Province of Sindh and another (Applicant) VS Gul Muhammad & Ors,thr:their attorney M.Bilal Memo (Respondent)

Cr

CIVIL REVISION NO.17 OF 2005

CIVIL REVISION NO.31 OF

Date of hearing: 21.04.2009

Applicant: Pakistan through Secretary Defence Islamabad & another through Mr. Abdul Sattar Chohan Federal Counsel in C.R.No.17/2005

Applicant: Province of Sindh & others

through Mr.Ali Haider Dareshani State Counsel in C.R.31/2005

Respondents: Muhammad Paryal & others in C.R.No.17/05 and Gul Muhammad & others in C.R.No.31/2005 through Mr.Muhammad Nawaz Soomro

J

U D G M E N T

ARSHAD NOOR KHAN, J:- By this common judgment I intend to dispose off civil revision No.17/2005 Pakistan through Secretary Defence Islamabad v/s Muhammad Paryal and others and civil revision No.31/05 Province of Sindh and others v/s Gul Muhammad and others, as both the revision applications have arisen out against the common judgment dated 08.10.2005 passed by the learned 3rd Additional District Judge Khairpur and the parties are also common.

The facts leading rise to the present revision applications in brief are that the respondents earlier filed suit No.39/92 claiming therein the ownership of portions of S.No.759, 760, 761, 762, 763, 764, 765, 766, 767,768 and 133 indicated in the plaint, situated in Deh Tehri Taluka and District Khairpur and further stating therein that the applicants are constructing head quarter of Shahbaz Ranger on their land, as such the suit for declaration and injunction was filed on 19th May, 1992 praying therein to declare that the act of the applicants in construction and establishment of the head quarter of the defendant No.4 viz. Commandant head quarter, Shahbaz Rangers, barrage colony, military road, sukkur on the disputed land is illegal, malafide without jurisdiction and bad-in-law and consequential relief of injunction thereby restraining them not to construct the head quarter on the disputed land was also sought. The applicants were served with the notice of Suit No.39/92 which was contested by them and had pleaded that the land has been acquired for the purpose of construction and establishment of Shahbaz Rangers head quarter and such notification u/s 4 as well as u/s 6 of the Land Acquisition Act have been published. The learned trial court framed the issues and matter was posted for recording of evidence of the respondents and their witnesses. The respondents did not lead the evidence for a long time, therefore, the learned trial court dismissed the suit vide order dated 09.12.1999 on the ground that the respondents and their witnesses were absent inspite of so many chances afforded to them to lead their evidence. After dismissal of the suit vide order dated 09.12.99 the present respondents filed similar suit No.82/2001 on 21st December 2001 on the same pleas raised in the earlier suit No.32/92 on the ground that fresh cause of action accrued to them to file the fresh suit. The applicants were served and filed written statement similar to that which already was filed in earlier suit No.32/92 and also filed application u/o 7 Rule 11 CPC on the ground that the suit was not maintainable and was barred by the law and no cause of action accrued to the respondents to file the present suit. The respondents contested the said application by filing of their objection, denying therein the pleas raised by the applicants in their application u/o 7 Rule 11 CPC. The learned trial court after hearing of the learned counsel for the parties was pleased to allow the application and rejected the plaint u/o 7 Rule 11 CPC on the ground that the dismissal of the earlier suit filed by the respondents precluded them to file fresh suit on the same cause of action. Being highly aggrieved and dis-satisfied with the judgment and decree passed by the learned trial court, the respondents preferred civil appeal No.28/02 which was transferred to the learned 3rd Additional District Judge Khairpur who after hearing of the learned counsel for the parties allowed the same vide judgment and decree dated 08.1.2005 and 10.01.2005 respectively observing therein that the suit filed by the respondents was not hit under the principle of resjudicata provided u/s 11 CPC nor the suit was barred u/o 9 Rule 9 CPC hence the Federal Government as well as Provincial Government have preferred present revision application separately challenging the judgment and decree passed by the learned 3rd Addl.District Judge Khairpur.

I have heard Mr.Abdul Sattar Chohan learned federal counsel for the applicant in civil revision No.17/05 and Mr.Ali Haider Dareshani counsel for the Provincial Government in civil revision No.31/05 and Mr.Muhammad Nawaz Soomro advocate for the respondents in both the civil revisions.

