P L J 1983 Karachi 230

Present: ajmal mian, J ABDUL HAMID-Appeliant

versus

ABDUL GHANI—Respondent

 Second Appeal No. 428 of 1979, decided on 31-1-1983.

<i) Civil Procedure Code (V of 1908)—

Ss. 96 & 11—Appeal from original decree—Competency of—Res- judicata—Applicability of—Held : Appeal being competent against decree and not against judgment, department to have no right to file appeal against decree passed in his favour containing dismissal of suit unless decree drawn in terms of judgment contains adverse find­ings detrimenalt to his interests—Civil Judge though dismissing appellant's suit for specific performance, recording finding favourable to appellant on questions of sale— Held: Respondent being not com- petcnt to file appeal against decree in terms of dismissal of suit, find­ing recorded by Civil Judge on question of sale against respondent not to constitute res judicata. [Pp. 233 &

PLJ 1974 Lah. 311 ;  PLD 1973 Lab. 463 ;  PLD 1958 Kar. 213 ;   AIR 1961 Cal. 39 & AIR 1951 Pan. 444 ref.

<ii) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)—

--- S. 15 and Civil Procedure Code (V of 1908)— S. 100— Second Appeal— Subsequent events— Power of Court to take into considera­tion— Held : High Court sitting in second appeal to be competent to take into account subsequent eveats affecting result of appeal. [P. 234]B

Mr. S. Inayat All, Advocate for Appellant. Mr. F. M. Piracha, Advocate for Respondent. Date of hearing : 23-1-1983.

judgment

This is a second appeal against the orders dated 31-8-78 and dated X-l 1-79 passed by the learned II Rent Controller, Karachi and learned IV Additional District Judge, Karachi, respective in Rent Case No. 2015/73 and Rent Appeal No. 540/79.

The relevant facts leading to the filing of the above second appeal are that the respondent filed above rent case on the ground of default in payment of rent for the period commencing from 19-10-71 to 19-8-73 at Rs. 225 per month. The above application was resisted by the present appellant and in his objections to the rent application inter alia it was pleaded that he was not the tenant of the premises but was the owner by virtue of a sale agreement. The Rent Controller framed a preliminary issue and decided the same against the appellant by his order dated 9-1-78. It seems that against the above order the appellant filed on appeal, which was dismissed. After that the Rent Controller passed a tentative rent order on 1-2-78, in which the appellant was directed to deposit Rs. 16,762,50 ' being the arrears of rent before 15th March, 1978 and also to deposit future monthly rent at Rs. 225 per month commencing from January, 197& before 1 5th of each succeeding month. It seems that the appellant com­mitted default of the above tentative rent order and, therefore, the respon­dent filed an application under section 13(6) of the late W.P.U.R.R. Ordinance, 1959, for seeking striking off the appellant's defence, which -application was allowed by the learned Rent Controller by his aforesaid order dated 31-8-78. Against the above order the appellant filed Rent Appeal No. 540/79, which was dismissed by the learned IV Additional District Judge by his aforesaid order dated 8th November 1979. The appellant being aggrived by the above order has filed the present appeal.

2. In support of the above appeal. Mr. Inayat Ali, learned counsel for the appellant has urged that since in suit No. 354/76, which was a suit filed by the appellant for specific performance of the alleged sale agreement •dated 24-2-73 in respect of the tenement in question, the learned Civil Judge recorded a finding in favour of the appellant on the question of sale though the above suit was dismisted, this court should set aside the above two orders as the finding of the learned Civil Judge in the aforesaid suit is binding on the respondent as well as on this court. On the other hand, it has been urged by Mr. P.M. Paracha, learned counsel for the respon­dent that as the appellant's aforesaid suit was dismissed and as there was no decree containing the finding on the question of sala against the res­pondent, the above finding does not constitute a resjudicata for the purpose •of the rresent proceedings.

3.               Mr. Inayat Ali has referred to the case  of Union of India, Ministry of Food and Agriculture (Department of Food) New Delhi v. Pearl Hosiery Mills,  reported  in  AIR 1961 Punjab page 281, and the case of Kamiluddin Ansariv. Director Excise and Taxation, Karachi, reported in PLD 1971   S.C. page 114.   On the other hand Mr. Paracha has referred to the case of Mi..  Khadija Khatoon v. The Additional District Judge, Rawalpindi and two- others, reported in PLD 1973 Lah. 463,  the case of Ghulam Ahmad and another v.  Ata Muhammad and two others, reported in PLJ 1976  Lah. 311, the case of Sanaullah and others v. Ghulam Qadir  and others,  reported   in PLD 1958,  Kar,  213,  the case  of the Commr, for the Port of Calcutta v. Bhairadinram Durgaprosad, reported in AIR 1961 Cal. 38. and the  case  of Ali Ahmad v. Amarnath, reported in AIR 1951. Pan, 444.

