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Petitioner: S.M. Yousuf and Others VS Respondent: The Secretary Government of Pakistan and JUDGMENT
Court Name: Sindh High Court Judge(s): Arshad Hussain Khan Title:S.M. Yousuf and Others vs The Secretary Government of Pakistan and
JUDGMENT
Reported As: 2016 SHC 85 Result: Appeal Dismissed Judgment JUDGMENT ARSHAD HUSSAIN KHAN, J. The present suit was filed by the Plaintif fs against the Defendants for Declaration and Permanent Injunction with the following prayers: i) Declaration that the plaintiff society is the lawful owner of amenity plot No.19, situated in Blocks 7 & 8, admeasuring 3040 Square yards in Daru l Aman Cooperative Housing Society Limited, Karachi, and is entitled to use it for the benefit of its members. ii) Declaration that the union was not competent to allot the said plot to Mohammad Ashfaq or to any other person or to deal with the same in any manner prejudicial to the interest of the society . iii) Declaration that the allotment of the aforesaid amenity plot to Mohammad Ashfaq is illegal and void and for a direction that the Union and Mohammad Ashfaq should restore possession of the plot to the society and also refrain from using the same. iv) Cost of the suit and any other relief which this Hon'ble court may deem fit and proper in the circumstances of the case. 2. The case of the plaintif fs as averred in the plaint is that the Plaintif fs are members of the Darul Aman Cooperative Housing Society Limited (defendant No.5) and are owners of their respective plots allotted by the said Society. On 15.09.1958 an amenity plot bearing No.19, situated in Block 7 & 8 of the aforesaid Society admeasuring 3040 square yards (subject plot) was allotted to defendant No.5 by Karachi Cooperative Housing Society Union Limited (defendant No.2), however, when the Society, after due approval of building plan, started raising construction on the subject plot, one Mohammad Ashfaq (defendant No.4) intervened and demolished the construction, took away the goods/construction material of defendant No.5 lying on the subject plot and also forcibly occupied it. Subsequently, it transpired that the suit plot was unlawfully re-allotted by defendant No.2 to
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defendant No.4. It is also averred that in the year 1977 by virtue of promulgation of Martial Law Order No.34 all amenity plots including allotment of the subject plot in favour of defendant No.4 were cancelled. The detailed report in respect of cancellation was sent to Martial Law Authorities for confirmation. Subsequently, the decision dated 17.07.1979 taken with the approval of Government of Sindh/Martial Law Administrator Zone =C' was communicated to the Secretary of defendant No. 3 (Al-Riaz Cooperative Housing Society) and Registrar Cooperative Housing Societies. In this regard, a deed of cancellation was also executed and registered on 20.01.1980 before the Sub-Registrar, Karachi. Thereafter, on 1.2.1984 the subject plot was leased out to defendant No.5 through a registered instrument. Despite cancellation of allotment, defendant No.4, continued to occupy subject plot, resulting which defendant No.5 has not been able to utilize the subject plot. The defendant No.5 filed a civil Suit bearing No. 3 of 1977 in this Court for declaration, possession and damages, inter alia, against defendant No.4, which was dismissed. The plaintiffs had no knowledge about the filing of the said suit or its dismissal prior to July 1996. Plaintiffs came to know the allotment of defendant No.4 in respect of suit plot in June 1996, when they saw the defendant using the same for commercial purposes. Thereafter, notice under Section 70 of Cooperative Housing Societies Act was given to Registrar Cooperative Housing Society and subsequently the present suit has been filed. 3. Upon service of notice of the present case, except defendants No.4 and 5, none has filed written statement in the matter. The defendants No.1 and 2 were declared exparte, whereas defendant No.3 was debarred from filing written statement. 4. The defendant No. 4, main contesting party in the present case, through his writte n statement while reiterating the contents and ground of his application under Section 11 read with Order 7 Rule 11 of CPC, filed in the present case, as preliminary legal objections, has stated that the suit is hit by principle of res-judicata and also barred under the provision of Cooperative Society Act, 1925. It is also stated that the subject plot was allotted to defendant No.4 for amenity purposes. It is also averred that defendant No.4 after taking possession has constructed a school building and established a religious institution under the name of Madarsa Madinatul Aloom Bagho-Bahar Islamia and is imparting free religious education to the students whose