Full Judgment Text & Judicial Ruling

2025 C L C 1394 [Sindh (Hyderabad Bench)] Before Abdul Hamid Bhurgri, J WAQAR ALI RAHUJO and another ---Appellants Versus DILEEP KUMAR and others ---Respondents 2nd Civil Appeal No. S-35 of 2024, decided on 7th April, 2025. (a) Specific Relief Act (I of 1877)--- ----Ss. 12 & 39---Civil Procedure Code (V of 1908), O.VII, R.11---Limitation Act (IX of 1908), S. 3 & First Sched. Art. 113---Suit for specific performance of agreement to sell---Limitation---Res judicata, applicability of---Rejection of plaint---Concept of res judicata with respect to the principle of rejection of plaint, interpretation of---Deciding the point of res judicata in application under O.VII, R. 7 C.P.C.---Scope---Plaint cannot be rejected summarily by applying principle of res judicata---Specific issue should be framed and evidence has to be led and suit should be decided on merits thereon---The appellants/plaintiffs (vendees) filed a suit seeking specific performance of a contract, cancellation of a sale deed, and permanent injunction claiming that their late father (original vendee) had entered into an agreement to purchase the land in 2010, followed by a fresh agreement with legal heirs---Despite part payment through cheques, the vendors (Respondents Nos. 1-7) allegedly sold the land to a third person (respondent No. 8) through a registered sale deed---The trial and appellate courts rejected the plaint on the grounds of res judicata and limitation, leading to the filing of the present petition---The main points for consideration in the present appeal were that (i) "Whether the suit was barred by res judicata; (ii) Whether the suit was barred by Art. 113 of Limitation Act, 1908"---Held: It stood admitted that the original vendee (father of appellants/plaintiffs) had previously instituted suit against the vendor seeking enforcement of the prior sale agreement---That suit was dismissed on merits, with specific findings that the agreement could not be proved and that vendee's possession was unlawful---Notwithstanding the reliance on the fresh agreement executed with legal heirs of the original vendor, the appellants (vendees) simultaneously grounded their claim on possession allegedly derived from the earlier transaction between their predecessor-in-interests---Application under O. VII R. 11(d) C.P.C. were to be decided as per the following principles: (i) To reject a plaint on the ground that the suit is barred by any law, only the averments in the plaint will have to be referred to; (ii) The defence made by the defendant in the suit must not be considered while deciding the merits of the application;(iii) To determine whether a suit is barred by res judicata, it was necessary that (a) the 'previous suit' was decided, (b) the issues in the subsequent suit were directly and substantially in issue in the former suit; (c) the former suit was between the same parties or parties through whom they claim, litigating under the same title; and (d) that these issues were adjudicated and finally decided by a court competent to try the subsequent suit; and (e) since an adjudication of the plea of res judicata required consideration of the pleadings, issues and decision in the 'previous suit', such a plea would be beyond the scope of O. VII R. 11(d), where only the statements in the plaint would have to be perused---Therefore, the issue of res judicata could not have been decided on an application under R. 11 of O. VII of C.P.C.---The reason was that the adjudication on the issue involved consideration of the pleadings in the earlier suit, the judgment of the Trial Court and the judgment of the appellate court---The suit should be decided on merits and the issue of res judicata should remain open and a separate issue on res judicata should be framed along with the other issues---Both the courts below erred in law and wrongly rejected the plaint on the point of res judicata as both went beyond the scope of O. VII, R. 11(d) C.P.C.---However, High Court left the point of res judicata open for the Trial Court to frame the issue upon and decide the same on the basis of pleadings and evidence of the parties---As far as the point of limitation for filing the suit was concerned, the examination of the agreement revealed that no fixed date was prescribed for the performance of the agreement, however, the determination of whether time was of the essence to the contract was a matter that could only be adjudicated once respondents Nos.1 to 7 (vendors) filed their respective written statements, as they were privy to the agreement---The findings of both courts below, which summarily concluded that the suit was barred by limitation and consequently rejected the plaint, appeared to be fanciful and disconnected from the record---The issue of limitation prima facie appeared to be mixed question of law and fact, which required