PLJ 2025 Lahore 1003
[Multan Bench Multan]
Present: Syed Ahsan Raza Kazmi, J.
FARID BAKHSH (deceased) through L.Rs.--Petitioners
versus
KIRAN NAZ etc.--Respondents
C.R. No. 285-D of 2020, decided on 20.8.2025.
Civil Procedure Code, 1908 (V of 1908)--
مقررہ فیصلہ (Res judicata)
– ثبوت کی کمی پر مقدمہ خارج ہونا – اصل معاملے پر فیصلہ – مقدمہ کی مستردگی – حکم کا حتمی ہونا – بعد میں دائر کیے گئے مقدمہ کی ممانعت – فریقین کے اضافہ کو نئی وجہِ دعویٰ نہیں سمجھا جائے گا – متوازی فیصلے – ایک بار جب معاملات طے پا چکے ہوں اور ثبوت پیش کرنے کے مواقع مل چکے ہوں تو، او. سترہ، رول 3 سی پی سی کے تحت ثبوت کی کمی پر مقدمہ خارج کرنا اصل معاملے پر فیصلہ شمار ہوتا ہے اور مدتِ دعاویٰ کے ختم ہونے کے بعد وہ فیصلہ حتمی ہو جاتا ہے – دونوں مقدمات کا موضوع ایک جیسا تھا – 05.11.2015 کی تاریخ کا حکم جو حتمی ہو چکا ہے، اس کے بعد دائر کیا گیا مقدمہ جو ایک ہی ملکیت اور منتقلی سے متعلق تھا، مقررہ فیصلے کی ممانعت کے تحت مسترد کیا جاتا ہے – دوسرے مقدمہ میں سرکاری مدعیوں یا گواہوں کا اضافہ مقدمے کی نوعیت کو نہیں بدلتا اور نہ ہی یہ نئی وجہِ دعویٰ پیدا کرتا ہے – عدالت کو چاہیے کہ ایسی درخواست مسترد کر دے جہاں درخواست میں موجود بیانات اور تسلیم شدہ سابقہ ریکارڈ سے ظاہر ہو کہ مقدمہ قانونی طور پر ممنوع ہے – متوازی فیصلوں میں کوئی غلط فہمی یا غور نہ کرنے کی غلطی نہیں پائی گئی۔
----S. 11, O. XVII, R. 3 & O. VII, R.11(d)--Res judicata--Dismissal for want of evidence--Decision on merits-Rejection of plaint--Finality of decree--Subsequent suit barred--Addition of parties not fresh cause of action--Concurrent findings--Once issues had been settled and opportunities to lead evidence afforded a dismissal under O.XVII, R.3 CPC for want of evidence, is dismissal on merit and after laps of limitation same attained finality--Subject matter of both suit was identical--Decree dated 05.11.2015 having attained finality, subsequent suit involving same mutation and property was barred by res judicata addition of official respondents or witnesses in second suit neither altered nature of lis nor generated a new cause of action--Court to rejecte a plaint where, from statements in plaint read with admitted prior record, suit appeared to be barred by law--Concurrent findings suffer from no misreading or non-reading.
[Pp. 1005 & 1006] A, B, C & D
Haji Muhammad Tariq Aziz Khokhar, Advocate for Petitioners.
Date of hearing: 20.8.2025.
Order
This revision petition is directed against the orders passed by the learned Civil Judge 1st Class, Rajanpur dated 20.12.2017 and the judgment of the learned District Judge, Rajanpur dated 16.01.2020, whereby the plaint of the petitioner was rejected under Order VII Rule 11(d) of the Code of Civil Procedure, 1908, on the ground that the suit was barred by Section 11 thereof. Both Courts below concurrently held that the subsequent suit instituted by the petitioner was hit by the doctrine of res judicata. Having heard learned counsel for the parties and examined the record, the controversy before this Court is confined to whether the dismissal of the earlier suit on 05.11.2015 under Order XVII Rule 3 amounts to a decision on merits, thereby barring the subsequent proceedings under Section 11.
2. In that backdrop, the points that arise for determination are: (i) whether a dismissal under Order XVII Rule 3 CPC for want of evidence amounts to a decision on merits; (ii) whether the subsequent suit, involving the same mutation and property, is barred by res judicata under Section 11 CPC; and (iii) whether impleadment of additional respondents or witnesses in the later round constitutes a fresh cause of action.
3. Arguments heard and record perused.
4. The factual matrix is not in dispute. The petitioner had earlier instituted a suit concerning the same mutation and the same property against Respondent No. 1 on an identical cause of action. That suit was contested, issues were framed and repeated opportunities were afforded to the petitioner to produce evidence. Upon his persistent failure to do so, the trial Court, invoking power under Order XVII Rule 3 CPC, dismissed the suit by judgment and decree dated 05.11.2015. The decree was appealable. However, no appeal was preferred and it therefore attained finality. Thereafter, on 09.04.2016, the petitioner instituted a fresh suit seeking substantially the same relief, this time adding certain government officials and witnesses as parties of impugned mutation. A preliminary objection under Order VII Rule 11(d) CPC was raised; the trial Court upheld it and the appellate Court affirmed that decision.