number is continuously increasing. The defendant No.4 also established an Eye Hospital within the premises of Darsgah. It is also contended that Martial Law Regulation 34 does not apply in any manner to the subject plot as the said Regulation was applicable to the open and vacant plots, whereas the subject plot was neither open nor vacant and further the purported deed of cancellation is ex-facie not sustainable in law. Further argued that the subject plot, lawfully allotted to defendant No.4, cannot be cancelled or disturbed without issuing any show cause notice to the allottee (defendant No.4). The defendant No.4 in his written statement also prayed for dismissal of the present suit. 5. The defendant No.5 in its written statement supported the stance of the plaintiffs and submitted that relief sought by the plaintiff is legal, proper and it has no objection to the relief sought by the plaintiffs. 6. It is imperative to mention here that defen dant No.4 prior to filing the written statem ent in the present case filed an application under Section 11 CPC read with Order VII rule 11 CPC whereby he sought dismissal of the present suit on the ground that Defendant No.5 (Darul Aman Cooperative Society) in the year 1977 had filed a civil suit No.3 of 1977, before this Court, inter alia, against defendant No.4, for declaration, possession and damages in respect of the subject plot. The said suit, wherein subject property and parties, except the present plaintif fs, were the same , was dismissed after a full-dres s trial. The plea of defendant No.4 in the said application was that since the plaintif fs in present case are claiming title over the subject plot through defendant No.5, being member of the society , therefore, present suit is hit by doctrine of res judicata and liable to be dismissed. 7. On 15.04.2004, this Court while disposing of the application under Section 11 of CPC read with under Order VII Rule 11 of CPC filed by defendant No.4, framed the following preliminary issue:- "Whether the suit is barred under Section 1 1 CPC?" 8. Though the record of the case does not show that this court framed/settled other issues in the matter , yet the learned counsel for the parties admitted that proposed issues filed on behalf of the plaintif f on 07.12.2005 were
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adopted, which are as follows: "1. Whether the suit is not maintainable? 2. Whether Plot No.19, situated in Blocks No.7 and 8 of Darul Aman Cooperative Housing Society , Karachi, is an amenity plot? 3. Whether defendant No.5 is the lessee of the aforesaid Plot No.19? 4. Whether the aforesaid Plot No.19 was lawfully allotted to defendant No.4? 5. What should the decree be?" 9. The evidence of the parties in the present matter was recorded through the Commissioner for recording evidence, appointed by this court. The said commissioner after completion of evidence had submitted his report on 15.10.2008. 10. The plaintiffs in support of their stance has examined one witness namely , S.M. Yousuf as Exhibit - 5, who filed his affidavit-in-evidence, upon which he was cross-examined by the counsel for the defendants and thereafter the side of plaintif fs' evidence was closed. The plaintif fs` witness produced following documents:- Sr.# Description of documents Exhibit 01Original Certificate dated 10.07.1997 A 02Photocopy of Lease Deed dated 10.1 1.1971 B 03Photocopy of Deed of Cancellation dated 20.01.1980C 04Photocopy of Sub Lease dated 01.02.1984 D 05Photocopy of Notice dated August 1996 with Postal ReceiptsE to E-1 06Original Copy of Notice dated 10.07.2006 F 11. Where after defendant No.4, M. Ashfaq in support of his stance in the case examined himself as Exhibit - 7. He filed his affidavit-in evidence upon which he was cross-examined by the plaintiffs` counsel. The defendant No.4, in his evidence produced following documents:- Sr.# Description of documents Exhibit 01Photocopy of written statement of defendant No.4D/1 02 Photocopy of Allotment Certificate dated D/2 10.07.1975 03Photocopy of Sub Lease dated 15.07.1975 D/3 04Photocopy of Letter dated 28.10.1995 D/4 05Photocopy of Letter dated 01.02.1982 D/5-1 06Photocopy of proposed plan D/5 07Original 07 photographs D/6-1 to D/6-7 08Photocopy of letter dated 07.1 1.1996 D/7 12. The defendant No.5-Darul Aman Cooperative Housing Society Ltd. has examined its Secretary- S. Anwar Noor as Exhibit- 9. Upon affidavit in evidence filed by the said witness he was cross-examined by the other side and thereafter side of defendants` evidence was closed. This witness also produced following documents: Sr.# Description of documents Exhibit 01Photocopy of attested copy of Resolution dated 15.09.1958D/8
