abdul Majeed and others v. Amir Muhammad and others (2005 SCMR 577), Chuttal Khan Chachar v. Mst. Shahida Rani and another v. Mst. Shahida Rani and another (2009 CLC 324) Ahmad Riaz Sheikh and others v. The State and others (PLD 2009 Supreme Court 202), Muhammad Rustam and another v. Mst. Makhan Jan and others (2013 SCMR 299), Irfan Bashir v. Singer Pakistan Ltd. and 3 others (2013 MLD 569), Ghulam Abbas and others v. Muhammad Shafi through LRs and others (2016

SCMR 1403).

8.Arguments heard. Record perused.

9.The principal question of law before us is to determine the scope of Order VII Rule 11(d) CPC following its amendment in Punjab. The question, though simply stated, assumes significance in the context of the competing submissions and the peculiar history of the present litigation. On the one hand lies the necessity of limine control, intended to prevent repetitive, vexatious and legally untenable litigation from unnecessarily occupying judicial time; on the other hand stands the obligation to ensure that a claim is not prematurely extinguished without the adjudication contemplated by law. The controversy thus calls for an interpretation of the amended provision which gives effect to its legislative purpose while preserving its place within the broader procedural scheme of the CPC. It is in this perspective that the question requires detailed examination.

RFA No.215/2022

10.Before its amendment in Punjab, Order VII Rule 11(d), CPC provided as under:

“where the suit appears from the statement in the plaint to be barred by any law;”

The provision, as substituted in Punjab through Lahore High Court Notification No. 237/Legis/XI-Y-26 dated 15.08.2018 and brought into force on 01.11.2020 through Notification No. 250/Legis/XI-Y-26 dated 23.10.2020, reads as under:

“where the suit appears, from the record available with the court, to be barred by any law.”

11.The amendment changes the source from which the Court may ascertain the existence of a statutory bar. The expression “statement in the plaint” has been replaced by “record available with the court”. The words “appears” and “barred by any law”, however, have been retained. The legislative choice is significant. The Court is no longer confined to examining the plaint; it may examine the wider judicial record. Yet the amendment does not expressly substitute adjudication of the disputed rights for the threshold scrutiny contemplated by Order VII Rule 11, CPC.

12.The significance of the retained expression “appears” was examined by the Supreme Court in case of Haji Abdul Karim and others supra, which, while considering the rationale underlying Order VII Rule 11, CPC, observed:

“9. We have already noticed that the court is bound by the use of the mandatory word "shall" to reject a plaint if it "appears" from the statements in the plaint to be barred by any law. What is the significance of the word "appears"? It may be noted that the legislative draftsman has gone out of his way not to use the more common phraseology........An important inference can therefore be drawn from the fact that the word used is "appears". This word, of course, imports a certain degree of uncertainty and judicial discretion in contradistinction to the more precise words "proved" or "established". In other words the legislative intent

RFA No.215/2022

seems to have been that if prima facie the court considered that it "appears" from the statements in the plaint that the suit was barred then it should be terminated forthwith. The great advantage of this would be twofold:

(a)On the one hand the defendant would be saved from the harassment of being subjected to a prolonged and costly trial including the leading of evidence which could be extended over a considerable period of time. Secondly, a great deal of valuable court time would also be saved from being wasted. This second consideration is of special importance considering the extent to which the courts are at present clogged with an enormous amount of arrears. Thus the idea, in brief, would be to bury the suit at its inception. This therefore, appears to be the rationale for the use of word "appears" as against the more strong words "established" or "proved". A further reason why the latter words have not been used is, of course, that normally they would be used if evidence had been recorded. That would then be a definitive finding by the court based on evidence and after examination of the law in the light thereof.

(b)At the same time we have to consider the matter from the other point of view as well. It is important that injustice should not be caused to a plaintiff merely because, for example, of defective drafting in the plaint. No irretrievable loss should be caused to a plaintiff in the event of a plaint being rejected merely on the basis that it "appears" to be barred. It is for this reason that the legal status of rejection of a plaint has not been equated to that of a judgment and decree given after the recording of evidence. In the latter case section 11 and the principle of res judicata become applicable whereas in the present case that principle has been expressly excluded by the provisions of Order VII, Rule 13. It needs to be emphasized that the language of Rule 13 is explicit in clarifying that a fresh plaint can be filed in respect of the very same cause of action in relation to which the plaint was earlier rejected. This interpretation reconciles the language of

RFA No.215/2022

Rule 11 and Rule 13 with that of section 11 of the C.P.C. by providing a valid rationale for the differentiation.”

