Constructive Res Judicata

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Citation Name : 2020 PLD 324 SUPREME-COURT

Side Appellant : JUBILEE GENERAL INSURANCE CO. LTD., KARACHI
Side Opponent : RAVI STEEL COMPANY, LAHORE
S. 11---Multiple remedies/fora available to claimant---constructive Res judicata, doctrine of---Scope---Where multiple remedies were
available against any order, judgement and or decision then it was the prerogative of the suitor to elect and pursue one out of the
several hierarchy or channel of remedies---Suiter having availed and exhausted one of the several hierarchy or channel of remedy,
doctrine of constructive res-judicata, debared him to adopt one after another hierarchy, course or channel of remedies.

Side Appellant : JUBILEE GENERAL INSURANCE CO. LTD., KARACHI
Side Opponent : RAVI STEEL COMPANY, LAHORE
S. 11 & O.VI, R. 4, & O.VIII, R. 2---Pleadings and written statement---Particulars to be given where necessary---New facts to be
specifically pleaded in written statement---Res judicata, doctrine of---Scope---Both the plaintiff and defendant had to plead all facts
that may constitute cause of action for any relief and for the defendant which may constitute a defence to specifically refute any claim
on merits as well raising specific defence denouncing claim on the assertions of fraud, limitation, release, payment, performance or
facts showing illegality---Failure to raise such plea at the first opportunity (either in plaint or written statement) may be successfully
defeated on doctrine of constructive res-judicata, in subsequent proceedings.
Citation Name : 2019 SCMR 998 SUPREME-COURT

Side Appellant : GOVERNMENT OF PUNJAB through Secretary Communication and Works Department Lahore
Side Opponent : MUNIR AHMAD TARIQ
S. 11---constructive res-judicata---Where an omnibus order was passed and a party to a case accepted a decision passed against it, then
it could not subsequently take advantage of the fact that such decision upon challenge by some other party before a higher forum stood
reversed and ask for the same relief to be granted to him also---Such bar was based on the principle of constructive res judicata.
Citation Name : 2018 CLD 203 SUPREME-COURT
Side Appellant : GULISTAN TEXTILE MILLS LTD.
Side Opponent : SONERI BANK LTD.
S. 11---Res judicata, principle of---Application of said principle to interlocutory applications---Scope---Section 11, C.P.C, which
codified the principle of res judicata, specifically referred to 'suits' and therefore restricted the application of the principle thereto---
Interlocutory application could not be regarded as 'suit'; hence, strictly speaking S.11, C.P.C would not be attracted to such
application---Nevertheless, the general legal principles of res judicata would most certainly apply---Order passed pursuant to any
interlocutory application at one stage of the proceedings would operate as a bar upon similar interlocutory applications made at a
subsequent stage of the proceedings based on the general principles of res judicata---Said general rule of res judicata would however
not apply where the order on such interlocutory application did not involve any adjudication---Examples of such instances were;
where there was no decision on merits, but a mere expression of opinion not necessary for the disposal of the application; where a
matter, though in issue had, as a fact, not been heard and decided, either actually or constructive ly; where a matter in issue had been
expressly left open and undecided; where the suit was not pressed; or where the suit was withdrawn; where an application had been
decided once, but subsequently a fresh application was made on facts and circumstances different from those which existed earlier;
and where an application was dismissed as being premature etc.---Proof of new facts or circumstances was necessary in order to
exclude the application from the bar of res judicata in respect of interlocutory applications during the pendency of a suit.

Side Appellant : GULISTAN TEXTILE MILLS LTD.
Side Opponent : SONERI BANK LTD.
S. 11---Res judicata, principle of---Application of said principle to interlocutory applications---Scope---Section 11, C.P.C, which
codified the principle of res judicata, specifically referred to 'suits' and therefore restricted the application of the principle thereto---
Interlocutory application could not be regarded as 'suit'; hence, strictly speaking S.11, C.P.C would not be attracted to such
application---Nevertheless, the general legal principles of res judicata would most certainly apply---Order passed pursuant to any
interlocutory application at one stage of the proceedings would operate as a bar upon similar interlocutory applications made at a
subsequent stage of the proceedings based on the general principles of res judicata---Said general rule of res judicata would however
not apply where the order on such interlocutory application did not involve any adjudication---Examples of such instances were;
where there was no decision on merits, but a mere expression of opinion not necessary for the disposal of the application; where a
matter, though in issue had, as a fact, not been heard and decided, either actually or constructive ly; where a matter in issue had been
expressly left open and undecided; where the suit was not pressed; or where the suit was withdrawn; where an application had been
decided once, but subsequently a fresh application was made on facts and circumstances different from those which existed earlier;
and where an application was dismissed as being premature etc.---Proof of new facts or circumstances was necessary in order to
exclude the application from the bar of res judicata in respect of interlocutory applications during the pendency of a suit.

Side Appellant : STATE BANK OF PAKISTAN through Governor
Side Opponent : IMTIAZ ALI KHAN
S. 11, O. VII, Rr. 1(g) & 8---constructive res judicata---Failure of a party to ask for all relief to which he was entitled---Effect---Such
relief, even if available and not asked for, could not be claimed by filing a subsequent legal proceedings as same would fall within
mischief of constructive res judicata---Illustration.

Side Appellant : GHULAM AKBAR LANG
Side Opponent : DEWAN ASHIQ HUSSAIN BUKHARI
Art. 199---Civil Procedure Code (V of 1908), S. 11---Constitutional petition---Res judicata, principle of---Applicability---If High
Court has already recorded finding on any issue raised which is again raised in subsequent proceedings and finding of High Court in
earlier constitutional petition were not set aside, the subsequent petition on the same issue would be barred on the principle of
constructive res judicata.
Citation Name : 2012 PLC(CS) 218 SUPREME-COURT

Side Appellant : STATE BANK OF PAKISTAN through Governor
Side Opponent : IMTIAZ ALI KHAN
S. 11 & O. VII, Rr. 1(g), 8---Failure of a party to ask for all relief to which he was entitled---Effect---Such relief, even if available and
not asked for, could not be claimed by filing a subsequent legal proceedings as same would fall' within mischief of constructive res
judicata---Illustration.

Side Appellant : FECTO BELARUS TRACTOR LTD.
Side Opponent : GOVERNMENT OF PAKISTAN through Finance Economic Affairs
---Ss. 33 & 19---Sales Tax Act (VII of 1990), S. 66---Civil Procedure Code (V of 1908), S. 11---Refund of sales tax and customs
duty--constructive res judicata, principle of---Applicability---No order had been passed for the refund of tax and duty---Relief
regarding exemption from customs duty and sales tax had been given to the petitioner in view of the letter by the Government to be a
notification, issued under S.19 of the Customs Act, 1969---Supreme Court had not dilated upon the question of refund of Customs
duty and sales tax on taking into consideration whether the burden of the Customs duty and sales tax had been passed on to the
customers or not---Question relating to passing on the burden by the petitioner was never agitated by either of the parties before the
Supreme Court as well as before the High Court---Query by the Central Board of Revenue from the petitioner," whether burden of
sales tax had been passed on to the actual consumer of goods or not" was not barred under the principle of constructive res judicata in
circumstances.

---S. 11---constructive res-judicata--- Principles enumerated.

duty--constructive res judicata, principle of---Applicability---No order had been passed for the refund of tax and duty---Relief
duty and sales tax on taking into consideration whether the burden of the Customs duty and sales tax had been passed on to the
circumstances.
Citation Name : 2005 PTD 2286 SUPREME-COURT

Side Opponent : GOVERNMENT OF PAKISTAN
duty---constructive res judicata, principle of---Applicability---No order had been passed for the refund of tax and duty---Relief
"duty and sales tax on taking into consideration whether the burden of the Customs duty and sales tax had been passed on to the
circumstances.

Side Appellant : KHUSHI MUHAMMAD
Side Opponent : PROVINCE OF THE PUNJAB
Code of Civil Procedure 1908 S.11 --- Res judicata, Principle of --- constructive res judicata. --- Contention was that many of the
questions pursuant to the issue involved we're not raised during the previous litigation, and therefore, could freely be re-agitated ---
Validity--- Even if there were some questions, each one of the same ought to have been raised in the previous adjudication and. in the
event any of them was not raised, such omission attracted the principle of constructive res judicata.

Side Appellant : AMANUL MULK
Side Opponent : GHAFOOR-UR-REHMAN
Code of Civil Procedure 1908 ----S. 11, Expln. IV---constructive res judicata, doctrine of---Object and purpose---Rationale behind the
constructive res judieata is that if the parties have had an opportunity of asserting all grounds in support of their claim or defence in a
former suit and have not done so, they shall be deemed to have raised such grounds in the former suit and it shall be further deemed
that these grounds had been heard and decided as if these matters had been actually in issue---Such parties, as such, shall be precluded
from raising these grounds in a subsequent suit---Such matters will by virtue of said legal fiction, be construed to be res judicata.

