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Official Citation: 2023 CLC 912
Court / Jurisdiction: Sindh High Court
Year of Decision: 2024
Decision Date: 2024-12-31
Parties: Muhammad Ayaz & another vs Rasheedan Bibi & others , Military Estate JUDGMENT
Ruling Summary: This decision was rendered by the Sindh High Court on 2024-12-31, officially reported as 2023 CLC 912. In this matter between Muhammad Ayaz & another and Rasheedan Bibi & others , Military Estate JUDGMENT, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as 2023 CLC 912
Court Name: Sindh High Court Judge(s): Muhammad Iqbal Kalhoro, Muhammad Osman Ali Hadi Title:Muhammad Ayaz & another vs Rasheedan Bibi & others , Military Estate
JUDGMENT
Reported As: 2025 SHC 412 Result: Appeal Allowed Judgment
JUDGMENT Muhammad Osman Ali Hadi, J: These instant Appeals have been filed against Judgment dated 20.03.2020 and Decree dated 02.04.2020 passed by the learned Single Judge in Suit No.603/2005 (collectively referred to as "the Impugned Judgment"). In effect, the Impugned Judgement cancelled the Appellants" existing ownership / title documents of the Suit Property, and granted declaration and possession of the Suit Property in favour of Respondent No.1, against which the Appellants have approached this Forum. The prelude to the matter is as below: 2. The Appellants claim to be owners and in physical possession of immoveable property being Plot No.795/M-I, measuring approx. 550 sq. yards along with the construction, situated at Defence Officers Housing Society Phase-I, Malir Cantt, Karachi ("the Property"). The Appellants have claimed title of the Property from Respondent No. 2, who was allotted the Property in the year 1987. Vide agreement of sale dated 10.11.1999, the Appellant No. 1 purchased the Property from Respondent No. 2, through Respondent No. 4 who was the authorized attorney of Respondent No. 2. The Appellants state that full sale consideration of Rs.1,550,000 (Pak Rupees One Million and Five Hundred and Fifty Thousand only) was paid by Appellant No.1 through various cheques and pay orders, after which Respondent No. 4 handed them possession of the said Property. The Appellants further submit that Respondent No.4 executed a Sub-Power of Attorney in favour of the Appellants, registered by the Sub-Registrar T Division III A Karachi vide registration No.834 dated 10.11.1999. The Appellants contend that Respondent No. 5 had also acknowledged the Property transaction, vide their letter dated 14.06.2002.
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3. The Appellants state the Property was originally allotted by Respondent No.5 to Respondent No.2 in the year 1987, vide a Letter No.118/TP/MJ/LC/87/795/MI dated 28.12.1987. Respondent No.2 thereafter authorized Respondent No.4 as his special attorney, to execute the necessary lease deed, subsequent to which lease deed bearing registration No.544 Book-I Addl. and dated 27.02.1999 in Schedule IX-A of the Cantonment, was executed in favour of Respondent No.2, showing Respondent No.3 as attorney. 4. Then on 28.10.1999 Respondent No. 2 executed an Irrevocable General Power of Attorney in favour of Respondent No.4, vide Registration No.814 dated 28.10.1999. It was further contended that the said Irrevocable Power of Attorney authorized Respondent No.4 to act on behalf of Respondent No.2 in all aspects of the Property, including selling the Property. 5. The Appellant No.1 states that after purchasing the Property in 1999, they obtained an N.O.C. from Respondent No.5 dated 20.02.2002, subsequent to which a demarcation was carried out on the Property, in favour of Appellant No.1. The Appellants contend they submitted a building plan for a house to be constructed on the Property, which was approved by Respondent No.5 through Letter dated 09.05.2002. Pursuant to such approval, the Appellants constructed a house on the Property. The Appellants have remained in possession of the Property since purchasing the same in the year 1999. 6. It appears at this stage, in or around the year 2002, Respondent No.1 came forward with a claim towards ownership of the Property. Respondent No.1 has claimed her ownership through Mr. Muhammad Aslam Gondal, whom she states is also Respondent No. 2 in the instant Appeal. 7. Respondent No.1 states that Muhammad Aslam Gondal / Respondent No. 2, was allotted the Property, after which he entered into a sale agreement and issued a registered a general power of attorney in favour of Respondent No.3, namely Haji Noor Muhammad, dated 17.09.1990, at Islamabad. Against the same, (as per Respondent No.1) Respondent No.3 paid Mr. Gondal Rs.100,000/-, after which, original documents were handed over by Mr. Gondal to Respondent No. 3. 