The distinction drawn by the Supreme Court is instructive. The word “appears” contemplates a prima facie judicial assessment rather than a definitive finding ordinarily reached after recording evidence. It serves the legitimate objective of terminating legally untenable litigation at its inception, without permitting a disputed claim to be extinguished merely upon the defendant's assertion of a statutory bar. The Court may examine admitted documents, manifest contradictions and circumstances beyond reasonable dispute, but cannot resolve competing factual versions under the guise of threshold scrutiny. Equally significant is the relationship between Rules 11 and 13 of Order VII, CPC. Although rejection of a plaint constitutes a decree under Section 2(2), CPC, Rule 13 preserves the right to present a fresh plaint on the same cause of action, subject always to any independently applicable bar of limitation or res judicata. The Punjab amendment though enlarges the material available for examination; but it does not displace these underlying principles.

13.The doctrine of res judicata embodies the public interest in finality of litigation and protects a party against repeated proceedings concerning a matter already conclusively adjudicated. Its application, however, is governed by definite legal requirements. In case of Habib- ur-Rehman and others supra, the Supreme Court, while explaining the constituent elements of Section 11, CPC, held as under: “8. If we examine the doctrine of res judicata as accentuated under Section 11, C.P.C., it reveals certain constituents which establish that no court shall try any suit or issue in which the matter directly and substantially in issue has already 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 try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such

RFA No.215/2022

court. According to the six explanations attached to this very Section, 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; for the purposes of this Section, the competence of a court shall be determined irrespective of any provisions as a right of appeal from the decision of such court; 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; 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; 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 and where persons litigate bona fide in respect of a public right or of a private right claimed 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 person so litigating. In our considerate view, what the aforesaid Section unambiguously advocates is that, before non-suiting under this doctrine, it is obligatory for the courts to carry out a diagnostic exercise to determine whether the circumstances pleaded actually attract the principle of res judicata or not, rather than summarily dismissing the lawsuits on mere contentions without judicious reasoning.”

(Emphasis supplied)

14.The doctrine is not confined to repetition of an identical cause of action. It may preclude a claim already adjudicated, an issue directly and substantially determined in earlier proceedings, or a matter which, by virtue of Explanation IV to Section 11, CPC, might and ought to have been raised previously. These applications, commonly described as claim preclusion, issue preclusion and constructive res judicata, are distinct in their requirements. The first concerns the cause of action adjudicated; the second, an issue necessarily and finally determined; and the third, a matter which ought to have formed part of the earlier controversy. Their common foundation is the binding legal effect of the previous adjudication, not

RFA No.215/2022

merely the existence of litigation involving the same parties or the subject matter.

15.The distinction assumes particular importance when res judicata is invoked under Order VII Rule 11, CPC. It is not an objection which must invariably await evidence. In case of Muhammad Saleem Ullah and others supra, the Supreme Court recognised that a plaint may be rejected on this ground without framing issues or recording evidence, provided the legal bar is established from material properly available to the Court. While explaining the nature and extent of the earlier adjudication necessary to attract the doctrine, the Supreme Court held as under: “7. The rule of res judicata is based on the consideration that same cause should not be tried for the second time between the same parties and there must be an end to the litigation between the parties. The principle is that since the cause of action in a suit merges in the judgment, therefore, no second suit can be filed on the basis of same cause of action unless it is shown that it was recurring in nature, thus, the essential condition required to be fulfilled to establish the plea of res judicata would be that the matter in issue and the material point in dispute between the parties in the earlier litigation was directly and substantially in issue, in the subsequent litigation. This is settled law that if matter in issue in the subsequent litigation was not substantially decided in the earlier litigation, it would not be res judicata actually or constructively because for res judicata, it is essential to show that earlier decision in the matter was based on proper adjudication on the relevant issue either of law or fact or mixed issue of law and fact. .......... In nutshell, there can be no cavil to the proposition of law that the adjudication on question of law or fact or mixed question of law and fact on the basis of established set of facts and the determination of such questions in the judgment, would essentially be res judicata if the facts were found to have satisfied the requirement of law but the finding or mere observation on a question of fact without proper adjudication and any evidence would not operate as res judicata. In the light of this rule even in the matter of application of general principle of res

RFA No.215/2022

judicata at least the condition of final decision on merits of the dispute between the parties must exist.”