Side Appellant : TANK STEEL AND RE-ROLLING MILLS (PVT.) LTD.
Side Opponent : FEDERATION OF PAKISTAN
Code of Civil Procedure 1908 ---- S.11 --- Banking Tribunals Ordinance (LVIII of 1984), S.9 --- Constitution of Pakistan (1973), Art.
199 --- Principle of constructive resjudicata-- Applicability --- Appellate Court (Division Bench of High Court) which had disposed of
appeal was competent to have resolved factual as well as legal and Constitutional controversies which had been agitated subsequently
before High Court in Constitutional petition --- Petitioners having omitted to peruse appeal to its logical conclusion on any premise
before Supreme Court were debarred to agitate same controversy over again on principle of constructive resjudicata.---[Resjudicata].

Side Appellant : DILAWAR KHAN
Side Opponent : GHULAM NABI
Code of Civil Procedure 1908 ----S. 11 & O. II, R. 2---Constitution of Pakistan (1973), Art. 185(3)---Plaintiffs'suit for declaration and
permanent injunction to the effect that they were co-owners of property in question was dismissed throughout up to revision by High
Court on the ground that suit was barred by constructive res judicata as also by the provisions of O.II, R.2, Civil Procedure Code,
1908---Leave to appeal--Plaintiff could not show that previous cases/decisions with regard to property in question could not operate as
res judicata---Question of constructive res judicata even if looked at from plaintiffs'point of view, petition for leave to appeal would
not succeed on that hypothesis either---Questions raised in the litigation having been raised and decided previously, present litigation
would be barred by res judicata, and if subject-matter of present litigation could not be brought within the net of previous litigation,
O.II, R.2, Civil Procedure Code would be a bar--Looked at from whatever angle, petition for leave to appeal was not maintainable---
Leave to appeal was thus refused in circumstances.

Side Appellant : ADALAT KHAN
Side Opponent : BEGUM BIBI
Code of Civil Procedure 1908 ----S. 11---Bar of res judicata---Applicability---Issue relating to appellant being the son of deceased and
being entitled to inherit her property, although was tried but was not finally decided---Question of bar of constructive res judicata,
would not arise, for in previous suit appellant had submitted written-statement alleging therein that he was the son of deceased and
was also entitled to inherit her property---Court having framed incorrect issue in that case same was not finally determined---
Appellant's present suit as heir of deceased seeking his share in her estate was thus, not barred by res judicata.

Side Appellant : NIZAM SHAH
Side Opponent : BABU ABDULLAH
Code of Civil Procedure 1908 ----S. 11 & O. II, R.2---Constitution of Pakistan (1973), Art. 185(3)---Res judicata---Petitioner in earlier
round had lost his case regarding land in dispute when his Constitutional petition was dismissed and decision in that petition acted as
constructive res judicata---Subsequent proceedings would also appear to be incompetent by virtue of Order II, R. 2, C.P.C.---Courts
below had already decided matter against petitioner---No merit in petition for leave to appeal existing---Petition was dismissed.

Side Appellant : SHER AHMED
Side Opponent : MUHAMMAD ABDULLAH
---S.42---West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S. 13--Civil Procedure Code (V of 1908), S.11---Petitioner's
suit for declaration that he was owner in possession of house in dispute and for injunction to restrain respondents from interfering with
his possession on basis of agreement to sell having been executed by previous owner, was dismissed, as also his appeal and revision---
Respondents' eviction petition against petitioner had succeeded right uptil the High Court---In eviction petition, present petitioner
claimed to be the landlord, which plea was not accepted---Petitioner, desired that he should be treated as owner in possession of house
in question---Petitioner could not be treated as owner, because earlier decision of High Court in ejectment petition would bar re-
opening of said issue later on in any other forum, where general or special principles of constructive res judicata would apply---
Finding of High Court on issue of ownership was thus right.

Side Appellant : ASHFAQ-UR-RAHMAN
Side Opponent : MUHAMMAD AFZAL
Ss. 13(6) & 17-Rent Controller cannot direct tenant to deposit time-barred rent-Expression "all rent due" is to be construed within
limited intent of Ordinance-Recovery of rent not primary object-Tenant cannot be deprived of his legal defence on score of limitation-
Rent found due to be paid to landlord and in default order of payment may be executed by Civil Court under S. 17-Proposition that
time-barred rent is rent due though not enforceable in action at law not attracted to proceedings under S. 13(6)-"Due" equivalent to
"due in law Proceedings before Rent Controller "closely akin to action at law"-No evidence of Legislature's intention to include time-
barred rent in order of deposit discoverable from Ordinance-Civil Procedure Code (V of 1908), S. I1-Suit for recovery of rent
dismissed as time-barred-Landlord would be denied relief under S. 13(6) of Ordinance on principle of constructive res
judicata[Ashfaq-ur-Rahman v. Muhammad Afzal P L D 1965 Lah. 59 reversed].

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Citation Name : 2023 PLD 18 QUETTA-HIGH-COURT-BALOCHISTAN

Side Appellant : SAADAT KHAN
Side Opponent : ALI SHER
S. 11---Res-judicata, principle of---Object and purpose---Doctrine of res-judicata generally came into play in relation to civil suits---
Said doctrine has been applied since long in various kinds of other proceedings and situations by the superior courts---Rule of
constructive res-judicata is engrafted in Explanation IV of S. 11 of the C.P.C. and in many different situations also the principles not
only of direct res-judicata but of constructive res-judicata are also applied---If by any judgement or order any matter in issue has been
directly and explicitly decided, the decision operates as res-judicata and bars the trial of an identical issue in subsequent proceedings
between the same parties ---Principle of res-judicata comes into play when by judgment/order a decision of a particular issue was
implicit in it; that is, it must be deemed to have been necessarily decided by implication, even then the principle of res-judicata on that
issue is directly applicable---When any matter which might and ought to have been made a ground of defence or attack in former
proceedings but was not made ,then such a matter in the eye of law, to avoid multiplicity of litigation and to bring finality in it, is
deemed to have been constructively in issue and, therefore, is taken as decided---Object and purpose of the principle of res-judicata is
to uphold the rule of conclusiveness of judgment, as to the points decided earlier of the fact, or law, or of fact and law, in every
subsequent suit between the same parties ---Once the matter, which was the subject matter of lis, stood determined by a competent
Court, no party after that could be permitted to reopen it in subsequent litigation---Rule of res-judicata is brought into the statute book
to bring the litigation to an end so that the other side may not be subjected to harassment---Once a substantial question in dispute
between the parties stands decided, once a verdict qua title of party stands given by a court of competent jurisdiction and once a
precious right stands accrued to the opposite party, the plaintiff can not file a second suit---In the present case the petitioner filed suit
in respect of the same property, which had already been claimed by the petitioner in another civil suit---Property claimed by the
petitioner in the previous suit and in present case and the parties and cause of action were the same---Civil revision was dismissed due
to the plaint being found to be barred by law, attracting the principle of res-judicata as well as estoppel by conduct.
Citation Name : 2021 CLC 2094 PESHAWAR-HIGH-COURT

