PLJ 2006 SC 1240
[Appellate Jurisdiction]
Present: Mian Shakirullah Jan, Ch. Ijaz Ahmad and
Syed Jamshed Ali, JJ.
KHAIR MUHAMMAD--Petitioner
versus
MUHAMMAD HUSSAIN and others--Respondents
Civil Petition No. 5-Q of 2005, decided on 19.4.2006.
(On appeal from the judgment dated 22.11.2004 passed by High
Court of Balochistan,
(i)
Civil Procedure Code, 1908 (V of 1908)--
----S. 11--Constitution of
(ii)
West Pakistan Urban Restriction Ordinance, 1959 (VI of 1959)--
----S. 13(6)--Constitution of
AIR 1927 Lahore 289; ILR 29 Madras 333;
AIR 1946 Oudh 33; AIR 1953 SC 252; PLD 1957 (W.P.) Peshawar 129; 1992 SCMR 979
and PLD 1961 (W.P) Karachi 38, relied.
1992 MLD 771; PLD 1961
Mr. M.W.N. Kohli, AOR for the Petitioner.
Respondent No. 1 in person.
Mr. Kamran Murtaza, ASC for Respondent
No. 4.
Date of hearing: 19.4.2006.
Order
Syed Jamshed Ali, J.--Leave is sought
against the judgment dated 22.11.2004 of the learned High Court of Baluchistan,
2.
Vide a rent note dated 18.2.1993, Abdul Haleem, predecessor-in-interest
of Respondents Nos. 1 and 2 and Malik Masud-ul-Hassan, Respondent No. 3 let out
to the petitioner a hotel on a constructed area of 900 Sq. ft. and a plot of
1350 Sq. ft. at a monthly rent of Rs. 12,250/-. The petitioner, however,
encroached upon another adjacent vacant site belonging to Quetta Development
Authority (Q.D.A.) and raised illegal construction thereon when it came to the
notice of the Q.D.A. it was demolished. On the default of the petitioner, the
private respondents filed an ejectment petition. In pursuance of an order
passed by the learned Rent Controller under Section 13(6) of the Rent
Restriction Ordinance, 1959, the petitioner continued to deposit the rent and
during the said proceedings the Rent Controller had passed a restraint order
against payment of the deposited rent to the land-lords. The petitioner was
eventually, ordered to be ejected on 8.3.1999. In pursuance of order under
Section 13(6) an amount of Rs. 3,55,750/- was deposited in the Court by the
petitioner which covered the period from November, 1996 to February, 1998. And,
from March, 1998 upto
"It is declared that the land-lord
Babu Abdul Haleem was/is entitled to receive the only rent to the extent of 900
Sq. ft. belong to him while tenant Khair Muhammad is only to receive back rent
paid and deposit to the extent of 1350 Sq. ft. of the adjacent area which
belongs to Q.D.A. Department. However, the prayer of the decree regarding
expenses incurred in construction and payment of PAGRI of the tenant Khair
Muhammad is declined. The Civil Court has no power to fix the fair rent of an
area falls under Rent Restriction Ordinance, therefore, both the parties at
liberty to approach the Rent Controller for determination of the fair rent
regarding 900 Sq. ft. covered area and 1350 Sq. ft. adjacent area and after
decision of that application, they approach for execution of decree passed by
this Court".
3.
The respondents filed an appeal against the judgment and decree passed
in their suit. The learned First Appellate Court found that the area of 1350
Sq. ft. did not belong to the Q.D.A. and the area of the Q.D.A., on which
illegal construction was raised by the petitioner, was not included in the area
leased out to the petitioner. With this finding, the appeal was allowed and the
respondents-land lords were held entitled to the rent claimed by them for 1350
Sq. ft. The revision petition filed by the petitioner was dismissed vide
judgment dated 22.11.2004 which is impugned in this petition.
4.
The only contention of the learned counsel is that the suit of the
petitioner was numbered as 55-A/2001, while that of the respondents was
54-A/2001, yet separate decrees were passed in both the suits but the decree
passed in Suit No. 55-A was not challenged with the result that appeal against
the decree passed in the Suit No. 54-A was not maintainable because the decree
in the Suit No. 55-A/2001 operated as res judicata.
5.