(Emphasis supplied)

16.In case of S.M. Sham Ahmed Zaidi through Legal Heirs v. Malik Hassan Ali Khan (Moin) through Legal Heirs (2002 SCMR 338), the Supreme Court recognised that material beyond the plaint may, by its own legal force, justify rejection where it is sufficient to defeat the claim. Thus, a previous judgment may establish the existence and contents of an earlier adjudication, but whether it operates as res judicata depends upon the matter actually determined and the requirements of Section 11, CPC depends upon the facts of both cases. Likewise, the production of a registered instrument may establish its execution or registration in accordance with law, without necessarily determining every disputed proprietary consequence asserted on its basis. A bare denial cannot defeat the legal effect of an earlier binding judgment; equally, the production of a document does not dispense with adjudication of a material fact which remains genuinely disputed.

17.Where the plea rests upon earlier judicial proceedings, the Court must ascertain what was pleaded, what issues arose, what was actually decided and whether the determination attained the requisite finality. Ordinarily, the earlier pleadings, issues and judgment furnish the foundation for that inquiry, although a judgment sufficiently setting out those matters may itself provide the necessary material. The exercise becomes particularly important where several proceedings are relied upon, involving different parties, reliefs or stages of adjudication. Their collective existence cannot substitute for an examination of the legal effect of each.

18.A useful comparative exposition from the neighbouring jurisdiction is found in case reported as Celir LLP v. Sumati Prasad Bafna and others (2024 INSC 978), wherein the Supreme Court of

RFA No.215/2022

India identified four situations encompassed by the doctrine: cause-of- action estoppel, issue estoppel, constructive res judicata, and its extension to points which ought to have been raised in relation to an issue in the earlier proceedings. This classification underscores that the doctrine may operate upon a cause of action, a particular issue necessarily decided, or a matter which the law treats as having been directly and substantially in issue by virtue of Explanation IV. The distinction is material because a common factual background does not, without more, establish any of these bars. Each requires identification of the earlier controversy and the precise matter to which finality attaches. The classification is instructive, while the governing requirements in Pakistan remain those prescribed by Section 11, CPC, its explanations and the applicable general principles. The comparative jurisprudence lends further support to this distinction. In case of The Jamia Masjid v. Sri K.V. Rudrappa (since dead) by Lrs. & Ors. (AIR 2021 SC 4523), the Supreme Court of India explained that res judicata is not invariably a mixed question of law and fact and may, in an appropriate case, be determined as a preliminary issue where the earlier pleadings and judgments furnish the requisite material without necessitating adjudication of disputed facts.

19.The ratio emerging from these pronouncements is that res judicata may furnish a ground for rejection of a plaint at the threshold, but only where the earlier adjudication satisfies the constituent requirements of the doctrine. A final decision upon a matter directly and substantially in issue cannot be equated with an incidental observation or a finding recorded for a limited procedural purpose. Nor does the mere finality of an order establish that every proposition mentioned therein was conclusively adjudicated. The distinction is between the finality of the order and the extent of its binding effect.

RFA No.215/2022

20.Having examined the judicial principles governing the application of res judicata, it is equally necessary to consider the procedural framework through which such a plea may be declined. The Courts should not lose sight of the fact that the procedural scheme of the CPC provides the necessary distinction between rejection of a plaint on the basis of an apparent statutory bar and adjudication of a contested issue requiring determination. Order XIV Rule 1(1) provides that “Issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other.” Under sub-Rule (5) thereof, the Court is required to frame issues upon the material propositions on which the parties are at variance, while Rule 2 contemplates determination of issues of law in advance where their decision may dispose of the suit or any part thereof. Order XV operates in a different field. It permits disposal at the first hearing in the circumstances specified therein, including where the parties are not at issue on any question of law or fact. It does not dispense with adjudication of a genuinely disputed foundational fact merely because an objection of res judicata or limitation has been raised.

