PLJ 2007 SC 650

[Appellate Jurisdiction]

Present: Muhammad Nawaz Abbasi & Ch. Ijaz Ahmad, JJ.

ABDUL HAMID and another--Appellants

versus

DILAWAR HUSSAIN alias Bhalli and others--Respondents

C.A. No. 96 of 2003, decided on 9.2.2007.

(On appeal from the judgment dated 13.7.1999 passed by the Lahore High Court, Lahore, in Civil Revision No. 424-D of 1983).

(i) Civil Procedure Code, 1908 (V of 1908)--

----O. VII, Rr. 11 & 13, S. 11--Rejection of plaint--Deficiency of Court fee--Principle of resjudicata--Applicability--Determination--Second suit with same cause of action was not barred--Rejection of plaint does not pre-clude the presentation of fresh plaint and plaint was not liable to be dismissed on the well-known principle of res-judicata qua filing a fresh suit on the same cause of action--Rejection of plaint has not an adjudication on merits--Earlier suit of the appellant was decreed subject to payment of Court fee short coming can only entail rejection of suit and as mentioned the suit on same cause of action was not barred--Held: Courts below had committed material irregularity to reject the plaint without adverting to O.VII, R. 13.

[Pp. 653 & 654] A, B & C

PLD 1992 SC 256; 1989 SCMR 58; 1995 MLD 1563; PLD 1973 Lah. 495; 2000 YLR 1241; 1984 CLC 2392; 1993 SCMR 1686 & 1984 CLC 3292.

(ii) Interpretation of Statute--

----Statute must be read as an organic whole as laid down by Supreme Court. [P. 654] D

PLD 1993 SC 473 & PLD 1993 Lah. 183.

Mirza Hafiz-ur-Rehman, ASC for Appellants.

Mr. M. Munir Paracha, ASC for Respondents.

Date of hearing: 6.2.2007.

Judgment

Ch. Ijaz Ahmed, J.--Necessary facts out of which the present appeal arises are that appellants filed a suit for ejectment/possession in the Court of Civil Judge, Jhang on 17.10.1972 on the ground that plot in Question No. 79/11/M situated in Basti Atawali, Jhang was purchased by one Muhammad Rafique through an auction held by the Settlement Department and PTD was issued in his favour. Appellants purchased the plot in question from Muhammad Rafique vide registered sale-deed dated 11.7.1970 for consideration of Rs. 1,000/-. Plot in question was in possession of the respondents/defendants. Respondents filed written statement, controverted the allegations levelled in the plaint. The trial Court decreed the suit in favour of the appellants vide judgment and decree dated 24.9.1974 subject to the condition of making up the deficiency in Court fee till 26.10. 974. Respondents being aggrieved filed appeal before the first appellate Court which was rejected and thereafter revision petition filed by the respondents in the Court was also dismissed. The judgment of the trial Court was upheld upto the level of the High Court and the respondents did not file any petition before this Court. Appellants filed execution petition before the executing Court which was refused by the executing Court on the ground that appellants had failed to make up the deficiency in Court fee within the prescribed period, therefore, as directed in the judgment and decree dated 24.9.74 the plaint in their suit stood rejected. The appellants being aggrieved filed appeal in the Court of District Court who had reversed the order of the executing Court and thereafter revision petition filed by the respondents/defendants was accepted by the learned High Court by observing that the decree had become un-executable. Thereafter appellants filed second suit for possession in the Court of Civil Judge, Jhang qua the same subject-matter and cause of action. Respondents/defendants filed written statement, controverted the allegations levelled in the plaint and raised various preliminary objections including the preliminary objection that the second suit was barred by res-judicata. The trial Court on the request of the learned counsel for the parties framed the preliminary issue to the following effect:

"Whether the present suit is barred by Res-judicata? OPD

2. Both the parties were provided opportunity to produce their evidence. The parties had placed on record certain judgments, copy of plaint, written statement in previous suit and appeals. The trial Court dismissed the suit vide judgment and decree dated 26.4.1982 as the second suit was not maintainable on the well known principle of res-judicata. Appellants being aggrieved filed appeal in the Court of District Judge who dismissed the same and the revision petition filed by the appellants in the Lahore High Court was also met with the same fate. Appellants filed C.P., No. 1809-L/1999 before this Court which was fixed on 27.1.2003 and leave was granted.