Side Appellant : INAMULLAH
Side Opponent : BAKHT ZAMIN KHAN
Paras 3 & 4---Civil Procedure Code (V of 1908), S. 11 & O.II, R.1 & 2---Petitioners being successors-in-interest of deceased (died in
1936) who was brother of predecessor-in-interest of defendants, contended that they had been deprived from their rights in the legacy
of said deceased---Suit claiming right of 'inheritance'---Decreed by Trial Court---Reversed by Appellate Court---Earlier suit by
petitioners filed under Provincially Administered Tribal Areas Civil Procedure (Special Provisions) Regulation, 1975 (PATA
Regulation) which was dismissed on ground of limitation till the last forum of Home Secretary, had been instituted on the basis of a
'will' of 1932---Writ petition withdrawn with permission to have recourse to the civil Court---Fresh suit on different cause of action---
Respondents referred to Riwaj Nama Swat---Validity---Pedigree table showed original predecessor of parties who had been survived
by two sons: 'A' being predecessor of respondents / defendants, and 'B' being predecessor of petitioners/plaintiff---Said table not
showing any issues or widow of 'B'---Said table had been prepared during the course of settlement in 1985/86---Relationship of two
daughters and one widow had been admitted---Reason for their omission from pedigree table could not be explained by defendants---
Petitioners had been litigating for their rights before forums established under PATA Regulation---No law/rules/regulations/customs
and traditions having the sours of law depriving female legal heirs from right of inheritance---Two daughters and a widow of 'B' had
been deprived of their right of inheritance---Appellate Court allowed appeal on technical objection of bar of constructive res-judicata
and limitation---Time period for bringing a suit in respect of a property where the same had been in possession of other was settled as
15 years---Principle of custom had been akin to the phenomena of adverse possession, but it had nowhere been stated that such a
principle would also apply to the cases of inheritance---Such principle was not applicable to person exempted who would pay any
share in produce or having other charge---Such exempted case had to be settled according to Sharia/Jirga decision---Home Secretary
had levied a maintenance allowance of Rs. 400/- per annum on respondents and in favour of petitioners along with arrears---Liability
had been fixed due to the petitioners' rights in property which had been in possession of defendants---Principle of bar of limitation in
cases of adverse possession contained in Riwaj Nama Swat, would not apply---Predecessor of petitioners had claimed before Assistant
Commissioner under PATA Regulation but that had been based on 'will' of 1932 and the same was found to be time barred and had
not been referred to Jirga for its factual adjudication---Present suit was on basis of right of inheritance which could not be barred by
invoking the principle of res-judicata/constructive res-judicata---PATA Regulations provided that provisions of Evidence Act, 1872
(Qanun-e-Shahadat, 1984) and Civil Procedure Code particularly Order II thereof had not been applicable to suits filed before
adjudication forums established under said Regulation---Whatever property had been sold by 'A' deceased or his legal heirs had to be
adjusted in their respective shares of inheritance and the vendees thereof should not be disturbed---High Court accepted the Revision
petition by setting aside judgment of Appellate Court and further modified judgment/decree of Civil Court.
Citation Name : 2020 MLD 809 KARACHI-HIGH-COURT-SINDH

Side Appellant : MUHAMMAD ASLAM
Side Opponent : PROVINCE OF SINDH through Secretary, Government of Sindh Revenue Department, Karachi
S. 11--- Res judicata, principle of--- Applicability--- Scope---Contention of plaintiff, in suit for declaration and permanent injunction,
was that he was owner in possession of the suit property---Suit was decreed concurrently---Validity---Preconditions attracting the
provisions of S.11, C.P.C. were that parties and issues in the previous and subsequent suit should be the same litigating under the same
title---parties in the previous suit and in the present suit were not the same and issues to be determined were also different ---Reliefs
sought in both the suits were different ---Mandatory preconditions for attracting the principle of res judicata were not available in the
present case---Principle of re judicata was not applicable, in circumstances---Both the Courts below had exhaustively dealt with each
and every issue and assigned cogent reasons for their findings---Defendant had failed to point out any defect in the impugned
judgments and decrees passed by the Courts below---Courts below had neither assumed jurisdiction nor had vested in them nor had
failed to exercise the jurisdiction vested in them by law---Defendant had no good case for interference into the findings recorded by
the Courts below---Revision was dismissed, in circumstances.
Citation Name : 2016 YLR 89 PESHAWAR-HIGH-COURT

Side Appellant : SHAH RASOOL
Side Opponent : Maulana GHULAM RAHIM
S. 11 & O. XXIII, R. 3---Withdrawal and adjustment of suit on basis of compromise---Consent decree, non-compliance of---
Remedy---Res judicata principle of---Applicability---Suit filed by plaintiff---During pendency of suit defendant filed application for
dismissal of the suit under O. XXIII, R. 3, C.P.C.---Trial Court accepting said application dismissed the suit on plea of res judicata---
Contentions raised by plaintiff were that provision of Order XXIII, R. 3, C.P.C. were not applicable to the present suit as earlier suit
had been withdrawn on basis of compromise and the same had not been decided on merit and that both suits were filed on different
causes of action---Validity---Earlier suit was dismissed as withdrawn on basis of compromise effected between the parties ---Decree
was passed on basis of compromise, and non-compliance thereof, provided fresh cause of action to plaintiff to file fresh suit---
Principle of res judicata was not attracted in circumstance of the present case---Withdrawal of earlier suit was not simple withdrawal,
as the decree was passed on basis of duly executed compromise between parties , and in that eventuality fresh suit was not barred---
Findings of Trial Court were not correct as the court had failed to appreciate legal perspective of the case---High Court accepting
appeal set aside order of Trial Court---Appeal was allowed in circumstances.
Citation Name : 2016 YLR 240 KARACHI-HIGH-COURT-SINDH
Side Appellant : MUHAMMAD MUQEEM SOHAIL BUILDERS AND DEVELOPERS
Side Opponent : SHAMSHER ALI
O. VII, R. 11 & S. 11----Specific Relief Act (I of 1877), Ss. 42, 39, 54 & 55---Partnership Act (IX of 1932), S. 40---Contract Act (IX
of 1872), S. 202---Constitutional petition---Res judicata---Applicability---Rejection of plaint---Cause of action---Determination---
Dissolution of partnership on death of partner---General power-of-authority in favour of partner---Revocability--Plaintiff filed suit for
declaration, dissolution of partnership, cancellation of sale deeds, injunction, partition of property and restoration of property, against
defendant claiming that a partnership agreement was entered between parties , and defendant being managing partner of firm,
purchased suit property in name of the firm and revenue entries were made accordingly, but he subsequently by executing illegal sale
deeds in his personal capacity disposed off the same without permission of the firm---Defendant sought rejection of plaint of suit
under O. VII, R. 11, C.P.C., contending that partnership had already been dissolved and plaintiffs had no title in suit property---Both
Trial Court and revisional court dismissed defendant's application for rejection of plaint---Contentions raised by defendant were that
plaintiff had filed the suit on basis of general power of attorney which had lost its authenticity after death of its executants/other
partners; that plaintiff did not file any fresh power of attorney, and that plaint disclosed no cause of action as previous suits filed by
plaintiffs were dismissed---Plaintiff took the plea that he had filed suit as attorney of other co-sharers/plaintiffs, and his power of
attorney was coupled with interest which was protected under S. 202 of Contract Act, 1872, and that previous suit were not decided on
merits and reliefs sought in earlier suits and the present suit were different ---Validity---Plaintiff had alleged in the plaint that
defendant had committed fraud in collusion with revenue authorities and prepared stamp paper regarding dissolution of partnership
deed---As per available evidence, stamp vendor who had issued said stamp paper was not registered---Plaintiff's claim of joint
ownership over suit property was still unresolved and subjudice before Trial Court---Parnternship, prima facie, existed until it was
determined by court---Factum of existence of partnership deed had created cause of action to plaintiffs---Irrevocable general power-
of-attorney executed in favour of plaintiff having never been challenged or revoked by legal heirs of deceased partner, being authority
coupled with interest in favour of attorney regarding suit property, was still in existence and valid---Earlier suits filed by plaintiff were
not finally decided on merits and their plaints were rejected being barred under the law---Provisions of S. 11, C.P.C. nor principle of
res judicata were attracted to the present suit---Suit filed by plaintiff was not barred by non-filing of fresh power-of-attorney by legal
heirs, as in case some of the executants of power of attorney had expired during pendency of proceedings, authorization on behalf of
remaining executants would continue to remain in force---Defendant failed to point out any illegality or material irregularity
committed by courts below while dismissing application under O. VII, R. 11, C.P.C.---Constitutional petition was dismissed in
circumstance.
Citation Name : 2015 CLC 1127 LAHORE-HIGH-COURT-LAHORE
Side Appellant : RASHEED AHMAD KHAN
Side Opponent : MUHAMMAD ASHRAF
S. 11, O. II, R. 2 & O. XVII, R. 3----Constructive res judicata, applicability of---Frame of suit---Relinquishment of claim---Dismissal
in default---Appellate court non-suited petitioners on the ground that petitioner had earlier filed a suit regarding residential property
left by predecessor-in-interest of parties in which they had not included agricultural property which was subject matter of present suit;
and petitioners had relinquished their right to the extent of said agricultural property under S.11 and O.II, R.2, C.P.C. and the same
could not be agitated in the present suit---Pleas raised by petitioners were that the earlier suit had not been decided on merits and
dismissed under O.XVII, R.3, C.P.C., and in said suit parties had sought partition of the residential property on basis of family
settlement, but in the present suit petitioners had challenged entries of inheritance mutation in revenue record---Validity---When
earlier suit was filed, predecessor-in-interest of petitioners was not owner of agricultural land for purpose of any further transaction
and he became owner thereof by operation of law and was not entitled to make the agricultural land subject matter of the earlier suit
unless revenue entries were corrected---Claim of petitioners in earlier suit was entirely different ---Findings of appellate court were
contrary to record and law and the same were not sustainable in law---Appellate court had wrongly held that principle of res judicata
was applicable---In case of any dispute regarding residential property, jurisdiction was vested with civil court, whereas in case of
agricultural land, parties approach the Revenue Courts/authorities, and the ground of relinquishment of claim had no force.
Citation Name : 2015 PLD 445 LAHORE-HIGH-COURT-LAHORE