Mr.Abdul Sattar Chohan learned Federal counsel vehemently contended that the respondents filed suit No.39/92 which was dismissed by the learned trial court on the failure of respondents to lead their evidence as such the order passed by the learned trial court in suit No.39/92 was an order which could only be set aside by filing of an application u/o 9 Rule 9 CPC and a fresh suit on the same cause of action is barred under the provision of order 9 Rule 9 CPC. He further contended that the land in question has been acquired by the government for the purpose of construction of Shahbaz Rangers head quarter and for the very purpose the notification u/s 4 and section 6 of the Land Acquisition Act have been published in official gazette, therefore, the remedy for the respondents does not lie to file declaratory suit against the action of acquisition of the land in question. He further contended that the fresh suit filed by the respondents was not maintainable on the same cause of action which was filed after about two years from the date of dismissal of earlier suit No.39/92, therefore, the suit filed subsequently by the respondents was hit u/o 9 Rule 9 CPC. In support of his contention he has relied upon the case of Sikandar Ali and another v/s Abdul Raheem @ Leemon reported in 1996 CLC 1273, and the case of Bashir Ahmed v/s Moula Bux reported in 1990 CLC 1241.

Mr.Ali Haider Dareshani learned counsel for the provincial government while adopting the arguments advanced by Mr.Abdul Sattar federal counsel, has further contended that the land in question has already been acquired by the government by way of publication of proper notifications under section 4 and 6 of Land Acquisition Act, and that the possession of the land has already been taken over by the government and the award has also been passed by the land acquisition officer and the remedy of the respondents, if any, lies to file reference u/s 18 of the Land Acquisition Act and not by way of filing the instant suit, as such the suit filed by the respondents was not maintainable in law and the learned appellate court was not justified in reversing the judgment and decree passed by the learned trial court.

Mr. Muhammad Nawaz Soomro advocate for the respondents vehemently refuted the arguments advanced on behalf of the applicants and have contended that the order passed by the learned appellate court does not suffer from any jurisdictional defect envisaged u/s 115 CPC, therefore, the same need not to be interfered in this revisions application. He further contended that the order passed by the learned appellate court is legal and prefect and he rightly observed that the principle of resjudicata does not apply under the circumstances of the present case for the reasons that the disposal of the earlier suit filed by the respondents was not on merit, therefore, provision of section 11 CPC does not attract to the circumstances of the present case nor the suit filed subsequently was hit u/o 9 Rule 9 CPC. He further contended that no illegality or infirmity is apparent on the face of impugned order passed by the learned appellate court which could not be checked in the present revision application, as such the order passed by the learned appellate court need not interference. In support of his contention he has relied upon the case of Mrs.Irene Wahab v/s Lahore Dioeesan Trust Association reported in 2002 SCMR 300 and the case of Dhani Bux v/s Ali Sher & others reported in 2007 YLR 2134.

I have considered the arguments advanced on behalf of the parties and have gone through the entire material available before me as well as case law on the subject.

The respondents have filed earlier suit No.39/92 praying therein declaration of the action taken by the applicants for construction of head quarter of Shahbaz Rangers is illegal and malafide and the defence taken by the applicants was that the said land has been acquired by the government for construction of the head quarter of the rangers and after delivery of the possession, the construction work was started. The suit filed by the respondents was ultimately fixed for recording of evidence after framing the issues and the matter was posted for recording of evidence of the respondents and their witnesses. The admitted fact is that the respondents did not lead their evidence before the trial court in their suit No.39/92 nor they lead the evidence of their witnesses though there were 27 plaintiffs and some or any one amongst them could had easily been examined before the trial court to avoid the dismissal of their suit, therefore, vide order dated 9th December 1999 the learned trial court dismissed the suit filed by the respondents by holding that the respondents and their witnesses called absent. The matter was fixed for evidence of the respondents and their witnesses and the learned counsel for the respondents filed statement stating therein that he remains absent for want of witnesses. The learned trial court further observed that the perusal of record shows that so many opportunities and chances were afforded to the respondents to lead their evidence but they failed to lead their evidence, therefore, the suit filed by the respondents was dismissed for non-prosecution. A perusal of the order passed by the learned trial court dated 09.12.1999 in suit No.39/92 shows that the said order was passed by the learned trial court under rule 8 of order 9 CPC and rule 8 of order 9 CPC speaks about the dismissal of the suit on the ground of non appearance of the plaintiff and his witnesses. The order dated 09.12.1999 was passed by the learned trial court under rule 8 of order 9 CPC and the remedy provided against the order passed under rule 8 of order 9 CPC is provided under rule 9 of order 9 CPC which speaks that where the suit wholly or partly dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of same cause of action but he may apply for an order to set aside the dismissal of the suit and if the court is satisfied that there were sufficient grounds and reasons for non appearance of the plaintiff, the suit may be restored by the court. The rule 9 of order 9 CPC is therefore, very much clear in respect of filing of application for restoration of the suit and it precludes the plaintiff to file the fresh suit on the same cause of action. There is therefore no cavil to the proposition that whenever the suit of the plaintiff is dismissed for want of evidence of the plaintiff and his witnesses, the order for dismissal is passed under rule 8 of order 9 CPC which could only be set aside under rule 9 of order 9 CPC. The respondents have filed fresh suit after about two years from the date of dismissal of their earlier suit. A perusal of the subsequent suit shows that it has been filed on the same cause of action which was the base of earlier suit No.39/92 except certain amendment in para 10 of the plaint stating therein that the government had made believed to the attorney of respondents that they are going to change their idea of construction of head quarter of the Shahbaz Rangers therefore, they could not pursue the earlier suit and when they again started construction of the head quarter the respondents filed subsequent suits but the said bald and vague assertions of the respondents could not be believed because there must be some concrete evidence of such assurance to the attorney of the respondents but neither the said evidence has been enlightened in the plaint nor the name or designation of the officer who assured to the attorney of the respondent about dropping of their idea to change the construction of head quarter was taken by the government, has been disclosed. The subsequent suits filed by the respondents, in my humble opinion was therefore, completely barred u/o 9 Rule 9 CPC. The same proposition came for consideration before this court in the case of Sikandar Ali, supra wherein this court after analyzing of the provisions of order 9 rule 9 CPC was of the view that the fresh suit on the same cause of action was not maintainable. The dictum laid down in the aforesaid case of Sikandar Ali, is usefully quoted herein below for the sake of convenience.