The submission made has been considered. Apart from the fact that it was
not pressed before the learned High Court at the time of hearing, it has
otherwise no merit. In both the suits, the main controversy was whether the
respondents were entitled to receive rent in respect of 1350 Sq. ft. It was decided
by the trial
Court in favour of the petitioner in his suit which
was reversed by the learned First Appellate Court. Thus, as against the decree
of the learned trial Court in Suit No. 55-A which was verbatim, copy of the
decree sheet in Suit No. 54-A, the decree of the learned First Appellate Court
of appeal will prevail. Thus, in the circumstances of the case, it was not
necessary for the respondents to challenge the decree passed in the suit of the
petitioner to claim the same relief which they could obtain in the appeal
against the decree passed in their suit. It was a case in which there was one
decision followed by separate decrees. It was more a matter of form than of
substance.
6.
The issue as to the effect of omission to challenge the second decree
followed by a single judgment has been subject-matter of serious debate before
the High Courts of Madras,
"It must, therefore, be settled at
the very outset whether S. 11 applies to appeals or whether its operation is
limited only to suits as meaning proceedings in an action in Courts of the
first instance as distinguished from proceedings in appellate Courts. After a careful
examination of the section, I have reached the conclusion that it applies to
suits only and not to appeals."
"Let us see what are the fundamental
principles of res judicata and how do they affect the present case. It has
already been indicated that the foundation of the rule, as understood both by
ancient and modern lawyers is that a question must be once fairly and finally
tried by a competent Court and after this has been done all further litigation
about it should be concluded for ever between the parties. The maxim is, as has
been stated above, that "no one shall be vexed twice over the same
matter". This, to my mind, presupposes that the issue has been once fairly
and finally tried in a former litigation, which was independent of the proceedings
in which the matter is again in dispute. The essence of the rule seems to me to
be that the two proceedings should be so independent of each other that the
trial of one cannot be confused with the trial of the other. Where two suits,
having a common issue, are, by consent of parties or by order of the Court,
tried together, the evidence being written in one record and both suits
disposed of by a single judgment, can it be said that there have been two
distinct and independent trials? There being but one finding and one judgment,
on what principle can the hearing of the appeal in which this finding and this
judgment are under consideration be barred merely because no appeal has been
filed in the connected suit which was disposed of by that very judgment? There
has been, in substance as well in form, but one trial and one verdict, and, I
venture to think, it will be a travesty of justice to stifle the hearing of the
appeal against such a judgment on the ground that the findings contained in it
operate as res judicata. In such a case there can be no question of the
successful party being "vexed twice" over the same matter, nor does
the hearing of the appeal in any way militate against any rule of public
policy, which requires that there must be an end of litigation. There is not
only nothing here to attract the principles underlying the rule of resjudicata,
but, on the other hand, it seems to me that the acceptance of such a plea in
such circumstances would strike at the very root of the basic conception of the
doctrine which requires that a party must have at least one fair trial of the
issue resulting in a decision by the Court of ultimate appeal as allowed by the
law for the time being in force."
"Another point remains to be
noticed, viz., that even though the two suits were tried together, and may be
taken to have been disposed of by one judgment, yet two decrees were actually
passed, one in each suit, and as only one such decree has been appealed
against, the other remains outstanding and has become final. It is suggested,
that if the appeal is allowed to proceed and is successful, an anomalous and
embarrassing situation of having two inconsistent and contradictory decrees on
the record of the Court might be created. This argument, which at first sight
appears to be unanswerable, is the basis of the leading
"That the circumstance that a decree
in a former suit is outstanding in favour of the defendant is in itself
insufficient to support the plea of res judicata is further clear from the
Privy Council decisions in Sheo Sagar Singh v. Sita Ram Singh (38) and Abdullah
Asghar Ali v. Ganesh Das (39), in each of which, though the decree in the
former suit was subsisting in favour of the defendant, the subsequent suit was
allowed to proceed as the matter could not be said to have been finally decided
therein. In determining, therefore, whether the plea has any force, attention
must be concentrated, not upon the fact that there is a record of an
outstanding decree in favour of a party, but upon the question whether there
has been an independent decision upon which the record was based".