Side Appellant : MUHAMMAD BAKHSH (DECEASED)
Side Opponent : AMANULLAH (DECEASED)
S. 42---Civil Procedure Code (V of 1908), S.11---Suit for declaration---Res judicata, principle of---Applicability---Judicial dignity,
doctrine of---Scope---Suit was decreed by the Trial Court but same was dismissed by the Appellate Court while applying the principle
of res judicata---Validity---Defendants remained associated with all the previous proceedings with the plaintiffs claiming interest in
the suit property---Defendant was one of the plaintiffs in the earlier round of litigation---Principle of res judicata was applicable not
only between the parties on opposite side but also between the parties on the same side i.e. co-plaintiffs and co-defendants---Ultimate
decision of the matter had to be looked into to determine whether principle of res judicata was applicable---Conflict of interest was
most important and vital ingredient to apply principle of res judicata---Matter directly and subsequently in both the suits was
distinct---Entitlement of defendants was different but relief sought for was one and the same and there was no conflict of interest
between the parties ---Principle of res judicata was not attracted in the present case---Bald statement would not be sufficient to prove
the stance taken by the party---Eligibility and entitlement of plaintiffs had already been decided finally---Doctrine of "judicial dignity"
was another ground to non-suit the plaintiffs---Revision was dismissed in circumstances.
Side Appellant : ABDUL HAMEED
Side Opponent : SARDARAZ KHAN
S. 11---Res-judicata, principle of---Applicability---Conditions---Essential condition to establish the plea of res judicata would be that
the matter in issue and material points in dispute between the parties in the earlier litigation were directly and substantially in issue in
the subsequent litigation---If matter in issue in the subsequent litigation was not substantially decided in the earlier litigation then it
would not be res judicata actually or constructively---Principles of res judicata were not applicable where the subject matter in the
previous and subsequent proceedings was different .

Side Appellant : MUHAMMAD AZAM KHAN
Side Opponent : FAZAL-UR-REHMAN
O. II, R. 2 & S.11---Specific Relief Act (I of 1877) Ss. 42 & 54---Every suit shall include the whole of the claim which the plaintiff is
entitled to make in respect of the cause of action---Scope---Suit for declaration in relation to revenue record entries---Application of
the defendant for dismissal of suit on ground that a similar suit on the same cause of action and between the same parties was pending,
therefore, the suit was hit by principle of res judicata as well as hit by O. II, R. 2, C.P.C.---Validity---Present suit was instituted on the
ground of wrong entries in Revenue Record, which were pointed out during the course of the proceedings of the previous suit, which
was a suit for permanent injunction, relating to the same land, and which came out while recording the statement of the patwari halqa,
therefore, present suit could not be hit by the principle of res judicata or by provisions of O. II, R. 2 C.P.C.---Subsequent suit could not
be dismissed on the ground which were filed subsequently and having different cause of action and in which different relief had been
sought---No illegality existed in orders of courts below---Revision was dismissed.

Side Appellant : MUHAMMAD ANWAR
Side Opponent : FEDERATION OF PAKISTAN through Secretary Establishment Division
R. 15---Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order (P.O. 1 of 1983), Art. 32---Constitution of Pakistan, Art.
199---Civil Procedure Code (V of 1908), S. 11---Constitutional petition---Res judicata, principle of---Applicability---different
reliefs---Judgment per incuriam---Appellants were successful in competitive examination but were dissatisfied with the group
allocated to them---Constitutional petition and intra-court appeal were concurrently dismissed by High Court on the ground of being
barred under principle of res judicata---Validity---Causes of action in both Constitutional petitions were entirely different , therefore,
High Court erred in law to dismiss petition on the principle of res judicata---High Court upheld the order of Judge in Chambers of
High Court without adverting to prayer clauses of constitutional petitions---Judgment passed by Division Bench of High Court was
judgment per incuriam as evident from prayer clause of constitutional petitions---Appellants challenged vires of the order of Wafaqi
Mohtasib in second round of litigation which was passed on their complaint and also order of President which was passed on their
representation, whereas in earlier round of litigation appellants had challenged vires of recommendations of Public Service
Commission---Counsel of parties did not bring into notice of. Division Bench of High Court the controversy arising in two rounds of
litigation---Judgment passed by Division Bench of High Court was not in consonance with law laid down by Supreme Court in
various judgments---Supreme Court set aside the judgment passed by Division Bench of High Court and remanded the matter to High
Court for decision of intro court appeal afresh---Appeal was allowed.

Side Appellant : MUHAMMAD AKRAM
Side Opponent : ADDITIONAL DISTRICT JUDGE
S. 11---Res judicata, principle of---Applicability---Important ingredients---Cause of action---Scope---Provisions of S.11 C.P.C. in
relation to cause of action of suit codifies doctrine of res judicata, which operates when there is a judgment between the same parties
and it prevents fresh suit between them regarding the same matter---Application of principle inter se earlier and fresh litigation cannot
be applied indiscriminately without regard to conditions precedent as laid down in S.11, C.P.C.---Matter is not hit by principle of res
judicata only because of similarity of subject matter, commonality of parties and determination of dispute through judgment and
decree---One of the most important ingredients of res judicata is commonality of cause of action as well---If in subsequent suit
plaintiffs have fresh cause of action or cause of action different from the one tried earlier; the same does not bar as res judicata
because of the judgment in an earlier suit on the same subject.
Citation Name : 2006 YLR 1797 LAHORE-HIGH-COURT-LAHORE

Side Appellant : SALEHON MUHAMMAD
Side Opponent : Mst. SABRAN BIBI
---S.8---Civil Procedure Code (V of 1908), S.11---Suit for possession---Res judicata---Plaintiff had filed suit for possession on basis of
sale-deed---Defendant took the plea that the plaintiff had filed two suits for possession of the same house, which were dismissed by
the competent Courts and thus the fresh suit could not proceed---Trial Court framed preliminary issue, after receiving documentary
evidence and decided the issue against the defendant---Appellate Court accepted the appeal and dismissed the suit---Validity---In the
earlier suits Khasra No. in the sale-deed was incorrectly recorded---Plaintiff was directed to get it corrected---Plaintiff after getting
necessary correction from the competent authority had filed the suit which gave him fresh cause of action---parties in the previous
suits were different ---Suits were not heard and finally decided by the Courts in the previous litigation---Conclusion of the Court in the
previous judgment was that the suit for possession was not maintainable on account of error in the sale-deed---Section 11 of C.P. C.
had no applicability in the present suit---Findings of the Appellate Court were misconceived and misdirected and same were set aside
in circumstances and that of trial Court stood restored.

Side Appellant : JUNAID RASHEED
Side Opponent : SULTAN MUHAMMAD
Code of Civil Procedure 1908 S.11-Res judicata, principles of---Applicability---Dispute relating to title, of property---Appellants were
in possession of the properties since long---Real dispute between the parties related to the title/ownership of the property---Such
dispute could not be decided on the basis of different decisions taken under West Pakistan Urban Rent Restriction Ordinance, 1959 as
dispute relating to the title of the property could not be decided in rent proceedings or in appeals emanating therefrom---Principles of -
res judicata, therefore, were not at all attracted in the case of dispute relating to title/ownership of property.
Citation Name : 1996 MLD 265 LAHORE-HIGH-COURT-LAHORE

Side Appellant : MANZOOR AHMAD
Side Opponent : FACTO (PAKISTAN) LTD.
----S.12---West Pakistan Urban Rent Restriction Ordinance (VI of 1959), Ss.13 & 16---Civil Procedure Code (V of 1908), Ss.9, 11 &
151---Consolidation of civil suit and application for ejectment of tenant---Validity---Civil suit has to be decided by Civil Court in
accordance with provisions of Civil Procedure Code, 1908, while ejectment application is to be decided by Rent Controller, a persona
designata, under the provisions of West Pakistan Urban Rent Restriction Ordinance, 1959---Two jurisdictions are entirely different ---
Rent Controller exercising quasi-judicial jurisdiction is free to evolve his own procedure for deciding application for ejectment and he
is not bound to follow provisions of Civil Procedure Code except those relating to summoning of witnesses and compelling production
of evidence---Rent Controller would not be a Court while exercising powers of summoning and enforcing attendance of witnesses and
compelling production of evidence---Pleadings and issues in both suits being different ought to be decided independently after
recording evidence in the two cases separately---Rent Controller being persona designata and not a Court within meaning of law, he
could not invoke provisions of 5.151, C.P.C. regarding inherent powers of Court---Civil Court while deciding civil suit could not
reach out to proceedings of a persona designata exercising jurisdiction under a different statute---Consolidation of civil suit and
application for ejectment of tenant (although pending before Civil Court and Rent Controller which powers vested in the same
Presiding Officer and parties being the same) was not legally warranted---Order of consolidation was set aside for being passed
illegaliy and with material irregularity---Two matters i.e. civil suit and ejectment application would be separately and independently
decided by competent forums in accordance with law---Objection that ejectment application was barred by application of principles of
res judicata could properly be raised before Rent Controller who would consider the same and decide it in accordance with law.