evidentiary adjudication and necessitated a combination of scrutiny of questions of law and fact, which could not be decided hypothetically, cursorily, or without appreciating the starting point of limitation in case before non-suiting any person on the ground of limitation---Courts below erred in law by holding that suit was time barred---Impugned judgments of both the courts below were set aside and the matter was remanded to the Trial Court with directions to restore the suit to its original status by affording respondents Nos. 1 to 7 (vendors) an opportunity to file their written statements within stipulated period as provided under the law, however, High Court left open the points of res judicata and limitation for the Trial Court to decide the same after framing of the issues from the pleadings of the parties---Second appeal was allowed, in circumstances. Keshav Sood v. Kirti Pardeep Sood and others Civil Appeal No. 5841 of 2023; Muhammad Rashid and others v. The Province of Sindh through Chief Secretary 2024 SCMR 1864; Tariq Mahmood Chaudhry, Kamboh v. Najam-un-Din 1999 SCMR 2396 and Abdul Murad Khan v. Mst. Noshaba and 9 others 1992 SCMR 1828 rel. (b) Civil Procedure Code (V of 1908)--- ----S. 11 & O.VII, R. 11---Res judicata---Principle and concept---Applicability---The concept of res judicata has evolved from English common law and since then it has been defined and interpreted through various judicial pronouncements ---The concept of res judicata is explained under S. 11 of the Code of Civil Procedure 1908---As per S. 11 of C.P.C. no court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between the parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court. (c) Specific Relief Act (I of 1877)--- ----S. 12---Limitation Act (IX of 1908), First Sched., Art. 113---Suit for specific performance of agreement to sell---Limitation, computation of ---Whether time is of the essence of contract---Principle---Where a specific date for performance of the agreement is stipulated, the limitation period shall commence from such date, conversely, if no date is fixed, it shall begin when the plaintiff becomes aware that performance has been refused. (d) Limitation Act (IX of 1908)--- ----S. 3---Duty of courts to apply the law of limitation---The court can dismiss any suit, appeal or application filed after the prescribed period of limitation even if opposite party did not raise point of limitation as defence.

Imdad Ali Unar for Appellants. Muhammad Sulleman Unar for Respondents Nos. 1 to 7. Muhammad Hashim Leghari for Respondent No. 8. Allah Bachayo Soomro, Additional Advocate General for Respondents Nos. 9 to 11. Date of hearing: 28th February, 2025. JUDGMENT ABDUL HAMID BHURGRI, J.---The appellants through this Second Appeal under Section 100 of the Civil Procedure Code, 1908 ("the Code"), have impugned the Order dated 20.01.2024 passed by the Court of Senior Civil Judge, Hala in F.C Suit No. 50/2023, whereby their plaint was rejected Under Order VII Rule 11 (a&d) C.P.C. and the Judgment dated 07.02.2024 passed by the Additional District Judge/Model Civil Appellate Court (MCAC), Hala ("the appellate Court") in Civil Appeal No. 7 of 2024, whereby their Appeal was dismissed and the order of trial Court was maintained.

2. Memo of plaint unveils that the appellants/plaintiffs filed suit for Specific Performance of Contract, Cancellation and Permanent Injunction averring that their father Haji Daim had purchased an agricultural land bearing S.No.85-1 measuring 2-29 acers situated in tapo Saeedabad, deh Manahi, taluka Saeedabad, district Matiari (hereinafter referred as suit land) along with Mehrab Rahu to the extent of 50 paisa share each through an agreement dated 09.09.2010 along with possession from Jethanand, who refused to execute sale deed and ultimately, Daim Khan and Mehrab filed F.C suit No. 260 of 2010 (New No. 05/2015) against Jethanand, who after filing his written statement died during pendency of the suit, consequently his legal heirs/sons namely Kanaya Lal and Chetan were joined but they did not contest the suit, however, said suit was dismissed vide Judgment dated 15.02.2017. The appellants/plaintiffs averred in the plaint that their present suit is based upon the contract dated 9th September, 2010 and subsequent to sale agreement written in Sindhi dated 28th September, 2016, after restoration of the entry in the names of defendants/respondents Nos. 1 to 7 with fresh terms and conditions detailed in the memo of plaint. It is also contended in the plaint that instead of executing sale deed in favour of the appellants/plaintiffs, the defendants/respondents Nos. 1 to 7 sold out the suit land to the defendant/respondent No.8 Imran Ali Junejo without possession through registered sale deed dated 17.01.2022 and revenue entry No.163 was also kept in his name, hence cause of action accrued and