8. Respondent No.1 then alleges that Haji Noor Muhammad (Respondent No.3) executed a sub- power of attorney, construction agreement and a sale agreement in favour of Respondent No.1 on 12.11.1992, and handed over all original Property documents to Respondent No.1, for which he received payment of Rs.1,80,000/- against the same. 9. Respondent No. 1 then (belatedly) found out the Property had construction on it, and was occupied by the Appellants. She filed a Civil Suit No. 49 of 2002 ("1st Initial Suit") before Senior Civil Judge, Malir at Karachi (at page 251 of the File), in which she prayed for declaration, possession, cancellation of documents and permanent injunction of the Property. The current Appellant No. 2 as well as Respondents No. 5 & 3 were also arrayed as Defendants in the said 1st Initial Suit. 10. The various Defendants in the 1st Initial Suit filed their replies / written statement. The Plaintiff in the 1st Initial Suit (i.e. current Respondent No.1 in the instant Appeal) had also filed her affidavit-in- evidence, along with various documents. 11. However, the Defendants in the Suit also filed an application under Order VII Rule 11, Code of the Civil Procedure 1908 ("CPC"), vide which the learned Trial Judge through a speaking order dated 07.03.2005 (at page 287 of the File) rejected the plaint, on the basis that the Plaintiff (i.e. current Respondent No.1) based her claim on an unregistered sale agreement, under which declaration / injunction of the Property could not be granted (as a sale agreement in itself does not provide title to immoveable property). As such the Plaint was rejected for not having a cause of action. An observation was made by the learned Trial Judge that the Plaintiff / Respondent No. 1 could only file a claim for specific performance (against Respondents No. 2 & 3), as just a sale agreement would not give them any entitlement to the Property itself. 12. Subsequently, Respondent No.1 then filed Suit No. 603 of 2005 in the Original Jurisdiction of the High Court at Karachi ("2nd Suit") seeking a declaration, possession, cancellation of documents,
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damages and permanent injunction (at page 299 of the File). A prayer (at page 317) with a direction for specific performance against the legal heirs of Muhammad Aslam (i.e. Respondent No.2) and Respondent No. 3 was also included. The 2nd Suit further sought a declaration to void the power of attorney issued in favour of Respondent No.4 (i.e. Mr. Muhammad Akhtar Abid) executed by Respondent No.2 (i.e. Muhammad Aslam). Respondent No.1 also prayed that Respondent No. 6 demolish the construction raised on the Property by the Appellants. 13. The Appellants filed counter suit no.1713/2008 which was taken up and heard alongside Suit No.603/2005. The Impugned Judgement is consolidated for both suits, and hence this judgement in appeal shall prevail over both the mentioned suits. 14. Learned Counsel for the Appellants asserted that the Property which was being claimed by Respondent No.1 belongs to the Appellants, and that Respondent No.1 has provided false information and documents. He further averred that even the name of Respondent No.2, i.e. Muhammad Aslam, is different from the person under whom Respondent No. 1 is allegedly claiming her right. He contended Respondent No.1 is claiming the documents, i.e. the alleged sale agreement and power of attorney, are issued by a person named Muhammad Aslam Gondal, which as per learned Counsel for the Appellants, is a different person altogether. Learned Counsel for the Appellants emphasized this point of Muhammad Aslam Gondal not being the same person as Muhammad Aslam, who was the original allottee of the Property. Learned Counsel for the Respondent No.1 has expostulated this view by stating that Muhammad Aslam was the same person, as his complete name was Muhammad Aslam Gondal. 15. Counsel for the Appellants then referred to several documents, through which he stated that Respondent No.1 was never the owner or otherwise entitled to the Suit Property. He submitted that Respondent No. 1 only appeared and filed cases at a very belated stage, in order to try usurp the Property, which as per learned Counsel, belongs to the Appellants, who have been enjoying possession of the same. 16. Counsel next urged that the mala fide of Respondent No.1 was apparent, and can be observed by the fact she appeared and approached the official Respondents belatedly in the year 2002, more than 10 years after she claimed to have purchased the Property. Counsel submits the Appellants had purchased the Property and even completed their construction by this point in time. Counsel for the Appellants stated the Property had been demarcated and constructed in accordance with law, and now Respondent No.1 was attempting to landgrab the same. 17. Learned