1993 C L C 2476

[Lahore]

Before Akhtar Hasan, J

HOSHIAR ALI --- Petitioner

versus

GHULAM SABIR---Respondent

Civil Revision No. L345 of 1983, decided on 6th June, 1992.

(a) Civil Procedure Code (V of 1908)---

----S. 11---Res judicata---Failure to appeal from connected decree arising out of rival suit
disposed of by consolidated judgment, would be fatal to appeal brought against the other decree
on ground of res judicata.

Syed Asghar Hussain and another v. Syed Ahmed Ali and another 1990 ALD 423(1) and R.
Gundu Rao's case AIR 1960 Mad. 57 rel.

Imtiaz Ahmad v. Ghulam Ali and others PLD 1963 SC 382 ref.
(b) Civil Procedure Code (V of 1908)---

----S. 11---Res judicata---Any plea which had been heard and decided in previous suit would
preclude the Court to re-open the same.

Ch. Muhammad Abdul Waahid for Petitioner.

Aqil Mirza for Respondent.

Date of hearing: 10th May, 1992.

JUDGMENT
This revision impugns the judgment/decree dated 7-6-1983 of the learned Additional District
Judge, Gujrat, whereby the petitioner's appeal was dismissed.

2. Those were two rival suits, one of them was brought by the present petitioner Hoshiar Ali for a
declaration that he was owner of the shop in question having purchased for Rs.1,000 by a
registered sale-deed dated 14-1-1970 from Master Abdul Latif V; ho in turn had earlier
purchased the same for Rs.5,000 from its original owner Mst. Azizan by means of a decree dated
21-9-1966. He felt the need to bring the suit because the rival plaintiff Ghulam Sabir in his
capacity as attorney for his mother Mst. Azizan, aforesaid, had allegedly, acted in excess of his
authority in mortgaging the shop with the respondent National Bank, which by then had obtained
an order (presumably a decree dated 20-10-1972) for its sale for recovery of the mortgage-debt.
He asserted that neither the mortgage nor the decree dated 20-10-1972 were of any effect against
his interest as owner of the shop.

3. The other suit was brought by Ghulam Sabir assailing validity of the decree dated 21-9-1966
whereby his mother Mst. Azizan had transferred the shop to Master Abdul Latif on the grounds
that it was the result of their collusion and fraud. inasmuch as she was not competent to make the
sale, nor could the shop situate within municipal limits be so orally sold. He claimed title as a
son of the lady who in the meanwhile had expired.

4. Both the suits were contested by the respective defendants, were later consolidated for a single
trial, and were disposed of by the same consolidated judgment. The one brought by the petitioner
Hoshiar Ali was dismissed while the other filed by Ghulam Satin was decreed. It was axiomatic
that there were two decrees but Hoshiar Ali preferred only one appeal, that is in his own suit,
omitting to file a separate appeal from the other decree. His appeal failed and hence the present
revision petition.

5. A preliminary objection was raised against maintainability of the revision stating that the
decree in the other suit having not been assailed by a separate appeal, had become final and
operated as res judicata. Reliance was placed on Syed Asghar Hussain and another v. Syed
Ahmed Ali and another (1990 ALD 423(1)), the case of R. Gundu Rao (AIR 1960 Mad. 57) and
Sarvan Nath Sethi and another v. Ram Kishen Sethi and others (AIR 1963 Punjab 131) in
support of the view that failure to appeal from the connected decree arising out of the rival suit
being disposed of by the consolidated judgment, was fatal to the appeal brought against the other
decree on the ground of res judicata.

6. The argument was seriously opposed stating that since no such objection was taken before the
lower appellate Court, it was not open to raise it before the High Court for the first time and
further that it being purely technical in nature, could not be allowed to thwart justice. Counsel
canvassed that rules were mere mechanics for advancement of justice rather than to stifle it and
sought support for this view from Imtiaz Ahmad v. Ghulam Ali etc. PLD 1963 SC 382 (399).

7. In replay, the omission to avail the appeal was said to be substantially more than a mere
technicality going to the root of the present appeal/revision on the principle of res judicata giving
rise to a valuable right in favour of the respondents.

8. Considering the pros and cons I feel the ratio of the cases of Syed Asghar Hussain, R. Gundu
Rao, and Sarvan Nath Sethi, referred to above furnished ample authority in support of the
contention that the decision in the opposite suit could operate as res judicata. It is true it should
have been raised also before the lower appellate Court, but no direct authority was alluded to
showing that such failure would have the effect of taking away such a valuable right from the
party concerned. The petitioner should have been well aware that he was pitted against the rival
suit, which indeed was filed earlier in time on a ground slightly different from those taken up by
him in his own. Decreeing the rival suit on those grounds will always call for the need to impugn
them higher and higher, or else the finding will amount to a case heard and decided previously so
as to bar its fresh decision.

9. Ch. Abdul Wahid, Advocate for the petitioner stressed that the decree dated 21-9-1966
transferring the shop to Master Abdul Latif did not require registration notwithstanding the fact
that it was situate within Municipal limits, as according to him, it was exempt, under the
provisions of section 17(2)(vi) of the Registration Act. He maintained that for this simple reason
the contrary conclusion drawn by the Courts below was absolutely untenable.

10. Legally speaking the above proposition could not be rejected out of hand, but the point
having been heard and decided in the previous suit, would I preclude this Court to reopen it.

11. Consequently, the revision petition is dismissed.

AA./H-93/L ???? ??????????????????????? ???????????????????????

??????????? ???????????Revision dismissed.