Side Appellant : MUHAMMAD KHAN
Side Opponent : AKBARI
Civil Procedure Code (V of 1908), S.11---Constructive res judicate---parties had been litigating almost for three decades and plaintiff-
petitioner had remained unsuccessful right up to Supreme Court---On first round of litigation, petitioner had been raising various pleas
available to him before different forums and at no stage their validity had been accepted---Grounds raised at later stage in revision,
were always available to petitioner and he could press them into service, but he failed to do so---If petitioner had omitted to press such
pleas, he could not make use of same at later stage because principle of constructive res judicata would operate against him--After
finalization of controversy at highest level no justification was available for petitioner to reagitate same question before Trial Court,
lower Appellate Court and finally before High Court---Petitioner having been repudiating clear findings of High Court and Supreme
Court, he and his counsel all were guilty of contempt of Court and they could be proceeded against accordingly if respondents would
make a move to that effect.

Side Appellant : EVACUEE TRUST PROPERTY BOARD, LAHORE
Side Opponent : ABDUS SALEEM
Code of Civil Procedure 1908 S. 11---Res judicata--Where parties were different and appeal had, abated without a decision on merits,
such decision would not operate as res judicata.

Side Appellant : LAL
Side Opponent : MUHAMMAD BIBI
Code of Civil Procedure 1908 S. 11---Res judicata, principles of---Conditions precedent for the application--Principles of res judicata
are however not applicable where the subject-matter of litigation between the parties in previously instituted suit and suit under
adjudication is entirely different .
Side Appellant : SABIR HUSSAIN
Side Opponent : AFRASAYYAB
Code of Civil Procedure 1908 S. 11--Res judicata, principle of--Plea of defendants that deceased Muslim was a Shia not taken in
previous suit under custom--Such plea could be taken in inheritance suit because cause of action available in present suit was not
available to defendants in the previous suit--parties in the previous suit were litigating on a cause of action/title entirely different from
the one in dispute in present suit-Principle of res judicata was thus not applicable in the present suit.

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Citation Name : 2021 CLC 553 KARACHI-HIGH-COURT-SINDH

Side Appellant : MUHAMMAD USMAN SIDDIQUI
Side Opponent : MUKARAM ALAM SIDDIQUI
S.42---Civil Procedure Code (V of 1908), Ss.11 & 47---Suit for declaration---Un-registered gift deed---Res judicata---Applicability---
Scope---Questions to be determined by the Court executing decree---Scope---Plaintiff, after failing in a suit for partition, claimed that
the disputed property was gifted to him by his late mother---Single Judge of High Court dismissed the suit under O.VII, R.11,
C.P.C.---Validity---Donor during her lifetime had not appeared before the authorities for mutation neither had the plaintiff made any
effort to get the property mutated in his name---Judgment and decree in the suit for partition was in field, subsequently the suit
property was put for auction and reportedly the bids had been received---Another suit regarding the same property between the same
parties could not be entertained under the doctrine of res judicata---Whatever the grievance of the plaintiff was regarding the suit
property, it could only be addressed by the Executing Court as per the provisions of S.47 of C.P.C.---Appeal was dismissed.
Side Appellant : HUSSAIN BAKHSH
Side Opponent : Mst. RAZIA BIBI
S.42---Civil Procedure Code (V of 1908), S.11---Multiple mutation s Petitioner challenged first mutation in earlier suit which was
dismissed----Res-judicata, principle of---Applicability---Every fresh entry in the revenue record gave rise to fresh cause of action to
the aggrieved party, mutation in question being a subsequent entry gave rise to a fresh cause of action----Trial Court decided issue
against the petitioner but the appellate Court reversed the same which findings had not been challenged---Issue decided against a
party, if not challenged, attained finality.

Side Appellant : AHMAD DIN
Side Opponent : KHUSHI MUHAMMAD
S. 11 & O. VII, R. 11 & O. II, R. 2---Suit for declaration and permanent injunction---Res judicata, principle of---Applicability---Trial
Court rejected plaint under O. VII, R. 11, C.P.C.---Validity---Earlier suit with regard to impugned mutation had already been decided
finally---Courts below had rightly concluded that fresh suit with regard to same subject matter which had already been decided was
barred under S. 11, C.P.C.---Relief which had been omitted in the earlier suit could not be enforced through subsequent suit as second
suit was not competent and barred under O. II, R. 2, C.P.C.---When plaint was barred by any law then same should be rejected---
Principle of res judicata was attracted in the case---No illegality or irregularity had been committed by the Courts below while passing
the impugned judgments and decrees---Revision was dismissed, in circumstances.
Citation Name : 2017 CLCN 190 LAHORE-HIGH-COURT-LAHORE

Side Appellant : ASIF KNITWEAR (PRIVATE) LIMITED
Side Opponent : FARKHANDA ANWAR
Ss. 11, 144, 151, O. XXI, Rr. 97, 98, 99, 100, 101, 102 & 103---Execution of decree---Objection, decision of---Past and closed
transaction---Principle of res judicata, applicability---Judgment debtor did not question compromise effected between parties and
consent decree in any manner---During execution of decree, judgment debtor filed objections under O. XXI, Rr. 97 to 103, C.P.C., on
the ground that decree holder committed a fraud and got sanctioned mutation in her name whereas he (judgment debtor) was lawful
owner in possession of property under execution---Validity---Judgment debtor could not be permitted to reopen the case which was
past and closed transaction---Principle of res judicata was applicable as judgment debtor was Chief Executive of company in question
and was precluded by law to challenge consent decree on the basis of compromise duly signed by him---High Court declined to
interfere in execution proceedings---Appeal was dismissed in circumstances.
Citation Name : 2017 CLC 1443 QUETTA-HIGH-COURT-BALOCHISTAN

Side Appellant : LAL MUHAMMAD
Side Opponent : Nawabzada ABDUL GHAYAS
S. 11---Correction of mutation s in revenue record---Earlier suit between the parties---Principle of res judicata---Applicability---
Record revealed that earlier suit was contested by the same parties on the same subject matter and petitioners had failed to challenge
mutation entries---Main issue regarding ownership and mutation entries having already been decided in the earlier suit, as such, the
second suit on the same subject-matter between the same parties was hit by the principle of res judicata as contemplated under S.11,
C.P.C.
Citation Name : 2017 CLCN 43 PESHAWAR-HIGH-COURT

Side Appellant : SAIF UR REHMAN
Side Opponent : MUHAMMAD SALEEM
S. 11, O. IX, Rr 8, 9 & O. VII, R. 11---Specific Relief Act (I of 1877), S. 42 & 54---Suit for declaration and permanent injunction---
Dismissal for non-prosecution--- Subsequent suit--- Res-judicata, principle of---Applicability---Rejection of plaint---Plaintiff filed suit
for declaration along with permanent injunction against defendant for mutation regarding suit property---Suit was dismissed for non-
prosecution---Plaintiff's application to restore suit after expiry of prescribed period of limitation, was dismissed being time barred---
Plaintiff instituted a fresh suit against same set of defendants regarding same suit property---Defendant filed an application for
rejection of plaint being hit by principle of res-judicata; which was allowed by Trial Court---Validity---When subsequent suit was
instituted on same cause of action and regarding same subject matter it would not be maintainable particularly when application for
restoration of previous suit had been dismissed by appropriate forums---Legislature had precluded plaintiff from bringing a fresh suit
when previous suit was dismissed under provisions of O. IX, R. 8, C.P.C.---Revision was dismissed in circumstances.