21.The distinction is thus one of procedural threshold, not of the nature of the statutory objection. Res judicata and limitation may justify rejection under Order VII Rule 11(d), CPC, where the bar appears from the available record. Where their determination depends upon a disputed material proposition, the Court must proceed under Order XIV and determine the relevant issue, receiving evidence where necessary. In case of Defence Housing Authority Lahore through Secretary v. Farzand Ali and 9 others (2026 YLR 1357), a learned Division Bench of this Court recognised the course of determining limitation as a preliminary issue. Although the judgment reproduced the pre-amendment wording of Rule 11(d), its treatment of the procedural course under Order XIV remains relevant.

RFA No.215/2022

22.The foregoing discussion yields certain governing principles. First, the amendment of Order VII, Rule 11(d), CPC enlarges the material examinable under Order VII Rule 11(d), CPC, without altering the significance of the retained expression “appears”. Secondly, the available record may include pleadings, documents, admissions and earlier judicial proceedings, but the presence of such material does not establish every legal consequence asserted on its basis. Thirdly, res judicata may justify rejection without framing issues where its constituent requirements are ascertainable from that record; the earlier adjudication must nevertheless be examined according to its nature, scope and finality, with due regard to claim preclusion, issue preclusion and constructive res judicata. Fourthly, rejection of an earlier plaint does not, of its own force, prohibit presentation of a fresh plaint under Order VII Rule 13, CPC, though an independent statutory bar may remain operative. Finally, where determination of the bar depends upon genuinely disputed foundational facts, the Court must resort to the procedure contemplated by Orders XIV, CPC, as applicable. The need to prevent repetitive litigation cannot dispense with these requirements. These principles preserve the distinction between the material which may be examined and its legal sufficiency to warrant rejection. The amendment facilitates early termination of suits which are legally barred; it does not transform threshold scrutiny into a summary trial of disputed proprietary rights.

23.Applying these principles to the present case, the contesting respondents were entitled to rely upon the earlier judicial proceedings and the registered partnership, and the Trial Court was competent to examine that material. The error lay in treating those proceedings collectively as a conclusive determination of the appellants' claim, without identifying the precise matter adjudicated in each of the earlier suit and its binding effect upon the suit of the

RFA No.215/2022

appellants and it is for this reason that the cases relied upon by learned counsel for the contesting respondents, are of no help to them, on account of distinguishable facts.

24.No doubt the appellants are claiming through Muhammad Sadiq, cannot escape a binding adjudication against their predecessor merely by invoking inheritance. Equally, succession does not enlarge the legal effect of an earlier order beyond the matter which it actually and conclusively determined. However, what is required is to enlarge the scope of earlier litigation. The first proceeding was instituted by Ghulam Sabir and others against Muhammad Sadiq on 08.03.2006. Statement of Ghulam Sabir dated 31.07.2007, acknowledging retirement from the Firm, is undoubtedly material. An admission made in judicial proceedings may carry substantial evidentiary weight, including against persons claiming through its maker. There is, however, another aspect which cannot be overlooked. Ghulam Sabir, while litigating against his own children, made that statement, yet subsequently instituted proceedings in 2009 asserting exclusive ownership of the Firm and, in September 2010, challenged the registered partnership deed dated 16.01.2006. The subsequent litigation does not, by itself, negate the earlier admission; nevertheless, it forms part of the judicial record and demonstrates that Ghulam Sabir continued to contest the proprietary consequences attributed to his retirement. Whether his statement constituted an unequivocal relinquishment of all rights, or merely acknowledged cessation of his status as a partner, required examination in the context of the earlier pleadings, the statement itself and the subsequent proceedings. The genuineness of the statement, if specifically disputed on legally sustainable grounds, and its evidentiary and legal effect are distinct matters. The Trial Court could not treat the statement as conclusively determining every proprietary question without considering the subsequent judicial record. Moreover, the material

RFA No.215/2022

identified in the impugned order does not sufficiently disclose the final adjudication, if any, of the substantive issues raised in the first suit.