4.        In the above Punjab case reported in AIR 1961 Pun. 281 a Division Bench of the Punjab High Court held that Section 96 CPC does not pres­ cribe that it is only that person against whom a decree has been passed or against whom  a relief has been  granted, can  file  an  appeal under th& aforesaid section but any person who can show that he is aggrieved  by  the decree can file an appeal against the same.    In the above case a contractor, who agreed to supply certain quantity of sugar to the Union of India  filed
a suit  for declaration to effect  that the  bank  guarantee given by him stood discharged.   The above suit was infect decreed and   declaration  was- granted.    Against  the above judgment, the appeal was filed by the Uniors of India, which was also dismissed by the High  Court. In the back ground^ of the above facts, the above observations were made by the division bench. In my view the above case has no application to the present case as  in  the instant case the suit was dismissed and no decree containing any finding
contrary to respondent was drawn. Whereas in the second case relied upon by mj. Inayat Ali reported in* PLD 1971 S.C, 114 the question  efore the Supreme Court of Pakistan* was, whether the allotteess of the land in PECHS, who had raised cons­ ruction of buildings in terms of the allotments were liable to pay property tax as it was urged by the allottees that they were not liable to pay any property tax as the land was government land, on which the structures-were raised and they had no lease in their favour of the land. The High Court dismissed the writ petition. The appeal against the above judgment of the High Court was discussed by the Supreme Court of Pakistan through the aforesaid judgment reported in PLD 1971. While discussing the above; appeal, the following observations were made :—

"In short, but for the technical objection no registered lease has beem executed the lands are leased out in perpetuity, and it would indeed be very difficult for the Government to oust them. In any proceeding for ejectment section 53-A of the Transfer of Property Act would afford a valid defence against the ejectment. The agreements clearly show-that the Government has intended to divest itself and to vest the lands-in the sub-licences, but the latter have apparently mala fide omitted to execute the lease as they were requsred to do under the terms of the agreement. In these circumstances to accept the appellant's contention is not only to act directly against the intention of the Legislature as contained in the section 4 of Act of 1958 but also to help the appellants in their wrongful efforts to evade the payment of tax under the said Act."

The above case has also no application. The question in issue before me is, as to whether the finding of the learned Civil Judge in favour of the appellant on the question of sale agreement in a suit, which was dismissed can constitute res judicata in these proceedings.

5. Now, I intend to take up the cases cited by Mr. Paracha. In the first case reported in PLD 1973 Lah. 463, Sardar Mohammad Iqbal, J. (as he then was) held that "it is now well established that adverse finding against the successful party is not a res judicata in a subsequent suit between the parties. If a decree is one of dismissal in favour of the defendant.' In the second case reported in PLJ 1974 Lah. 311, a learned single Judge of the Lahore High Court held that adverse finding in an appellate judg­ment does not constitute res judicata if the appeal was dismissed. In the third case relied upon by the learned counsel for the respondent a Division Bench of the erstwhile High Court of West Pakistan, Peshawar Bench inter alia held that a finding of a' Court not incorporated in a decree drawn does not constitute res judicata, In the 4th case a Full Bench of the Cal­cutta High Court held that the appeal was not maintainable because the decree of the lower appellate Court was entirely in favour of the appel­lant, and, therefore, the appellant could not have any right of appeal against the finding when that finding does not affect the decree which is wholly in its favour. In the last case relied upon by the learned counsel for the respondent a learned single Judge of the Punjab High Court held that where a decree is absolutely in favour of a party but some issues were found against him, he had no right of appeal against the findings, because firstly he was not adversely affected by such findings and, secondly, such findings were not embodied in and did not form part of the decree.

6.    In this regard it may also be pertinent  to refer  to section   96 CPC,, which reads as  follows :—

Section 96.—Appeal from original decree.—(1) Save where otherwise expressly provided ia the b:>dy of this  :>de or by any other law forthe time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorised to-hear appeals from the decisions of such Court.

(2)         An appeal may lie from ati original decree passed ex parte.

(3)         No appeal shall lie from a decree  passed  by the  Court  with con­ sent of parties."

It may be noticed that under the above quoted section 96 an appeal is competent against a decree and not against a judgment. If a decree passed/ drawn is in favour of a defendant containing dismissal of a suit, he has no right to file an appeal under section 96, CPC unless he can show that the decree drawn in terms of the judgment contains an adverse finding detri­mental to his interest. The cases relied upon by Mr. Paracha Advocate on all fours are applicable to the instant case. Since in the present case the decree was in terms of the dismissal of the suit, the respondent could net! have filed an appeal against such a decree. In this view of the matter, the finding recorded by the learned Civil Judge in the aforesaid suit on the question of sale against the respondent does not constitute a res judicata.

7.                It may also be observed that the above judgment  in the   aforesaid  suit was given by the learned  Civil Judge on 8-1-1980 subsequent t  the disposal of the rent application and the first rent appeal.    I am  inclined to take the view that this Court sitting in second  appeal is competent to take into account subsequent events, which may affect the  result of the appeal, If the finding is recorded by  the   learned  Civil  Judge in the  aforesaid suit dismissed in favour of the respondent would have constituted a res judicata
against him, T  would   have decided   the above appeal after  taking into consideration the aforesaid fact.

8.                As regards the merits of the appeal Mr. Inayat Ali was unable to unable to point any thing, which  may  adversely  reflect on the two orders under appeal.   Admittedly the appellant had not complied with the above tentative rent order.

For the aforesaid reasons, [ dismiss the above appeal, but I grant four months time to the appellant to hand over the vacant possession of the premises on the condition that the appellant shall continue to deposit rent in terms of the High Court order till the expiry of the above period, failing which the respondent shall be at liberiy to file an execution application before the expiry of the above period of four months. Furthermore, in •case the appellant fails to handover the vacant possession after the expiry of the above period of four months, the Rent Controller shall issue a writ of ejectment without further notice to the appellant.

<(MIQ)                                                                              Appeal dismissed,