Counsel then submitted that the Impugned Judgment is erroneous in nature, as the principles of res judicata were not properly considered by the learned Trial Court in the 2nd Suit. He submits the matter pertaining to the Property was previously filed by Respondent No. 1 in the 1st Initial Suit, and their plaint was rejected, and as such they could not be allowed to re-contend the same. As per learned Counsel for the Appellants, Respondent No.1 has simply added an additional prayer clause to their previous Suit which (as per Counsel) could not constitute a ground to file a new suit. Counsel has referred to the principle of constructive res-judicata, which he says clearly hit the instant matter. He has relied on case law in support of his contentions[1]. 18. Learned Counsel for the Appellants next contended that Suit No.603/2005 would also be hit by the trappings of Order II Rule 2, Code of the Civil Procedure 1908 (CPC). He stated that under Order II Rule 2 CPC it was incumbent upon Respondent No.1 to have filed his complete claim in the 1st Initial Suit (i.e. No.49 of 2002), which she failed to do, and as such would be barred from filing any subsequent suit with regard to the same claim. 19. Counsel asserted that even otherwise, the said sale agreement vide which Respondent No.1 now seeks specific performance, was executed in November, 1992, over 10 years before they approached the Court, and as such the said 2nd Suit was hopelessly time barred. Counsel stated
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that no justification for condonation of delay was filed, and on this ground alone the 2nd Suit (i.e. No.603/2005) ought to have been dismissed. 20. Learned Counsel submitted that the Impugned Judgment was heavily reliant on evidence which was both inadmissible and unreliable. He made reference to an alleged Fact-Finding Report (at page 849); an Inquiry Report submitted by a Cantonment Executive Officer, Hyderabad Cantonment (available at Page 591 of the File) in which learned Counsel claims he was declined the right to cross-examine the author of the alleged Report. He further referred to his deposition (at Page 905 of the File) whereby the transcript shows that the Appellants Counsel was indeed stopped from examining the said author of the Inquiry Report. He then referred to an affidavit filed by the alleged widow of Respondent No. 2 taken on record (available at page 893 of the File), though she was neither put in examination nor was Counsel for the Appellant allowed to cross- examine her. He states all these factors, despite being contrary to law, formed a major part of the basis for the Impugned Judgement. 21. The learned Counsel for the Appellants lastly contended that no specific performance was available to Respondent No.1, and has further referred to the provisions contained in section 27 (B) of the Specific Relief Act, 1877, in his defense. 22. The above are the primary arguments furnished by the Appellants, which are relevant for the instant purposes. Learned Counsel for Respondent No.1 remonstrated the submissions made by the Appellants, with the following contentions: 23. He firstly averred that Muhammad Aslam Gondal was the same Respondent No.2 (Muhammad Aslam), and that Gondal was part of his complete legal name. 24. Learned Counsel for Respondent No.1 contended that the principles of res judicata would not be applicable to the matter-at-hand, as he stated that res judicata would only apply to matters where a suit is firstly accepted. As per learned Counsel for Respondent No.1, the 1st Initial Suit was void ab-initio and was never accepted, and therefore principles of res judicata would not be applicable. He conceded that as the 1st Initial Suit was based on an unregistered sale agreement, it was not maintainable. As such, learned Counsel for Respondent No.1 submitted that since the Suit itself never existed, and hence the issue of res judicata cannot apply. Learned Counsel for Respondent No.1 further stated, even otherwise the matter was not decided on merits at the initial stage, and therefore such bar of res judicata even in this regard would not apply. 25. Learned Counsel for Respondent No.1 next submitted, while expanding his arguments on the principles of res judicata (ibid.), that since the initial Suit never existed, Order II Rule 2 CPC would also not be applicable in this regard. He read Section 54 of the Transfer of the Property Act, 1882, as well as Order VII Rule 13 CPC, and stated that there is no bar on Respondent No.1 to having filed the 2nd Suit (i.e. 603/2005). 