Side Appellant : RASHEED AHMAD KHAN
Side Opponent : MUHAMMAD ASHRAF
S. 11, O. II, R. 2 & O. XVII, R. 3----Constructive res judicata, applicability of---Frame of suit---Relinquishment of claim---Dismissal
in default---Appellate court non-suited petitioners on the ground that petitioner had earlier filed a suit regarding residential property
left by predecessor-in-interest of parties in which they had not included agricultural property which was subject matter of present suit;
and petitioners had relinquished their right to the extent of said agricultural property under S.11 and O.II, R.2, C.P.C. and the same
could not be agitated in the present suit---Pleas raised by petitioners were that the earlier suit had not been decided on merits and
dismissed under O.XVII, R.3, C.P.C., and in said suit parties had sought partition of the residential property on basis of family
settlement, but in the present suit petitioners had challenged entries of inheritance mutation in revenue record---Validity---When
earlier suit was filed, predecessor-in-interest of petitioners was not owner of agricultural land for purpose of any further transaction
and he became owner thereof by operation of law and was not entitled to make the agricultural land subject matter of the earlier suit
unless revenue entries were corrected---Claim of petitioners in earlier suit was entirely different---Findings of appellate court were
contrary to record and law and the same were not sustainable in law---Appellate court had wrongly held that principle of res judicata
was applicable---In case of any dispute regarding residential property, jurisdiction was vested with civil court, whereas in case of
agricultural land, parties approach the Revenue Courts/authorities, and the ground of relinquishment of claim had no force.
Citation Name : 2015 YLR 135 QUETTA-HIGH-COURT-BALOCHISTAN

Side Appellant : DUR MUHAMMAD
Side Opponent : KHUDA BAKHSH
S. 42---West Pakistan Land Revenue Act (XVII of 1967), S. 161---Civil Procedure Code (V of 1908), S.11---Suit for declaration---
Limitation---Consent order---Res judicata, principle of---Scope---Wrong entries were made in favour of plaintiff in the record of
settlement which were corrected on his statement---Plaintiff had not challenged order of Settlement Officer with regard to making
entries in favour of defendant which was consent order---Once a party had taken a position in the matter before the court of competent
jurisdiction then same could not be changed and deviated from such stance to adopt a fresh position on the same subject matter---
Matter had finally been decided by the Collector on the basis of consent given by the plaintiff---Defendant was owner of the suit
property---Initiation of fresh proceedings after considerable delay with regard to same subject matter and between the same parties
would hit by the principle of res judicata as earlier in the first round of litigation the question of ownership and possession had been
decided by the Settlement Officer and same could not be reopened afresh by any of the parties---Plaintiff was neither in possession of
the suit property nor mutation entries were recorded in his name---Present suit was barred by limitation and was not maintainable---
Plaint could not be treated as properly presented as long as proper court fee was not paid---Plaintiff had failed to prove his claim and
his suit was rightly dismissed by the courts below---No illegality or irregularity had been pointed out in the impugned judgments
passed by the courts below---Revision was dismissed in circumstances.
Citation Name : 2014 MLD 1192 LAHORE-HIGH-COURT-LAHORE

Side Appellant : BASHIR AHMAD
Side Opponent : DISTRICT OFFICER (REVENUE), NAROWAL
S. 11 & O. VII, R. 11---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Res judicata, principle of---Applicability---
Scope---Rejection of plaint without framing of issues---Effect---mutation was attested on the basis of decree passed by a competent
court of law and said decree was not challenged and had attained finality---Competent court passed a well reasoned decree and dispute
of inheritance was resolved---Doctrine of res judicata had universal application and same was based on principle of public policy that
one cause should not be tried for the second time and there must be an end of litigation---Subsequent suit could not be considered if it
was hit by the doctrine of res judicata which could be decided at any stage of proceedings---Present suit had been filed on oblique
motives which was hit by the principle of res judicata---Plaintiffs could not again agitate same matter which had already been
decided---Both the courts below had rightly rejected the plaint---Concurrent findings were neither arbitrary nor fanciful or perverse for
interference by the High Court---No illegality or material irregularity had been committed by the courts below---Revision was
dismissed in limine.

Side Appellant : ASKAR ALI
Side Opponent : GHULAM NABI
S.11---Res judicata---Applicability---Scope---Parties to earlier lis and the present suit were the same, the property was also the same---
mutation with regard to which earlier suit was decided upto High Court was also the same---Held, claim of the plaintiff, directly and
substantially was the same, that had been raised and decided---Principle of constructive res judicata was fully applicable to the
circumstances of the case.
Citation Name : 2012 CLC 360 PESHAWAR-HIGH-COURT

Side Appellant : Mst. BAKHT RANA
Side Opponent : MUHAMMAD ZUBAIR KHAN
Ss. 11, 12(2) & O. VII, Rr.10, 11(d)---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Inheritance mutation of deceased
attested in favour of his son by depriving his four daughters including plaintiff---Plaintiff's claim in the present suit for her share in
property left by her father after one of her sisters obtained decree in a similar prior suit, wherein plaintiff was a party---Plea of
defendant-brother that the. suit was barred by S.11, C.P.C., thus, its plaint was liable to be rejected as plaintiff was party to prior
suit---Application by plaintiff for converting her plaint into application' under S.12(2), C.P.C.-Dismissal of both such applications by
Trial Court---Revision petition filed by defendant dismissed by Re visional Court while converting the plaint into application under
S.12(2), C.P.C., with direction to Trial Court to determine firstly its forum of filing---Order of Trial Court returning application under
S.12(2), C.P.C., for its presentation before proper forum upheld by Appellate Court---Validity---Claim of plaintiff's sister in prior suit
was that she along with other sisters including plaintiff were entitled to their legal share in legacy of their father---Decree in prior suit
passed in favour of plaintiff's sister had declared the suit property as legacy of her father, which was to be succeeded by all legal heirs
including plaintiff---Decree in prior suit challenged by defendant-brother was upheld in appeal by Appellate Court and in revision by
High Court---Plaintiff was not justified to file present suit after passing of decree in prior suit, wherein rights of all legal heirs were
determined and declared---Plaintiff could have approached revenue authorities for enforcement of decree in prior suit by
acknowledging her legal rights---Decree in prior suit did not contain any adverse findings against plaintiff, thus, her present suit was
not hit by S.11, C.P.C. ---Plaintiff was not required to file application under S.12(2), C.P.C., to challenge decree in prior suit, which
acknowledged rights' of all legal heirs including her---Trial Court, even Appellate Court or Re visional Court was competent to pass
decree in prior suit in favour of all legal heirs including plaintiff as their relation with deceased was not disputed---Revisional Court
was not required to convert plaint into application under S.12(2), C.P,.C., by exercising suo motu powers---High Court set aside
impugned orders, restored original plaint and remanded case to Trial Court for its decision in accordance with law.

Side Appellant : Mst. FATIMA BIBI
Side Opponent : PROVINCE OF PUNJAB through District Officer Revenue, Gujrat
S. 2---Civil Procedure Code (V of 1908), S.11---Constitution of Pakistan, Art. 185(3)---Inheritance under Islamic Law---Death of "K"
in year 1940 leaving behind a widow, a son, four daughters and two daughters from pre-deceased wife---Sanctioning of inheritance
mutation in favour of only son (died issueless in year 1978) excluding all other legal heirs of deceased "K"---Supreme Court granted
leave to appeal to consider questions as to whether estate of "K" after enforcement of West Pakistan Muslim Personal Law (Shariat)
Application Act, 1962 should have been mutated in favour of all his legal heirs according to Islamic Law of Inheritance; whether
petitioner along with her three real sisters were also entitled to inherit 2/3rd share out of inheritance of their real brother, who died
issueless; and whether principle of res judicata had been wrongly applied in the present case in view of law laid down by Supreme
Court in case of Muhammad Saleem Ullah v. Additional District Judge, Gujranwala and others (PLD-2005-SC-511).

Side Appellant : SULTAN AHMAD
Side Opponent : Ch. MUHAMMAD IRSHAD
S. 42---Civil Procedure Code (V of 1908), Ss.11, 107(2), O. VII, R.11 & O.XXXIX, Rr.1, 2---Limitation Act (IX of 1908), Art.120---
Suit for declaration on the ground that alleged mutation and order of Deputy District Officer (Revenue) to reject application for
cancellation of the said mutation , was illegal and ineffective on the rights of the plaintiffs---Plaintiffs also filed an application under
O.XXXIX, Rr.1 & 2, C.P. C. for the grant of ad interim injunction---Defendants contested suit and also filed an application under O.
VII, R.11, C. P. C. ---Trial Court dismissed application of the plaintiffs for the grant of ad interim injunction---Appellate Court, on
appeal, instead of deciding the said matter, dismissed suit of the plaintiffs---Plaintiffs asserted that the Appellate Court had dismissed
the suit when the matter before it was a mere an appeal for grant of interim injunction---Validity---Section 107(2), C.P.C. provided
that the Appellate Court should have the same powers and should perform as nearly as might be the same duties as were conferred and
imposed by C.P.C. on account of original jurisdiction in respect of suits instituted therein and had entrusted powers of Trial Court
upon the Appellate Court---Provisions of S.11 of C.P.C. were also fully applicable in the present case---Both courts below had also
ignored the question of limitation as the plaintiffs had challenged mutation dated 3-12-1995 in the suit filed on 21-1-2008 which was
barred by limitation---Revision petition was dismissed by High Court.