25.The second suit, instituted on 11.04.2009, involved Ghulam Sabir's claim of exclusive ownership of the Firm. The orders dated 16.06.2010 and 28.09.2010 arose from refusal of temporary injunction and dismissal of the appeal against that refusal. Findings recorded for purposes of interim relief are ordinarily directed towards the requirements governing such relief. Their finality as interlocutory orders do not, without more, amount to a final determination of title. The Trial Court was therefore required to distinguish the effect of those orders from any adjudication of the merits of the said suit.

26.The third proceeding concerned Ghulam Sabir's challenge to the partnership deed dated 16.01.2006. Following his death, Muhammad Sadiq and others sought impleadment under Order I Rule 10, CPC, but their application was dismissed on 12.04.2011, and the appeal was dismissed due to non-prosecution on 28.01.2013. Those orders attained finality concerning the procedural relief sought. Whether the observations made while declining impleadment also conclusively determined the proprietary rights now asserted is a distinct question. Their binding effect cannot extend automatically to every disputed asset merely because the Court, while deciding impleadment, expressed a view concerning the deceased's estate.

27.The fourth suit was instituted by Muhammad Sadiq concerning the Firm's factory and showroom on Main Ravi Road, Lahore, only. His plaint was rejected under Order VII Rule 11, CPC, on 15.06.2011, and the appeal was dismissed for non-prosecution on 09.05.2015. The rejection attained finality, but Order VII Rule 13 expressly provides that rejection of a plaint does not, of its own force, preclude presentation of a fresh plaint upon the same cause of action.

RFA No.215/2022

This does not exclude an independent bar of res judicata or limitation. It does, however, require identification of the particular matter, if any, conclusively determined in the earlier proceedings. The said suit concerned injunctive relief relating to specified business premises, whereas the suit of the appellants seeks relief concerning the entire estate purportedly left by Ghulam Sabir. The difference in relief is not conclusive either way; what matters is whether the same issue was directly and substantially determined, or was one which might and ought to have been raised previously.

28.The contesting respondents’ reliance upon the registered partnership deed and Ghulam Sabir's retirement also raises questions concerning the legal character of the disputed assets. The deed may establish the constitution of the Firm and the identity of its partners at the relevant time. Whether Ghulam Sabir retained any separate proprietary or financial entitlement, whether his accounts stood settled, or whether particular properties formed part of his personal estate are distinct questions. Conversely, the appellants cannot establish ownership merely by asserting that Ghulam Sabir founded the business or acquired properties from its income. The competing claims must be determined according to the relevant documents and legally admissible evidence, rather than through assumptions drawn from either side's pleadings.

29.The Trial Court observed that the appellants had not produced documents establishing that Ghulam Sabir left property apart from the assets reflected in the Firm's income-tax return. This observation concerns the evidentiary strength of their claim, not necessarily the existence of a statutory bar. Insufficiency of proof of title cannot, by itself, be equated with a suit appearing to be barred by law under Order VII Rule 11(d), CPC. The question whether the disputed properties formed part of the deceased's estate remains subject to determination by the Trial Court, in accordance with law.

RFA No.215/2022

30.Learned counsel for the contesting respondents also raised the plea of limitation, which likewise requires independent consideration. The prolonged history of litigation cannot revive a claim otherwise barred by time, nor can the appellants avoid limitation merely by characterising their claim as one of inheritance. The applicable period and its commencement, however, depend upon the nature of the relief and the accrual of the corresponding right. Whether those matters are conclusively ascertainable from the available record, or require determination of disputed facts, must be examined under the Limitation Act, 1908. The age of the dispute is relevant, but cannot replace that statutory inquiry. The Supreme Court in a reported judgment passed in case bearing Civil Petition No.675 of 2025 titled Muhammad Islam Badshah and another v. Abdul Wahab Shah and others, available at Supreme Court’s website, while invoking Order VII Rule 11, CPC on the basis of limitation, held as under:

“8.....If even one prayer in the plaint is found to be maintainable, the plaint cannot be rejected in parts. However, in case of mixed questions of law and fact, the correct approach is to allow the suit to proceed to the written statement and discovery phases, determining the lis either by framing preliminary issues or through a regular trial with equal opportunities for both parties. The proper course is to frame issues and decide them on merits in light of the evidence. The court is duty-bound to ensure substantial justice between the parties and not render them remediless.”