26. The final point controverted by the learned Counsel for Respondent No.1 was the issue of limitation raised by the Appellants. Learned Counsel for Respondent No.1 stated that there are two main grounds vide which limitation for seeking specific performance is initiated. He stated the first ground is when a date for performance is specified in the agreement itself, then from that point the law of limitation will become applicable. He submitted the second ground for the law of limitation would be when performance has been refused. Learned Counsel provided case law in support of his contentions.[2] 27. Learned D.A.G. appearing on behalf of Respondent No.5 has relied upon his Written Statement (filed in 2nd Suit No.603/2005 available at Page 345 of the File) in which he has taken us through the contents. Learned D.A.G. stated that Respondent No.1 did not have any locus standi to file the 2nd Suit, and Respondent No.1 could not have purchased the said Property without prior approval from the Federal Government (as it was government allotted land), which was not obtained by Respondent No.1. Learned D.A.G. also contended that the 2nd Suit was barred under law of
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limitation, and even on this ground the 2nd Suit ought to be have been dismissed. He lastly contended that Respondent No.1 has not shown any valid legal document in support of their claim, and in this regard the Impugned Judgment has erred. 28. We have heard all the learned Counsels and their exhaustive arguments, on which our opinion follows beneath. 29. After hearing the learned Counsels, we have limited our deep considerations in these Appeals to the following points: i. Whether the principles of res judicata (and the effect of Order II Rule 2 CPC) were correctly applied in the Impugned Judgment? ii. Whether the 2nd Suit was barred under the law of limitation? iii. Whether there has been any misreading / misapplication of evidence relied upon in the Impugned Judgement? 30. The 1st Initial Suit was filed by Respondent No.1 on 10.06.2002 before the Court of Senior Civil Judge, Malir at Karachi (at Page 251 of the File). In the 1st Initial Suit, the Respondent No.1, inter alia, sought a declaration and cancellation of the Property, against the Appellants (and some current Respondents). Respondent No. 1 based her claim on an unregistered sale agreement and further sought possession of said Property, as well as an injunction against the Appellants from interfering with the Property. 31. The Appellants filed their written statement, along with an application under Order VII Rule 11 CPC. 32. That vide Order dated 07.03.2005 (at Page 287 of the File) the learned Senior Civil Judge heard the application under Order VII Rule 11 CPC and rejected the plaint, in light of the fact that no cause of action had accrued to Respondent No. 1. The Order further held that reliefs of declaration and/or possession were also not available to Respondent No. 1, as the same could not be granted on the basis of an unregistered agreement to sell. The operative part of the Order (at Page 291 of the File) is reproduced hereunder: "... I relied upon PLD 1997 Page 292 in which it was held that; "Transfer of property - Mere agreement to sell would not confer any right title or ownership in as much any transaction of sale in respect of immovable property worth Rs.100/0 or upward was required to be compulsory registered." Furthermore, it is settled law that agreement to sell does not create any right or title, interest in the purchaser, it only extends a right to the parties to maintain a suit for Specific Performance of the said contract. I relied upon 1989 SCMR Page 9490. I also relied upon PLD 1997 Karachi Page 202 in which the Honourable Justice Mr. Rana Bhagwan Das held as under: "S.42 - Civil Procedure Code (V of 1908), O. VII, Rul11 - Limitation Act (IX of 1908), Art. 142 - Suit for declaration on basis of agreement to sell - Prayer for mesne profits against defendants who were owners on basis of registered deed of sale - Such relief was misconceived and not warranted --- In absence of my right or title to property, plaintiff had no cause of action for relief of possession and on that score plaint was liable to be rejected --- Plaint being hit by provision of O. VII, R.11 CPC was rejected in circumstances." In view of above I am of opinion that since the plaintiff has no right or title to property plaintiff had no cause of action for relief of declaration and possession. I therefore reject the plaint under Order 7 Rule 11 C.P.C., with order as to costs."(emphasis supplied). 33. A bare perusal of the said Order shows the learned Civil Judge clearly decided that no right or cause of action with regards to declaration or possession, was available to Respondent No.1, as her alleged claim premised entirely upon an unregistered sale agreement. The learned Civil Judge referred to precedents, as well as provisions of the Specific Relief Act, 1877, in support of the Order.