5. It will be convenient here to discuss the relevant provisions on the subject under Civil Procedure Code, 1908. Section 11 C.P.C. enacts that 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 those claiming under them), litigating under the same title, in a Court competent to try the subsequent suit, and heard and finally decided by such Court.
i. Explanations II, IV and VI widen the sweep: Explanation II treats any matter which might and ought to have been made a ground of attack or defence in the former suit as deemed to have been a matter directly and substantially in issue (constructive res judicata). Explanation VI recognizes binding effect upon persons claiming under parties or represented interests. The doctrine rests on finality of litigation and public policy, preventing vexation, multiplicity and inconsistent verdicts.
ii. Order XVII Rule 3 C.P.C.: where a party, after opportunities, fails to produce evidence or cause, the Court may notwithstanding such default, decide the suit forthwith. A decision under Rule 3, rendered after the case has been set down for evidence on framed issues, is a decision on merits; the proper remedy is appeal, not re-litigation in a fresh suit.
iii. Order VII Rule 11(d) C.P.C. authorizes rejection of a plaint where, from the statements in the plaint and undisputed record, the suit appears barred by law. If the earlier decree and relevant pleadings are before the Court and identity of cause/parties is not in dispute, the bar of Section 11 may be applied at the threshold.
6. The petitioner urges that the earlier dismissal was not on merits and hence res judicata does not apply; it is further contended that impleading additional respondents created a fresh cause of action. These submissions cannot prevail. Once issues have been settled and opportunities to lead evidence afforded, a dismissal under Order XVII Rule 3 for want of evidence is dismissal on merit and after lapse of limitation same attained finality as the Hon’ble Supreme Court of Pakistan has held in judgment reported as Muhammad Raqeeb vs. Government of Khyber Pakhtunkhawa through Chief Secretary, Peshawar and others (2023 SCMR 992) as under:
“Finality of judgments eliminates the judicial process, proscribing and bring successive appeals or challenging or questioning the judicial decision keeping in view the rights of the renowned doctrine of res judicata explicated under section 11 of the Code of Civil Procedure, 1908…”
Further reliance in respect is placed upon the judgments reported as Shahid Hussain vs. Lahore Municipal Corporation (PLD 1981 SC 474), Muhammad Chuttal vs. Atta Muhammad through L.Rs. (2007 SCMR 373)), Amaan Knitwears through Managing Partner vs. Sui Northern Gas Pipelines through Managing Director and others (2025 YLR 405), Muhammad Amin and others vs. WAPDA through Chairman and others (2015 MLD 1327), Niaz Ahmed Khan vs. Kishwar Begum and 19 others (PLD 2003 Lahore 48), Iqbal Ahmed and 12 others vs. Province of Sindh through Secretary Revenue, Board of Revenue and 27 others (2015 YLR 2572) and Muhammad Soof Muhammad Bachal and others vs. Muhammad Ayoob (deceased) through his L.Rs. and others (2022 (M) SLJ 24 (Sukkur). In contrast the reliance placed by learned counsel for the petitioner on judgments reported as Muhammad Sharif and others vs. Muhammad Hanif and others (2010 CLC 830) and Rasheed Ahmad Khan vs. Muhammad Ashraf through his real mother and others (2015 CLC 1127) is misconceived, as the former case concerned dismissal in default rather than a decision rendered after settlement of issues and in the later precedent the plaintiff filed suit on entirely different claim/cause of action. Accordingly, point (i) is answered in the affirmative: the earlier dismissal was a decision on merits.
7. As to point (ii), Section 11 CPC prohibits re‑litigation of matters directly and substantially in issue in a former suit between the same parties, litigating under the same title, once decided by a competent Court. In the present matter, the subject matter of both suits was identical: the same mutation and the same immovable property arising out of the same cause of action. The decree dated 05.11.2015 having attained finality, the subsequent suit was barred by res judicata. Any grounds which might and ought to have been urged earlier are also foreclosed by Explanation IV to Section 11.
8. It is of significance that the decree dated 05.11.2015 was never challenged by way of appeal. The finality of that decree is beyond cavil. To allow the petitioner to reopen the controversy in a subsequent suit would be to undermine the principle of finality of litigation, which is the very foundation of Section 11 C.P.C.
9. Regarding point (iii), the addition of official respondents or witnesses in the second suit neither altered the nature of the lis nor generated a new cause of action. The relief remained the same and the controversy unchanged in substance; multiplication of parties or re‑phrasing of pleadings cannot be employed to circumvent Section 11.
10. Order VII Rule 11(d) CPC empowers the Court to reject a plaint where, from the statements in the plaint read with the admitted prior record, the suit appears to be barred by law. In the present case, the bar of Section 11 was patent. The trial Court, therefore, rightly rejected the plaint at the threshold and the appellate Court committed no error in affirming that order. The concurrent findings suffer from no misreading or non-reading of the record, no illegality or material irregularity, and disclose no jurisdictional error warranting interference under Section 115 CPC.
11. For these reasons, it is held that dismissal under Order XVII Rule 3 CPC for want of evidence amounts to a decision on merits; the subsequent suit concerning the same mutation and property was barred by Section 11 CPC; and impleadment of additional respondents or witnesses did not create a fresh cause of action.
12. In view of above discussion, this Civil Revision being devoid of any merit is dismissed in limine.
(J.K.) Civil revision dismissed
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