"Looking at the matter from another
standpoint we arrive at the same conclusion. When the parties decide to have
the two suits tried together, the strictly proper procedure would have been to
pass a formal order of consolidation, and it that had been done only one decree
would have been prepared and one appeal would have been sufficient. Where this
formality has not, however, been gone through, but a virtual consolidation of
the suits has been (as suggested above) brought about, I think the position of
the parties should not be in any way made worse. As pointed out in Damodar Das
v. Sheoram Das (11), which has been approved in Ghansham Singh v. Bhola Singh
(9), there is in such a case in reality "but one decree, though written in
duplicate" on two different pieces of the paper, one of which is attached
to the record of each suit. Looking, therefore, to the substance of the matter,
rather than to its form, one appeal should be considered to be sufficient. I
am, therefore, of opinion that no "estoppel by record" is created by
the omission to appeal against the second decree in such a case".
"For it is now well settled that, if
two or more conflicting decrees happen to be passed regarding the same property
in two different proceedings, it will be the last one which will prevail. In
such cases the later decision should be taken as superseding the earlier, and
is thenceforward the only effective adjudication"
7.
Based on the above reasoning the learned full Bench drew the following
conclusions:--
"The result of the examination of
the rulings of the various High Courts may be summed up as follows:
(a) The
Madras High Court is whole heartedly in favour of the right to proceed.
(b) The
Allahabad High Court has held different views at different times, but the
tendency of the latest decisions is in favour of the right to proceed.
(c) The
opinion of the majority in Mariam Nissa Bibi v. Joynab Bibi (8) is in favour of
the right to proceed. In the
(d) The
High Courts of Patna and Rangoon have followed the earlier decisions of the
Allahabad High Court but these latter are no longer considered to be
authoritative in that Court itself.
(e) In
the Punjab the rulings are not uniform, but on the whole, it seems to me that
though much of the reasoning of the Full Bench judgment in Jogul Kishore v.
Chammo (2) cannot be supported the conclusion arrived at in that case is
correct".
8.
The other important case to be noted in full bench judgment of the
learned Madras High Court in Panchanda Velan vs. Vaithinatha Sastrial and others
(ILR 29 Madras 333). The facts of the case were quite close to the facts of the
instant case. There were two cross suits between the landlord and a tenant
which were tried together. While the tenant's suit was dismissed, the suit of
the landlord was decreed. The tenant went in single appeal against the
dismissal of his suit. The District Judge dismissed the appeal as being hit by
res judicata. The learned full bench of the Madras High Court interfered in the
matter with the following observations:--
"Technically, no doubt, the tenant's
appeal ought to have been in both suits and the proper course for the District
Judge to have taken would have been to require the appellant to amend his
memorandum of appeal so as to make it an appeal in both suits; but the fact
that the tenant only appealed in his own suit and did not prefer an appeal in
the landlord's suit did not preclude the District Judge from deciding upon the
merits the question raised in the appeal which was before him. The subject
matter of the litigation in the two suits was the same, the evidence was the
same, and the two suits were tried together. The reasons for which the tenant's
suit was dismissed were the reasons for which judgment was given in favour of
the landlord in his (the landlord's) suit."
(Underlining is ours to supply emphasis)
9.
The next important case is Full Bench judgment of the learned Oudh High
Court in B. Shankar Sahai vs. B. Bhagwat Sahai (AIR 1946 Oudh 33). In the said
case, the following question was referred to the learned Full Bench:--
"(i) Where
two suits between the same parties involving common issues are disposed of by
one judgment but two decrees, and an appeal is preferred against the decree in
one but it is either not preferred in the other or is rejected as incompetent
does the matter decided by the latter decree become res judicata, so that it
cannot be re-opened in appeal against the former?
After examining the entire case-law, the
learned Judges answered the question in the negative and stated:
"If the consolidated judgment in
suits between the same parties wherein common issues are raised and disposed
of, forms the foundation of two decrees and it is reopened so as to necessitate
the re-examination of the grounds on which the decision rests, it can scarcely
be said that it represents in any sense a final adjudication between the
parties. The suggestion that the single judgment must a fiction be regarded as
two independent separate judgments governing two separate decrees between the
same parties appears to us to be more imaginary than real. If the grounds for
decision are common and are attacked as erroneous, the finality cannot be
invoked for supporting a plea of res judicata till it has in fact become final.