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34. It is an accepted position by all parties, including Respondent No.1, that the said Order was never appealed, and therefore attained finality. It was also observed in the Order, that the only right (if any) available to Respondent No.1, was to file a suit for specific performance. 35. Subsequently Respondent No.1 filed Civil Suit No.603/2005 ("2nd Suit") (at Page 303 of the File) against the Appellants and other Respondents, in which she sought, inter alia, specific performance of an unregistered sale agreement dated 10.11.1992 (at Page 829 of the File) between Respondent No.1 and (Respondent No.2). A perusal of the remainder prayer clauses in the 2nd Suit (at Pages 149-153) would show that Respondent No.1 also sought declaration, cancellation and injunction against the Appellants regarding the Property. 36. The learned Counsel for the Appellants had vehemently contended the principles of res judicata would apply, which was strongly contested by the learned Counsel for Respondent No.1, as already discussed (ibid). 37. In the initial Order dated 07.03.2005 passed in the 1st Initial Suit, of which the operative portion was reproduced (ibid), it was clearly held that no suit for declaration, possession or injunction was available to Respondent No.1. The only option they would have, would be to first file a suit for specific performance, after which (and obviously subject to being successful) they may have a cause of action for declaration and possession. 38. While it is settled law that an application for rejection of plaint does not in all instances preclude a party from filing a new suit on the same cause of action (unless the subsequent suit still remained barred under law), evolving jurisprudence has also clarified that if a plaint is rejected for not having a cause of action, only after such defect is remedied, the party concerned would be allowed to file a new suit on the same cause. In Muhd. Anwar v Essa[3] the August Supreme Court held: "7. "A perusal of rule 11 reveals that it envisages and records 4 categories where the Court could reject a plaint and the first 3 are where the deficiencies in the plaint could be redressed. For instance, under clause (a) where the plaint is rejected on the ground it does not disclose a cause of action, subject to the law of limitation, a fresh plaint could be presented by overcoming the defect and disclosing the cause of action" (emphasis supplied)." 39. In the matter at hand, we have found the basic defect in the 1st Initial Suit filed by Respondent No.1, was still present at the time they filed the 2nd Suit. Furthermore, the intent of seeking a declaration and possession was present in the 2nd Suit, despite the initial Order expressly prohibiting the same. What cannot be done directly, cannot be done indirectly, and we find on this front Respondent No. 1 sought to seek the same reliefs vide the 2nd Suit, which would be legally impermissible. 40. The Respondent No.1 in essence had filed the same suit, and had simply inserted a new prayer clause seeking specific performance of the sale agreement. The spirit of the 2nd Suit otherwise remained unchanged from the 1st Initial Suit. 41. Respondent No.1 had neither cured the defect highlighted in the initial Order, nor had they appealed against the said initial Order. This clearly shows Respondent No.1's acceptance of the initial Order, which even the learned Counsel for Respondent No.1 fairly conceded to at the time of arguments. 42. Section 11 CPC, the definition of Res Judicata reads: "11. Res Judicata: No Court shall try suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court." (emphasis supplied).
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43. A perusal of the above, highlights that not just any suit, but any "issue" which has been decided also cannot be re-tried. 44. It is our opinion the "issue" of Respondent No.1's competence to institute legal proceedings for "declaration" and/or "possession" regarding the Property was deliberated and decided in the initial Order. The same reliefs of declaration, possession / injunction were already rejected in the 1st Initial Suit. Without Respondent No.1 making necessary remedies to change circumstances which highlighted serious defects in their 1st Initial Suit, they could not have validly filed the 2nd Suit. In Thoday v Thoday[4], Lord Diplock enlightened the doctrine of "cause of action estoppel". "Cause of action estoppel" applies to prevent a party from re-litigating the existence of a particular cause of action which has already been decided by a court.[5] The relevant excerpt reads: "Cause of action estoppel is that which prevents a party to an action from asserting or denying, as against the other party, the existence of a particular cause of action, the non-existence or existence of which has been determined by a court of competent jurisdiction in previous litigation between the same parties. If the cause of action was determined to exist, that is, judgment was given on it, it is said to be merged in the judgment...If it was determined not to exist, the unsuccessful plaintiff can no longer assert that it does; he is estopped per rem judicatam." 45. The House of Lords further elaborated this principle by explaining (and distinguishing) between "cause of action estoppel" and "issue estoppel" in the case of Arnold v National Westminster Bank Plc[6], whereby in the former there is an absolute bar on all points already decided in a previous matter between the parties based on the same cause action; whereas in the latter parties are prevented from reagitating any issue between them which has been decided (regardless of whether stemming from the same cause of action or not).[7] 46. The Indian Supreme Court endorsed this concept, and in the case of Hope Plantations Ltd. v Taluk Land Board[8] opined: "17. ... One important consideration of public policy is that the, decisions pronounced by courts of competent jurisdiction should be final, unless they are modified or reversed by appellate authorities; and the other principle is that no one…
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