the appellants/plaintiffs filed suit with following prayers:- (a) That this Honourable Court would graciously be pleased to pass decree for specific performance of contract directing the defendants Nos. 1 to 9 to execute the sale deed in favour of plaintiff after receiving remaining amount of sale consideration by way of agreement dated 09.09.2010, again subsequent agreement to sale dated 28.09.2016 in favour of plaintiff and simultaneously cancel the sale deed and entry No.163 in favour of defendant No.9 or in the alternate direct the Nazir of the Court to enforce the sale deed by making the sale transaction in finality in favour of plaintiff in respect of suit land after receipt of remaining sale consideration. (b) To pass the decree for permanent injunction directing the defendants Nos. 1 to 9 not to interfere with the peaceful possession of the plaintiff and do not make any further transaction over the suit property through himself or through his agent assignees, servants etc. till the disposal of the case. (c) Costs of the suit may be saddled upon defendants Nos. 1 and 2. (d) any other relief which this Honourable Court deems fit and proper may also be awarded. 3. Record reflects that the defendants/respondents Nos. 1 to 7 appeared in the trial Court through their counsel and subsequently vide order 07.10.2023, they were debarred by the trial Court from filing written statement and the matter was ordered to be proceeded ex-parte (order dated 07.10.2023 has been produced by counsel for respondent No.8 along with his written synopsis in present appeal). Imran Ali Junejo (respondent/defendant No.8) contested the suit by filing his written statement and sought rejection of plaint through an Application Under Order VII Rule 11 C.P.C., appellants/plaintiffs filed objections thereto in the shape of counter-affidavit and ultimately, the learned trial Court rejected the plaint vide impugned Order dated 20.01.2024, which the appellants/ plaintiffs assailed in Civil Appeal No. 07/2024 Under Section 96 of C.P.C. but the same was dismissed by learned Appellate Court vide Judgment dated 07.02.2024, whereby order of trial Court was maintained, hence this second appeal. 4. The following points raised by learned counsel for the appellants/plaintiffs:- i. that the learned trial court as well as appellate Courts have misread the contents of plaint, hence, the orders passed by both the Courts below are without lawful authority; ii. that the suit is not barred by Section 11 by Res judicata as the present suit was filed on the fresh cause of action, the trial Court as well as appellate Court had totally failed to adhere the principle of rejection of plaint; iii. the learned trial Court as well as appellate Court have not considered the main aspect that the sale consideration has been paid to the respondents through cheques as part payment of the sale consideration and such cheques have been produced along with the plaint; iv. that both the Courts below had even not considered the fact that the respondents from whom the appellants claimed to have purchased the land through an agreement dated 28.09.2016 have not filed written statement to deny the claim of the appellants; v. that the orders of the trial Court as well as appellate Court are against the principles of settled provisions of law and does not come within the ambit of Order VII Rule 11 C.P.C. vi. in support of his contentions, he has relied upon the cases of Muhammad Saleemullah and others v. Additional District Judge, Gujranwala and others (PLD 2005 SC 511); Liaquat Daud Kukda v. Syed Hashim Raza and others (2023 CLC 237); Rehmat Begum v. Mehfooz Ahmed (PLD 2024 SC 1108); Muhammad Anwer and others v. Muhammad Ashraf (PLD 2015 SC 209) and Abdul Raziq v. Muhammad Rafique and others (2022 CLC 1048); vii. he lastly prayed that the impugned order/judgment passed by both the Courts below be set aside and the matter may be remanded back to the trial Court for decision on merits after framing issues. 5. Conversely, counsel for respondent/defendant No. 8 made following submissions:- i. that the controversy between the parties has already been decided in F.C suit No.260/2010 (New No.05/2015) whereby the learned trial Court dismissed the suit filed by the predecessor-in-interest of the appellants; ii. that the suit was for Specific Performance of Contract and the agreement dated 09.09.2010 also discloses the S.No.85 situated in Tapo Saeedabad, deh Manahi, Taluka Saeedabad, district Matiari, which is the subject matter of the present suit i.e. F.C suit No.50/2023; iii. that both the Courts below have rightly come to the conclusion that matter is barred by Section 11 of C.P.C. as the issue involved in the present proceedings has already been decided in previous proceedings; iv. that even from the contents of plaint which shows that the appellants had claimed that the fresh