In the case before us the subject-matter of the litigations as well as the
evidence in both cases is the same. The trial is one trial and the reasons,
which necessitated the dismissal of one case, are also the reasons which
impelled the Court to pronounce in favour of the plaintiff in the other. If the
object of the appeal is to get rid of this adjudication, it is only the
technical consideration of form which can alone be restored to for the success
of the plea of res judicata. The success of the plea of res judicata. The
existence of two decrees is merely for the sake of complying with the barest
formalities of law, and it will, in our judgment, be the negation of the
principle to say that a matter, which is still res integra, should operate
nevertheless as res judicata. The forceful objection of Sir Aushotosh Mukerji
in 37 C.L.J. 184 that to permit one appeal in these circumstances was
tantamount to allow the decision, from which no appeal was filed, to be
"collaterally attacked or implicitly ignored" seems, if we may say so
with very great respect, to over look the fundamental feature of the case,
namely that there is only one trial, one evidence and one decision".
10.
The rule laid down by the learned full bench of the Lahore High Court in
11.
In the full bench judgment of the Peshawar High Court in Muhammad Zaman
Khan vs. Inzar Gul and others (PLD 1957 (W.P.)
"Where two or more suits have common
issues, are consolidated by the order of the Court, are tried at one and the
same time, only one record of issues and evidence is prepared in all of them
and finally they are adjudicated upon ad disposed of by one single judgment,
the Court applying its mind only once to all cases collectively treating them
as one case, then in substance as well as in form there will most definitely by
one trial and one verdict in all those suits. To hold otherwise would, if I may
venture to say so strain credibility and would amount to flying in the face of
the realities."
In this case the judgment in the case of
Mst. Lachmi supra was followed.
12.
The question also came up for consideration before this Court in Siraj
Din and 11 others vs. Rajada (1992 SCMR 979). The issue was disposed of with
the following observation:
"After hearing the learned counsel
for the parties sand going through the records, we find that in fact as the
memo of appeal filed before the District Judge shows at the very first
opportunity the judgment in both the suits had been challenged. It was not an
appeal in one case and not in the other. Copy of the decree sheet of Civil Suit
No. 6 had been filed but not of Civil Suit No. 7 of 1972. It at that stage by
examining the memorandum of appeal corrective steps had been taken and
appellants asked to file copy of the decree sheet ad judgment separately in
Civil Suit No. 7 of 1972 in order to bifurcate the composite attack, no such
anomaly would have resulted. The failure here and at this stage was partly of
the Court and its functionary. The parties should have known better. All such
technical failures could be remedied if properly attended to promptly. Even at
the argument stage, the District Judge should have deferred the decision in
order to achieve the same and after allowing the opportunity to the parties to
file the same. There was no question of treating the appeal to be one confining
to Civil Suit No. 67 of 1972 when in fact the substance of the appeal attacked
the decisions in both the suits."
(Underlined to supply emphasis)
13.
The learned Karachi High Court in Allahdin and others vs. Jamshed Aderji
Dubash (PLD 1961 (W.P.) Karachi 38) took the similar view.
14.
It would not be out of place to note the contrary view. The first is expressed
in the judgment of the Karachi High Court in Ghiyasuddin and another vs.
Muhammad Ismail (1992 MLD 771). This is based on Jamini Kanta Roy Chowdhury
and others vs.
Aswini Kumar Haldar
and others (PLD 1961 Dacca 344). The other judgment of
the Lahore High Court is Shukar Din and others vs. Nazir Ahmed and others (1993
CLC 1367). Similar view was also taken by the learned division bench of the
Lahore High Court in Sh. Muhammad Riaz Diwana through his legal heirs vs. Sh.
Muhammad Sharif and others (1989 MLD 3663).
15.
From perusal of the above precedent cases, it is clear that
preponderance of opinion has been in favour of the view taken by the learned
full bench of the Lahore High Court in
16.
Therefore, in the circumstances of the case, no injustice has been done
in view of the adjudication of the first Court of appeal and the learned High
Court that the respondents-landlords were entitled to the rent for the area of
1350 Sq. Ft. We therefore, do not find any merit in this petition which is
dismissed and leave declined accordingly.
(M.
Ajmal Rana) Petition dismissed.