“ In view of the above provision, the proper remedy for the applicants was to make an application under Order 9, Rule 9, C.P.C. to set the dismissal aside showing sufficient cause for their non-appearance on the date when the suit was called for hearing. The applicants failed to resort to the said remedy but filed the fresh suit on the same cause of action which in terms of Order 9, Rule 9, C.P.C. was barred as the same has been based on the same cause of action and between the same parties. It has not been shown that the impugned order was illegal or suffered from any irregularity amounting to illegality. I do not consider it necessary to touch the plea of applicability of Article 14 of Limitation Act as this revisions is being dismissed on account of being barred under Order 9, Rule 9, C.P.C. The findings of the two courts below on the said point is legal and proper and calls for no interference in this revisions In view of the aforesaid reasons and law, the revisions application has no merits which is hereby dismissed. “

Similar observation has also been made by the Lahore High Court in the case of Bashir Ahmed supra .

The arguments of learned counsel for the respondents that the suit was filed on fresh cause of action does not attract me as the facts as well as prayer contained in the present suit are completely in resemblance and akin to the contents and prayer of the earlier suit No.39/92. The further contention of the learned counsel for the respondents that the subsequent suit does not operate res judicata is attractive to the extent that the principle of res judicata are not applicable under the peculiar circumstances of the present case for the reasons that the earlier suit was not decided on merit, therefore, the provisions of section 11 CPC are not attracted to the circumstances of the present case and the applicants have neither raised the plea of resjudicata in their application regarding rejection of the plaint u/s 11 CPC nor the same point was urged before the learned trial court nor the learned trial court recorded any verdict on applicability of section 11 CPC under the circumstances of the present case and the learned appellate court without discussing or commenting on the pleas discussed by the learned trial court, decide the applicability of section 11 CPC under the circumstances of the present case which was not the case of the parties before the learned trial court. The case law relied upon by the learned counsel for the respondents speaks about the proposition of applicability of section 11 CPC which in my humble opinion is not the case of the either party.

There is no dispute or cavil to the proposition that the applicants have acquired the land in question for construction of head quarter of Shahbaz Rangers and for the said purpose the government has issued preliminary notification u/s 4 of the Land Acquisition Act on 14th April 2000 which has been followed by issuance of another notification u/s 6 of the Land Acquisition Act published on 3rd March 2001 and a perusal of the said notification shows that the land in question has been acquired for public purpose for construction of Shahbaz Rangers head quarter. The respondents inspite of the specific plea raised by the applicants have not disputed the fact that the land in question has not been acquired for construction of head quarter of Shabaz Rangers. Since the notification u/s 4 and 6 of the Land Acquisition Act have already been issued and are available on the record of this case, as such in my humble opinion the civil suit thereby challenging the action of the government in acquisition of the land in question is not maintainable in view of section 52 of the Land Acquisition Act. Section 52 of Land Acquisition Act postulates that no suits or proceedings could be initiated before any civil court which has been filed against any act done in good faith under the provisions of land Acquisition Act. The declaratory suit filed by the respondents, in my humble opinion was therefore, completely barred u/s 52 of the land Acquisition Act.

After considering the whole material available on record as well the relevant contention advanced by the learned counsel for the parties, I am of the firm opinion that the learned appellate court did not exercise the jurisdiction vested in him legally and properly while setting aside the order passed by the learned trial court. The revision applications are therefore, allowed and the judgment and decree passed by the learned appellate court is therefore, set aside and the judgment and decree passed by the trial court are therefore, restored. In the peculiar circumstances of the present case, the parties are left to bear their own costs.

JUDGE

Imran