agreement is in continuation of the previous agreement; v. that the suit is badly time barred as the agreement shown to have been executed on 28.09.2016 while the suit has been filed in the year 2023; whereas, as per section 113 of the Limitation Act, the suit is to be filed within a period of three years; vi. that the respondent No.8 has purchased the suit land through a registered sale deed and he is in possession of the property, such report of possession obtained from the Mukhtiarkar concerned has been produced before the trial Court; vii. that even the court fee of Rs.15000/- has not been paid by the appellants before the appellate Court, as such their appeal was not maintainable; viii. that there is no illegality in the impugned order/judgment of the Courts below, therefore, in the end he submitted that the instant second appeal is liable to be dismissed and order/judgment of both the Courts below be maintained; ix. he in support of his contentions, has relied upon the cases of Misree Khan and others v. Abdul Ghafoor and others (PLD 2025 SC 24); Munir Hussain and others v Riffat Shamim and others (PLD 2023 SC 910); Muhammad Afzal Khan v. Muhammad Aslam (2022 SCMR 1275); Muhammad Iftikhar Abbasi v. Mst. Naheed Begum and others (2022 SCMR 1074); Muhammad Anwar and others v. Essa and others (PLD 2022 SC 716); Agha Syed Mushtaque Ali Shah v. Mst. Bibi Gul Jan and others (2016 SCMR 910); Haji Abdul Karim and others v. Messrs Florida Builders (Pvt) (PLD 2012 SC 247) and Haji Muhammad Saleem v. Khuda Bakhsh (PLD 2003 SC 315). 6. Counsel for respondents/defendants Nos. 1 to 7 through his statement dated 03.03.2025 filed before this Court has tendered his no objection; if the instant Appeal is allowed and case is remanded back to the trial Court where they shall file their written statement. 7. Learned Additional AG states that though no government interest is involved in this matter, however, he supports the impugned order and the Judgment passed by two courts below. 8. Heard learned counsel for the appellants and respondents Nos.1 to 7 and 8, as well as the learned Additional Advocate General. The record was meticulously examined. 9. This Second Appeal has been instituted by the appellants, assailing the concurrent findings rendered by both subordinate courts, whereby the plaint in F.C. Suit No.50/2023 was rejected by the trial Court pursuant to an application filed by respondent No.8, a decision later affirmed by the Appellate Court. Both forums below have reached the conclusion that Suit No.50/2023 is barred under the principles of res judicata as encapsulated in Section 11 of the C.P.C. and is further hit by the provisions of Section 113 of the Limitation Act, 1908. 10. To appreciate the controversy in the present appeal, it is imperative to traverse the antecedent history of litigation involving the parties. Prior to the institution of the instant suit, the father of the appellants namely late Daim Khan Rahujo, along with Mehrab Rahu, had filed a suit for Specific Performance of Contract bearing No.260/2010 (subsequently renumbered as 05/2015) before the Court of Senior Civil Judge, Hala, against Jethanand and others. The plaintiffs therein had asserted the execution of a sale agreement dated 09.09.2010 concerning survey numbers 637 and 85, aggregating to 33 paisa share of land measuring about 4-04 acres located in Deh Manahi, Taluka New Saeedabad, for a consideration of Rs.42,00,000/-, out of which Rs.8,00,000/- had been paid as token money. It merits mention that Jethanand, while denying the sale in his written statement, conceded that Daim Khan had forcibly dispossessed him from S.No.85. Upon the demise of Jethanand during the pendency of proceedings, his sons, Kanaya Lal and Chetan, were arrayed as parties despite being impleaded, they did not participate in the proceedings. The suit was dismissed by a judgment and decree dated 15.02.2017, and no appeal was preferred. 11. The present suit No.50/2023, forming the subject matter of this appeal, has been instituted by Waqar Ali and Amir Khan Rahujo, the sons of the deceased Daim Khan Rahujo, against respondents Nos.1 to 7, one Imran Ali Junejo (respondent No.8), and three official defendants. The appellants contended in Para 3 of their plaint that the dispute regarding heirship had been amicably resolved between Kanahiya Lal and respondents Nos.1 to 7, and upon restoration of title entries in favour of respondents Nos.1 to 7, a fresh sale agreement was executed on 28.09.2016. The total sale consideration agreed upon was Rs.185,00,000/- under revised terms, with the agreement annexed as Exhibit B/B1. The para 3 of the plaint is reproduced as under:- "That subsequently the dispute was resolved between the Kanahiya Lal and defendants Nos. 1 to 8 with regard to the heirship and finally the entry in favour of defendants Nos. 1 to 8 was restored, (private