Side Appellant : NAZAR
Side Opponent : MEMBER (JUDICIAL-II) BOR
S.42---Civil Procedure Code (V of 1908), S.11----Constitution of Pakistan (1973), Arts. 185(3), 189 & 201---Gift transaction---
Proof---Judgment of Supreme Court---Ground not raised---Effect---Petitioners assailed mutation of gift in favour of respondents, Civil
Court dismissed the suit and judgment passed by Civil Court was maintained upto the Supreme Court---During the proceedings before
Civil Court, petitioners also assailed the mutation of gift before revenue authorities---High Court, in exercise of Constitutional
jurisdiction, maintained the decision of Supreme Court, which was in favour of respondents---Validity---Decisions of Supreme Court
were binding and must be valid by all Courts and authorities---Courts should not allow a judgment of Supreme Court to be challenged
even on the ground which was not 'taken before Supreme Court---Civil Court or any other authority had no jurisdiction to entertain
any application or any civil suit regarding the subject-matter which had already been set at right by Supreme Court---Petitioners failed
to point out any illegality or infirmity in the judgment passed by High Court---Leave to appeal was refused.

Side Appellant : Dr. Syed ZULFIQAR ALI SHAH
Side Opponent : SENIOR MEMBER, BOARD OF REVENUE, PUNJAB, LAHORE
S. 11---Constitution of Pakistan (1973), Art.199---Constitutional petition---Constructive res judicata, principle of---Applicability---
Scope---Petitioner was alleged to be owner in possession of the disputed property, purchased from the rightful predecessor---mutation
of the disputed property could not be sanctioned in favour of the petitioner due to lack of credibility of the revenue staff and the
petitioner was considered as an encroacher---Petitioner filed constitutional petition in the year 1983 which was dismissed without
declaring petitioner as an owner of the disputed property---Petitioner filed applications in Revenue Department which also became
fruitless---Respondents controverted the stand taken by the petitioner and asserted that the constitutional petition was hit by principle
of constructive res judicata as earlier in the year 1983, the constitutional petition on the same issue had been decided by High Court---
Petitioner made running remarks about the earlier constitutional petition in the year 1983 but did not disclose the whole truth---
Substantial issue of ownership over the disputed property had been decided, the petitioner neither approached the High Court with
clean hands nor before the revenue authority, disclosing them about the factum of dismissal of the earlier constitutional petition---
Petitioner ought to have submitted all the grounds of his attack in the constitutional petition but the same having not been done,
petition was hit by principle of constructive res judicata---Constitutional petition was dismissed by High Court.

Side Appellant : GHULAM FATIMA
Side Opponent : GOVERNMENT OF PAKISTAN through Board of Revenue
----S. 11 & O. II, R.2---Res Judicata---Applicability---Predecessor of plaintiffs had lost his case regarding redemption of suit land in
1975---Plaintiffs in their suit for redemption did not deny that suit land had been mortgaged by their predecessor in 1900 with a non-
Muslim evacuee but their claim was that on transfer of suit land in the name of Central Government, their right of redemption was
acknowledged in terms of sections 13 and 19 of Limitation Act, 1908 hence mortgage was still subsisting and could have been
redeemed---Evidence led by plaintiffs proved the continuous possession of plaintiffs over the suit-land---Copy of earlier plaint was not
produced however copy of judgment passed in 1975 revealed that in the earlier suit by predecessor of plaintiffs it was held that
mortgage stood extinguished by afflux of time as the same was not got redeemed within prescribed period of sixty years by the
mortgagor---Plaint in the present suit was also based on the same mortgage, redemption of which was earlier found to have
foreclosed---Copy of mutation relating to foreclosure of rights of plaintiffs was also produced by defendants and in presence of said
document stance of plaintiffs could not be considered on their second suit---Record revealed that cause of action for redemption, as
claimed by plaintiffs through present suit, had accrued to them at the time of institution of earlier suit but they ' opted not to pray for it
and deliberately relinquished said part of their claim thus their subsequent suit was also barred by provisions of O.II, R.2, C.P.C.---
Since matter in issue in both the suits was substantially the same between the same parties and the Trial Court was competent to try
the first suit of plaintiffs provisions of S.11, C.P.C. were, therefore, rightly invoked by courts below.
Citation Name : 2007 PLD 174 KARACHI-HIGH-COURT-SINDH

Side Appellant : MANGER through Legal Heirs
Side Opponent : HASHIM through Legal Heirs
---S. 278---Civil Procedure Code (V of 1908), S.11---Suit for administration of property---Limitation---Res judicata, principles of---
Applicability---No limitation prescribed for filing administration suit---Neither principle of res judicata nor limitation, would apply to
suit for administration of property---Unless the properties were distributed between the hems in accordance with Sharia, no co-owner
could be deprived of inheriting his share of properties on those technicalities---No period of limitation was prescribed for filing an
administration suit---Possession of properties by one of the co-owners would not defeat the right of other co-owners, who in law,
could inherit their share in land in question---Possession of land being in the nature of trust, co-owner would not acquire the status of
owner by lapse of time---Co-owner in physical possession of the property could not acquire exclusive ownership on the ground of
limitation as for all times he would remain trustee of suit property---Question of limitation, either for the purpose of possession or
mutation s in circumstances would not come in the way to seek the relief---Cause of riling present suit was distinct besides the relief
sought in an earlier suit---Cause in earlier suit having distinct scope, same would not attract bar contained in S.11, C.P.C.

Side Appellant : MUHAMMAD BAKHSH
Side Opponent : ALLAH WASAYIA
---S. 11---Qanun-e-Shahadat (10 of 1984), Art.58---Limitation Act (IX of 1908), Art.120---Inheritance claim---Sale of land by
defendants (collaterals of deceased) after inheriting same---Decree in pre-emption suit in respect of such sale and sanctioning of
mutation on its basis in favour of pre-emptor---First suit by plaintiffs (other legal heirs of deceased) challenging inheritance mutation
in favour of defendants and such sale by them---Dismissal of first suit maintaining vendee's plea to be bona fide purchaser---Second
suit by plaintiffs after twelve years of dismissal of their first suit challenging inheritance mutation in favour of defendants and
mutation sanctioned in favour of pre-emptor on basis of pre-emption decree---Validity---Pre-emptor after getting decree in pre-
emption suit had stepped into shoes of vendee found to be bona fide purchaser in first suit filed by plaintiffs---Principle of S.11,
C.P.C., would squarely apply to second suit, which could not be protected on basis of rule that Court had to do substantial justice and
riot to protect illegal gains-Decree in first suit would not come within purview of Art.58 of Qanun-e-Shahadat, 1984 for not having
alleged to have been passed by Court not having jurisdiction or having obtained same by fraud or collusion---Until and unless decree
in pre-emption suit and decree in first suit filed by plaintiffs were got set aside or challenged, they could not, on rule of inheritance,
file second suit at their choice and time---Second suit having been filed beyond six years from inheritance mutation and sale in favour
of vendee by defendants, was barred by limitation, which could not be protected on the principle that in inheritance cases, there would
be no period of limitation---Second suit was dismissed in circumstances.

Side Appellant : SAFDAR ALI
Side Opponent : MUHAMMAD NAWAZ
---O. II, R. 2 & S. 11---Suit for declaration relating to mutation ---Dismissal of suit and appeal---Whether subsequent suit brought by
the plaintiffs was barred by 0. 11, R. 2, C.P.C.---Plaintiff, in the previous suit, admittedly, had challenged the validity of mutation in
question to the extent of land measuring 12 Marlas only---Plaintiffs did not assail the mutation to the extent of retraining land, which
was allegedly purchased by them through oral sale and also omitted to assert that shares of defendants were not correctly reflected in
said mutation although the said grounds were available to plaintiffs in previous suit, hence claim which was omitted and relinquished
by them in their previous suit was not only barred by 0.11, R.2 C.P.C. but was also hit by the principles of constructive res judicata
under Explanation IV of S.11, .C.P.C.---No misreading or non-reading of evidence was pointed out--Impugned judgment was
reasonable and did not call for any interference by the High Court.

Side Appellant : SAFDAR ALI
Side Opponent : MUHAMMAD NAWAZ
---S.11---Specific Relief Act (I of 1877), S.42---Land Reforms Regulation, 1972 (M.L.R. No.115), Para. 28---Suit for declaration that
specific rotation was illegal and void---Both suit and appeal were dismissed---Whether second suit challenging the same mutation was
hit by principles of res judicata---Contention was that in earlier round of litigation/controversy related to Martial Law Regulation
No.115 and the Civil Court had no jurisdiction to try the matter under M.L.R. No.115---Validity---On the bald assertion of the
plaintiffs which was not supported by any evidence, it could not be assumed that in previous litigation, controversy related to M.L.R.
No.115 and it was adjudicated upon by the Civil Court---Jurisdiction of Civil Court was invoked by plaintiffs themselves and after
having failed, it did not lie in their mouth to turn around and to say that the Civil Court had no jurisdiction.