31.In view of the above discussion, we are unanimous in our view that the amendment to Order VII Rule 11(d), CPC, enlarges the material available for threshold scrutiny without converting that scrutiny into an adjudication of disputed foundational facts. A plaint may be rejected on the ground of res judicata where the requirements of Section 11, CPC, or its applicable general principles, appear from the record lawfully available to the Court, however, where the plea depends upon the identity, scope and binding effect of determinations made in different proceedings, or upon disputed material propositions

RFA No.215/2022

requiring adjudication, the proper course is to frame a preliminary issue and determine the same, in accordance with law. In the present case, the Trial Court did not undertake the requisite examination of the distinct nature and legal effect of the earlier proceedings, before treating them as collectively establishing a bar to the suit of the appellants.

32.Consequently, this appeal is allowed. The impugned order and decree dated 20.05.2022 are set aside and the suit of the appellants is restored to its original number. The Trial Court shall frame preliminary issue(s) concerning the pleas of res judicata and limitation and determine them in accordance with law, upon examination of the pleadings, earlier judicial proceedings and other legally admissible material, affording the parties an opportunity to lead evidence. The suit shall proceed further only to the extent warranted by the determination of the preliminary issue(s). It is clarified that nothing observed herein shall prejudice the rights or contentions of either party on the merits. No order as to costs.

33.One of us (Mirza Viqas Rauf, J) while concurring with the reasoning and conclusion recorded hereinabove, has authored a separate note, which shall be read as part of this judgment.

Dictated on 08.10.2026.

Signed on 29.10.2026.

(MIRZA VIQAS RAUF) (ANWAAR HUSSAIN)

Judge Judge Approved for reporting.

(MIRZA VIQAS RAUF) (ANWAAR HUSSAIN)

Judge Judge Announced in open Court on 29.10.2026

(MIRZA VIQAS RAUF) (ANWAAR HUSSAIN)

Judge Judge

Maqsood*

RFA No.215/2022

MIRZA VIQAS RAUF, J. I have had the opportunity to go through the draft of the judgment authored by my learned brother Anwaar Hussain, J. While fully concurring with the reasons and conclusion drawn therefrom by my learned brother, I would like to add my own note to the following effect.

2.Order 7 Rule 11 of CPC deals with the rejection of plaint in the eventualities mentioned therein. For ready reference, the same is reproduced: -

11.Rejection of plaint.-- The plaint shall be rejected in the following cases:-

(a)where it does not disclose a cause of action;

(b)where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;

(c)where the relief claimed is properly valued, but the plaint is returned upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;

(d)where the suit appears from the statement in the plaint to be barred by any law.”

The prime object of Rule 11, ibid, is to bury the stale and vexatious claims at inception so as to secure the ends of justice, being defeated in the protracted and frivolous litigation. Above noted provision was analyzed by the Supreme Court of Pakistan in the case of Haji ABDUL KARIM and others versus Messrs FLORIDA BUILDERS (PVT) LIMITED (PLD 2012 Supreme court 247) and it was held as under: -

8.At this stage it would be appropriate to carry out an analysis of Order VII, Rule 11 of the Code of Civil Procedure 1908. The said provision is reproduced below:

"(11) Rejection of plaint.---The plaint shall be rejected in the following cases:

(a)Where it does not disclose a cause of action.

(b)Where the relief claimed is under-valued, and the plaintiff,

RFA No.215/2022

on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;

(c)Where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;

(d)Where the suit appears from the statement in the plaint to be barred by any law.

This is an important provision of law which has often been construed in a wide ranging series of cases. The interpretation applied thereto falls within a wide spectrum and some of the important case-law will be examined by us at a later stage. Prior to doing so, however, it is important to carry out an analysis of the precise language used in the statute. The salient features contained in the provision are the following;

(i)The words used are "rejection of plaint". In other words the legislature has deliberately refrained from providing that the suit should be "dismissed". A distinction has thus been drawn between a dismissal of a suit and the rejection of a plaint and it is this distinction which needs to be elucidated.