defendants) they entered into sale agreement with the present plaintiffs via subsequent agreement to sale dated 28.09.2016 on fresh terms and conditions, the total sale consideration amount was settled between the parties in respect of suit land Rs.185,00,000/- that was to be paid. Copy of subsequent agreement to sale dated 28.09.2016 in favour of plaintiff and entry in favour of defendants Nos. 1 to 8 are submitted herewith as annexure B/ to B/1. SALE CONSIDERATION AMOUNT PAID i). Rs.9,50,000/- through cheque No.1547218352 dated 13.10.2016 in favour of Dileep Kumar. ii). Rs.9,50,000/- through cheque No.1547218353 dated 13.10.2016 in favour of Dileep Kumar. iii). Rs.9,50,000/- through cheque No.1547218354 dated 15.10.2016 in favour of Parkash Kumar. iv). Rs.9,50,000/- through cheque No.1547218355 dated 10.10.2016 in favour of Parkash Kumar. v). Rs.8,00,000/- through cheque No.1560067811 dated 14.10.2016 in favour of Maya. vi). Rs.8,00,000/- through cheque No.1560067812 dated 15.10.2016 in favour of Maya. vii). Rs.6,00,000/- through cheque No.1560067813 dated 16.10.2016 in favour of Maya. Total amount paid Rs.60,00,000/- in lieu of sale consideration, Copies of such agreement to sale, copies of cheques and bank record, possession letter are submitted herewith -C to C/." 12. The appellants further alleged that they persistently pursued execution of the sale deed with respondents Nos.1 to 7, but the latter evaded compliance on various pretexts. 13. It is worth noting that while the previous agreement dated 09.09.2010 encompassed two survey numbers (637 and 85), the current suit is confined solely to survey number 85/1. 14. The appellants further contended that prior to filing the present suit, respondents Nos.1 to 7 executed a registered sale deed in favour of respondent No.8, Imran Ali Junejo, and thereafter issued threats of dispossession to the appellants. Consequently, the appellants sought Specific Performance, Cancellation of the impugned sale deed, and Permanent Injunction. They also averred that the cause of action is of a recurring nature. 15. Upon institution of the suit, notices were issued. Respondents Nos. 1 to 7 appeared through their counsel; they could not file their written statements within stipulated period consequently they were debarred by the trial Court. However, only respondent No.8 filed his written statement, asserting that he had lawfully purchased the suit property from defendants/respondents Nos. 1, 2, 3, 6 and 7 by virtue of registered sale deed No. 43 dated 17.01.2022 and was delivered possession accordingly. This stance was corroborated by the Mukhtiarkar in a written statement dated 25.09.2023. 16. It stands admitted that Daim Khan had previously instituted Suit No. 260/2010 (renumbered as 05/2015) against Jethanand seeking enforcement of the sale agreement dated 09.09.2010 concerning S. Nos. 637 and 85. That suit was dismissed on merits, with specific findings that the agreement could not be proved and that Daim Khan's possession over S. No. 85 was unlawful. 17. Notwithstanding their reliance on the fresh agreement dated 28.09.2016, the appellants simultaneously grounded their claim on possession allegedly derived from the earlier 2010 transaction. The trial court and the appellate Court both summarily rejected the plaint under Order VII Rule 11 C.P.C. on the application of respondent No.8 Imran Ali. 18. The appellants submitted copies of cheques purportedly issued by them in favour of respondents Nos. 1, 4 and 6 in support of the agreement dated 28.09.2016. These were annexed with the plaint and the instant appeal. During the pendency of the appeal, counsel for respondents Nos. 1 to 7 submitted a statement of no objection to remand the matter for trial, indicating willingness to file a comprehensive written statement if so permitted. 19. In view of the above discussion, this Court has framed following two points, to decide this Second Appeal:-- i. Whether the suit is barred by res judicata? ii. Whether the suit is barred by Article 113 of Limitation Act, 1908? POINT NO.1 20. The concept of "Res Judicata" has evolved from English common law and since then it has been defined and interpreted through various judicial pronouncements. Before moving forward it is important to understand the concept of Res Judicata which is explained under Section 11 of the Code of Civil Procedure 1908. As per Section 11 of C.P.C. no Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between the parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. Recently, the Supreme Court of India in the case of Srihari Hanumandas Totala v. Hermant Vithal Kamat and others1, interpreted the concept of Res Judicata" with respect to Order VII Rule 11 of the Code of Civil Procedure 1908. "To analysis the concept of Order VII Rule 11, it is further…

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