Side Appellant : MUHAMMAD ZUBAIR and others
Side Opponent : MUHAMMAD SHARIF
---Ss. 2, 2-A [as added by West Pakistan Muslim Personal Law (Shariat) Application (Punjab Amendment) Ordinance (XIII of 1983)]
& 3---Civil Procedure Code (V of 1908), S.11---West Pakistan Land Revenue Act (XVII of 1967), Ss.42 & 163---Succession---
Supreme Court granted leave to appeal to consider questions, whether disputed mutation could be reviewed by Collector after 52
years, when question of absolute ownership of female limited owner had twice been determined in earlier rounds of litigation, which
had attained finality; whether in such circumstances the Courts in final round of litigation were obliged to follow the law laid down in
Abdul Ghafoor v. Muhammad Shafi PLD 1985 SC 407 and Mst. Farida and 2 others v. Rehmatullah and others PLD 1991 SC 213;
and whether the petitioners for failing to establish ancestral nature of property had any right of succession therein under Sharia.

Side Appellant : MUHAMMAD ZUBAIR and others
Side Opponent : MUHAMMAD SHARIF
--Ss. 2, 2-A [as added by West Pakistan Muslim Personal Law (Shariat) Application (Punjab Amendment) Ordinance (XIII of 1983)]
& 3---Civil Procedure Code (V of 1908), S.11---West Pakistan, Land Revenue Act (XVII of 1967), S.42---Termination of limited
interest in property of last male owner---Effect---Right to succession of deceased owner---Scope and proof---Inheritance mutation
without proving relationship between claimants and deceased owner---Evidentiary value---Property of deceased would revert to his
legal heirs and his succession. would be deemed to have opened on his death---Property of Muslim deceased would be deemed to have
devolved on all those persons, who were his heirs according to Sharia on the date of his death and in case of death of any of them, his
share would devolve on his heirs---Right of succession would not be defeated by law of limitation or principle of res judicata as no
law or judgment could override law of Sharia being a superior law---Right of succession could not be claimed without first
establishing through direct and legal evidence. that property involved limited interest and that claimants were legal heirs of last male
owner---Inheritance mutation or subsequent Revenue Record prepared on its basis could not be considered as an evidence of existence
of relationship between claimants and last male owner of property.

Side Appellant : GHULAM RASOOL
Side Opponent : GHULAM MUHAMMAD
---Ss.42 & 54---Civil Procedure Code (V of 1908), Ss.11, 115 & O.II, R.2---Suit for declaration and permanent injunction---Res
judicata, principle of plaintiffs in the first suit was that they being descendants of donee of suit-land were its owners and that
defendants with collusion with Revenue Staff had got mutation of suit-land sanctioned in their names fictitiously---Suit was
concurrently dismissed by Trial Court and Appellate Court---After dismissal of earlier suit, plaintiff filed another suit on basis of
another mutation in the same suit-land which was sanctioned earlier to mutation on basis of which suit earlier filed by plaintiffs was
dismissed by Court below---Plaintiffs had claimed that they were not aware of mutation impugned in second suit---Suit earlier fled by
plaintiff's not only was concurrently dismissed by two Courts below, but revision filed by plaintiffs against said concurrent-judgment
was also dismissed by High Court and plaintiffs had not further assailed said judgment before Supreme Court---Judgment in earlier
suit in circumstance had attained finality---Claim of plaintiff's that then were not aware about mutation in respect oh suit-land an basis
of which they lead filed second suit had no credence for consideration because plaintiffs had remained in litigation for 9 years in
which entire record of revenue was produced, but despite that titer had claimed that they were not aware of existence of said initiation
which was made earlier in time than initiation on basis of which their earlier suit was dismissed---Courts below thoroughly scanned
curd appraised evidence produced on record---In absence of any misreading or non-reading of evidence on record. Courts below had
rightly dismissed second suit holding that constructive res judicata was applicable to said second suit---Said second suit was also
barred under O.II, R. 2, C. P. C. because cause of action to base title on mutation subsequently relied upon by plaintiffs was available
to them at relevant tune, but they did not include in that suit their entire claim and they relinquished it deliberately without permission
of the Court---Plaintiffs could not subsequently sue for same---Both Courts below having committed no illegality or irregularity
revision petition was dismissed.
Citation Name : 2003 CLC 189 KARACHI-HIGH-COURT-SINDH

Side Appellant : RUKHSANA TABASSUM SHAIKH
Side Opponent : KAZIM IMAM JAN
Code of Civil Procedure 1908 ----S. 11 & O. XXXIX, Rr. 1, 2---Interim injunction ---Res judicata, principle of---Applicability---
Plaintiff's case was based on declaration of gift and mutation which was effected in favour of the plaintiff and was in violation of order
passed earlier by High Court---Defendants were in possession of the suit property at the time of gift/declaration of gift and no
allegation of damage, alteration and addition was alleged by the plaintiff---Contention of plaintiff was that the original documents
were in her possession---Validity---Declaration of gift was void for want of possession---when the original owner had denied the
execution of power of attorney in favour of the plaintiff and had appointed one of the defendants as his attorney, then the possession of
original documents did not make a prima facie case for grant of interim injunction in favour of the plaintiff---Even otherwise if any
change was effected in respect of the suit property during the proceedings, the principle of lis pendens would come into play as
envisaged under the provisions of S.52 of Transfer of Property Act. 1882---High Court declined to pass restraint order in favour of the
plaintiff---Application was dismissed in circumstances.

Side Appellant : KHALIQ DAD
Side Opponent : MEMBER (COLONIES), BOARD OF REVENUE, PUNJAB, LAHORE
S. 45---Civil Procedure Code (V of 1908), S.11---Constitution of Pakistan (1973), Art.199---Constitutional petition ---Res judicata,
principle of---Applicability---mutation on the basis of decree passed by Civil Courts--Matter was finally settled between the parties up
to High Court in favour of the petitioners and the order of High Court was not assailed before Supreme Court---Revenue Authorities
did not implement the decree passed by Civil Court which had attained finality---Validity---Where order passed by High Court was
not challenged before Supreme Court such order of High Court had attained finality and on the basis of principle of res judicata, the
same was binding between the parties.
Citation Name : 1994 PLD 249 PESHAWAR-HIGH-COURT

Side Appellant : GUL PARI ALIAS GULBARO
Side Opponent : ZARIN KHAN
S. 11---West Pakistan Land Revenue Act (XVII of 1967), S. 172---Principle of constructive res judicata---Applicability---Courts in
revenue hierarchy adjudicating upon controversy involving correction of entry in record of rights and register of mutation ---Civil
Court's jurisdiction whether barred by principle of constructive res judicata---Function of Revenue Court was to prepare revenue
record in the fight of evidence with regard to a person's title or interest, whereas finality was attached to orders of Civil Courts who
would determine civil rights with regard to person's status, right or title to a character both in rem and in personam---Civil suit for
determining any person's status, right or title to a character was thus, not barred by the principle of constructive res judicata in
circumstances.

Side Appellant : GHULAM SAKINA
Side Opponent : MOHSIN ALI SHAH
S. 2---Civil Procedure Code (V of 1908); S.11 --- Inheritance --- Res judicata---In first round of litigation fought out on merits
between the parties in respect of land left by deceased, Trial Court, had decided that deceased was Shiite, and his brothers in presence
of his widow and daughters were not entitled to share his property---Basis of previous suit like the present it was application of custom
to the succession of land/property of-deceased ---Fact that deceased was governed by custom was not denied---Deceased. was
admitted to have been survived by a widow and two daughters---Widow, under custom was entitled to succeed to the property of her
husband on a usual life tenure and same must have happened in present case, absence of mutation notwithstanding---Widow died in
1965, but before that event Act V of- 1962, had taken the field which terminated life estates of females for opening out of succession
and distribution in accordance with S.3 of the Act---Last male owner being Shia, his widow and daughter

Side Appellant : REHMAT ALI
Side Opponent : JAN MUHAMMAD
----Ss. 11 & 9-Constitution of Pakistan (1973), Arts. 199 & 201mutation - Validity- Validity of orders passed by statutory or quasi-
judicial authority questioned through constitutional petition before High Court -- High Court finding that orders impugned in
constitutional jurisdiction being valid and not liable to be interfered with -- Subsequent attempt to again impugn same orders and to
question their validity by filing civil suit before ordinary civil Court barred on general principles of res judicata-Judgment of High
Court given under Constitutional jurisdiction in the case, held, a decision by High Court on point of law and such finding binding on
subordinate courts-Civil Court cannot hold same orders to be illegal and ultra wires when High Court had already found same to be
legal and valid.[Res judicata]
Side Appellant : AHMAD DIN
Side Opponent : FAIZ ALI
Code of Civil Procedure 1908 Principle not applicable to proceedings in mutation -Civil Procedure Code (h of 1908), S. 11.

Constructive Res Judicata

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