(ii)The opening words indicate that it is mandatory on the court to reject the plaint if one or more of the four clauses is found to be applicable. This is made clear by the use of the word "shall" in the opening phase.

(iii)The first clause need not detain us for long since it contains a clear statement that in case the plaint does not disclose a cause of action it is to be rejected. The next two clauses, namely, clauses (b) and (c) relate to the valuation of the plaint and the stamp duty to be affixed thereon and again do not require much discussion. It is the last clause, namely (d) in relation to which most of the litigation has taken place. It is this, therefore, which requires a careful analysis.

(iv)Clause (d) has three constituent elements. The first part uses the important word "appears", the second part relates to statements made in the plaint, (i.e. there is no reference to the written statement) and the third part states the inference to be drawn if a suit "appears" from the statement in the "plaint" to be "barred" by any law. This read in conjunction with the opening words of Rule 11 make it mandatory on the court to reject the plaint.

Right at the inception it needs to be stated clearly that Order VII, Rule 11, C.P.C. cannot be properly construed in isolation. In order to understand the theory of law underlying it

RFA No.215/2022

reference has to be made to its complementary provision, namely, Order VII, Rule 13, C.P.C. which is reproduced below:-- "13. Where rejection of plaint does not preclude presentation of fresh plaint.---The rejection of the plaint on any of the grounds hereinabove mentioned shall not of its own force preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action."

Rule 13 states the consequence of the rejection of the plaint. It is, in brief, to keep the right of the plaintiff alive to present a fresh plaint even if based on "the same cause of action" notwithstanding the rejection of the plaint. This is a distinctly unusual provision. It will be seen immediately that this marks a clear distinction from the provisions of section 11, C.P.C. which not merely imposes a legal bar on an unsuccessful plaintiff but actually takes away the jurisdiction of the court to try any suit or issue in which the matter directly or substantially in issue has also been in issue in a former suit between the same parties litigating under the same title in a court of competent jurisdiction which has been "heard and finally decided". This is of course the well known principle of res judicata which is one of the foundational principles of our procedural law. It follows that in Order VII, Rule 11 read with Rule 13 the concept of rejection of a plaint is clearly distinct from that of a suit which is decided and disposed of in the normal course by a court of competent jurisdiction after recording evidence. The question which therefore arises is, what is the reason for this distinction and why has it been created? What has to be determined is, firstly the exact scope and ambit of Order VII Rule 11, and secondly, the effect of an order passed rejecting the plaint in accordance therewith.

9.We have already noticed that the court is bound by the use of the mandatory word "shall" to reject a plaint if it "appears" from the statements in the plaint to be barred by any law. What is the significance of the word "appears"? It may be noted that the legislative draftsman has gone out of his way not to use the more common phraseology. For example, in the normal course, one would have expected that the language used would have been "where it is established from the statements in the plaint that the suit is barred by any law" or, alternatively, "where it is proved from the statement in the plaint that the suit is barred by any law". Neither of these alternatives was selected by the legislative draftsman and it must be assumed that this was a deliberate and conscious decision. An important inference can therefore be drawn from the fact that the word used is "appears". This word, of course, imports a certain degree of uncertainty and judicial discretion in contradistinction to the more precise words "proved" or "established". In other words the legislative intent seems to have been that if prima facie the court considered that it "appears" from the statements in the plaint that the suit was

RFA No.215/2022

barred then it should be terminated forthwith. The great advantage of this would be twofold:--

(a)On the one hand the defendant would be saved from the harassment of being subjected to a prolonged and costly trial including the leading of evidence which could be extended over a considerable period of time. Secondly, a great deal of valuable court time would also be saved from being wasted. This second consideration is of special importance considering the extent to which the courts are at present clogged with an enormous amount of arrears. Thus the idea, in brief, would be to bury the suit at its inception. This therefore, appears to be the rationale for the use of word "appears" as against the more strong words "established" or "proved". A further reason why the latter words have not been used is, of course, that normally they would be used if evidence had been recorded. That would then be a definitive finding by the court based on evidence and after examination of the law in the light thereof.