3. The learned counsel for the appellants submits that all the Courts below had erred in law to dismiss the suit of the appellants on the principle of res-judicata inspite of the fact that principle of res-judicata was not applicable in the given circumstances as the earlier suit was filed by the appellants was not dismissed and their plaint was rejected.

4. The learned counsel for the respondents has supported the impugned judgment and further maintains that earlier suit was dismissed on merits in case the judgment be read as a whole, therefore, all the Courts below were justified to reject the plaint of the appellants under Order VII Rule 11 CPC.

5. We have considered the submissions made by counsel for the parties and have also perused the record. It is better and appropriate to reproduce operative part of the judgment of the trial Court in the first round of litigation and relevant provisions of CPC to resolve the controversy between the parties:--

OPERATIVE PART OF JUDGMENT OF TRIAL COURT IN THE FIRST ROUND OF LITIGATION.

"According to my findings on Issue No. 7, the plaintiffs are entitled for the decree of possession against the defendants. Accordingly it is passed in their favour with costs. In accordance to my findings on Issue No. 3, the plaintiffs are directed to make good of the deficiency of the Court fee amounting to Rs. 71/- before 26-10-1974, otherwise their plaint will be rejected."

Sec. 11 of CPC-Res judicata--"No Court shall try any suit or issue in which the matter directly and substantially in issue has 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 Court."

Explanation I.--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.

Explanation II.--For the purposes of this Section, the competence of a Court shall be determined irrespective of any provisions as to right of appeal from the decision of such Court.

Explanation III.--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.

Explanation IV.--The 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.

Explanation V.--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.

Explanation VI.--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 persons so litigating.

Order VII Rule 11 of CPC: 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, 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.

Order VII Rule 13 of CPC: Where rejection of plaint does not preclude presentation of fresh plaint.--The rejection of the plaint on any of the grounds hereinbefore mentioned shall not of its own force preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action."

6. Mere reading of the aforesaid provisions of law and operative part of the judgment of the trial Court in the first round of litigation clearly show that their plaint was rejected in terms of judgment dated 24.9.1974. All the Courts below had not adverted to Order VII Rule 13 CPC. It is evident from the aforesaid Order VII Rule 13 CPC that rejection of plaint does not pre-clude the presentation of fresh plaint and the plaint was also not liable to be dismissed on the well known principle of res-judicata qua filing a fresh suit on the same cause of action as law laid down by this Court in various pronouncements. Reference can be made to the following judgments:

(i) Sakhi Muhammad's case (PLD 1992 SC 256),

(ii) Abdul Satar's case (1995 MLD 1563],

(iii) Munawwar Hussain's case (2001 YLR 1241) and

(iv) Mian Khan's case (1989 SCMR 58).

7. It is also a settled law that rejection of plaint has not an adjudication on merits. It is a decree only by fiction, therefore, there is no bar to file fresh suit. Reference can be made to the following judgments:

(i) Mst. Kaneez Fatima's case (PLD 1973 Lah. 495) and

(ii) Abdul Majid's case (1984 CLC 2392).

8. In the case of Mst. Kaneez Fatima supra, the learned High Court had laid down aforesaid principle after considering all the case law on the subject. It is an admitted fact that earlier suit of the appellant was decreed subject to payment of Court fee short coming can only entail rejection of suit and as mentioned above suit on same cause of action was not barred. See Abdul Majeed's case (1993 SCMR 1686), and Sher Muhammad's case (1984 CLC 3292). All the Courts below have committed material irregularity to reject the plaint, of the appellants without adverting to Order VII Rule 13 CPC. It is an admitted fact that Order VII Rule 1 CPC is procedural in nature. It is a settled law that statute must be read as an organic whole as laid down by this Court in various pronouncements. See Mian Nawaz Sharifs case (PLD 1993 SC 473) and Mst. Iqbal Begum's case (PLD 1993 Lah. 183). The relevant observation is as follows:--

"To start with, it must be kept in mind, first, that the provisions of Order VII, Rule 11 are procedural provisions, and secondly that on the principle that the first and the best source from which to ascertain the meaning of any statute is the statute itself, the Code of Civil Procedure must be read as a whole, that is to say, those provisions must not be read in isolation, and if intrinsic aid is afforded in their interpretation by other provisions of the Code, that aid must be made use of"

9. For what has been discussed above, the appeal is allowed and the judgments of the Courts below are set aside and the case is remanded to the trial Court to decide the same afresh on merits after framing the proper issues in view of pleadings of the parties strictly in accordance with law.

(W.I.) Appeal allowed.