(b)At the same time we have to consider the matter from the other point of view as well. It is important that injustice should not be caused to a plaintiff merely because, for example, of defective drafting in the plaint. No irretrievable loss should be caused to a plaintiff in the event of a plaint being rejected merely on the basis that it "appears" to be barred. It is for this reason that the legal status of rejection of a plaint has not been equated to that of a judgment and decree given after the recording of evidence. In the latter case section 11 and the principle of res judicata become applicable whereas in the present case that principle has been expressly excluded by the provisions of Order VII, Rule 13. It needs to be emphasized that the language of Rule 13 is explicit in clarifying that a fresh plaint can be filed in respect of the very same cause of action in relation to which the plaint was earlier rejected. This interpretation reconciles the language of Rule 11 and Rule 13 with that of section 11 of the C.P.C. by providing a valid rationale for the differentiation. A further pointer in the same direction is to be found if the definition of decree contained in section 2, C.P.C. is taken into account. In common practice the words judgment and decree are often used more or less synonymously. However, these two concepts are completely distinct in terms of clauses (2) and (9) of section 2, C.P.C. Clause 9 defines a "judgment" as meaning merely the grounds given by a judge for arriving at the conclusion embodied in a decree. This is clear from the language which is reproduced below:--

RFA No.215/2022

"Sec. 2(9)"Judgment" means the statement given by the Judge on the grounds of a decree or order."

3.Since before us, the proposition relates to the scope and extent of Clause (d) of Rule 11 of CPC so it would be apt to restrict myself to the core issue instead of pondering upon the desultory facts. Initially Clause (d) reads as under: -

(d)where the suit appears from the statement in the plaint to be barred by any law.

(Underlining supplied for emphasis)

But it has been substituted through High Court Amendment Lahore (22.08.2018) and now reads as under: -

(d)where the suit appears, from the record available with the Court, to be barred by any law.

(Underlining supplied for emphasis)

From the comparative analysis of above provision, it clearly manifests that while introducing the amendment, the only change which has been brought is the exclusion of the term “statement in the plaint” and it is substitution with the term “record available with the Court”. The legislature kept intact word “appears” for the apparent reason that it will play the guiding role for attracting Clause (d) to the cases for rejection of plaint. Thus, the yardstick for invoking Sub-Clause (d) of Rule 11 of CPC in the form of word “appears” remained part of the provision and only the change qua material to be considered for the purpose has been changed and scope of such material has been enlarged from “statement in the plaint” to “record available with the Court”.

4.The word “appears” is clearly meant for a bird’s eye view examination of the material available on record so as to adjudge competency of the plaint. It does not contemplate a detailed inquiry or probe into the matter. Though the amendment in Clause (d) was introduced in the year 2018 but much prior to this, in the case of S.M.

RFA No.215/2022

SHAFI AHMAD ZAIDI through Legal Heirs versus Malik HASSAN ALI KHAN (MOIN) through Legal Heirs (2002 SCMR 338), the Supreme Court of Pakistan held as under: -

14.Besides, averments made in the plaint other material available on record which on its own strength is legally sufficient to completely refute the claim of the plaintiff, can also be looked into for the purpose of rejection of the plaint. It does not necessarily mean that the other material shall be taken as conclusive proof of the facts stated therein, but it actually moderates that other material on its own intrinsic value be considered alongwith the averments made in the plaint.

Same principles were reiterated in the case of AHMED ALI TALPUR versus SUB-REGISTRAR LATIFABAD, HYDERABAD and others (PLD 2025 Supreme Court 302).

5.Needless to mention that though object of Order VII, Rule 11 of CPC is to curb the frivolous litigation at its inception but at the same time, one cannot lose sight of the fact that rejection of plaint on technical grounds or in haphazard manner would deprive a person from his legitimate right of availing the legal remedy for undoing the wrong done in respect of his such right. This was the reason that Rule 2 was incorporated in Order XIV of CPC authorizing the Court to dispose of the issues of law where in its opinion issues, both of law and of fact arise in the suit and the case or any part thereof may be disposed of on the issues of law while postponing the settlement of the issues of fact till the issues of law have been determined.

6.The impugned order and decree dated 20th May, 2022 is thus clearly offensive to the above noted principles of law and not tenable.

(MIRZA VIQAS RAUF)

JUDGE

Sajjad