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02Photocopy of Allotment Order dated 08.11.1958 with Site PlanD/9 08Photocopy of Approval Letter dated 23.05.1970D/10 09Photocopy of Renewal Letter dated 13.11.1974D/11 10Photocopy of Permission Letter dated 30.04.1975D/12 11Photocopy of M.L.O. NO.34. D/13 12Photocopy of letter dated 13.12.1977 D/14 13Photocopy of Notification dated 30.09.1979 D/15 14Photocopy of M.L.O. No.89 D/16 15Photocopy of attested copy of Deed of CancellationD/17 16Photocopy of Lease Deed dated 01.02.1984 D/18 17Photocopy of Invitation Cards. D/19-1 18Photocopy f Judgment and Decree in Suit No.3/1977.D/20 13. At the time of arguments, in the present case, learned counsel for the parties have agreed upon that preliminary issue may be decided first; {in the event this court decides the preliminary issue in favour of defendant, the present suit will be dismissed, however, if same is decided in favour of the plaintiff, in that event the counsel for the parties will address their submissions in respect of others issues and case will be decided on merit. 14. The learned counsel of defendant No.4 in his argument has urged that the present suit is not maintainable as the same is hit by principle of res jududicata as the issues involved in the present suit have already been adjudicated upon and determined finally by this court in Suit No.03 of 1997 throu gh judgment and decree dated 04.06.1995. The learned counsel in support of his stand also relied upon the following case law: (i) 1999 SCMR 1633: Khusi Muhammad and 2 others v. The province of the Punjab through Secretary to Government of the Punjab and 2 others (ii) 1997 SCMR 281 : Nazir Ahmad and others v . Abdullah and others (iii) PLD 2004 SC 178 : Mustafa Kamal and others v Daud Khan and others. 15. On the other hand, learned counsel for the plaintif fs during the course of his arguments has contended that this Court in earlier Suit No. 03 of 1977, despite reaching the conclusion that suit was not maintainable as the Court does not have jurisdiction on the point that mandatory notice under Section 70 of the Societies Act was not served by the plaintiff, yet the learned Judge in Chamber had given findings on the other issues of facts. Learned counsel further contended that once the learned judge had come to the conclusion that the suit was not maintainable then he had no jurisdiction to decide any other issues involved and thus the decision on the other issue is not sustainable in law being coram non judice hence would not come in the way of the present suit under the principle of res judicata. The learned counsel in support of his arguments has placed reliance on the following case law: (i) AIR 1916 Oudh 6: Izzat Un-Nisa Begam and another v . Kaniz Fatima and others. (ii) AIR 1925 Cal 996 Sri Gopal Jew Thakur through Narendra Nath Mondal v . Radha Biode Mondal and others (iii) AIR 1974 SC 2089: P.Das Muni Reddy v. P Appa Rao (iv) AIR 1950 PC 80: Shankarlal Patwari v . Hiralal Murarka and others Besides above the learned counsel also relied upon the definition of Lack of jurisdiction' given in the volume 16, Fourth Edition, of Halsbury's Laws of England, for the sake of convenience the same is reproduced as under:
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"1554. Lack of jurisdiction. In order that estoppel by record may arise out of a judgment the court which pronounced the judgment must have had jurisdiction to do so; the lack of jurisdiction deprives the judgment of any effect, whether by estoppel or otherwise. This rule applies even where the party alleged to be stopped himself sought the assistance of the court whose jurisdiction is impugned. A magistrate hearing a summon for the expenses of making up a new street, or for trespass to land, and having jurisdiction for that purpose, may dismiss the summons on the express ground in the one case that the street was repairable by the inhabitants, or in the other that the defendant had established a title to the property; but although such a finding is embodied in the order as drawn up it creates no estoppel betw een the parties, for it relates to a matter which the magistrate had no jurisdiction directly and immediately to adjudicate upon, being at most incident ally cognizable, so far only as necessary to his decision on the actual question submitted. The absence of a condition necessary to found the jurisdiction to make an order or give a decision deprives the order or decision of any conclusive effect, but it is otherwise where the order is good on its face and the court adjudicating has jurisdiction to determine the existence or not of the condition, and the party denying its existence has neglected his oppo rtunity of raising the objection at the hearing. Under the old practice demurrers were frequently allowed to pleas of res judicata on the ground that the pleas did not show that the court adjudicating had jurisdiction to do so. The same principle has been applied where it has been sought to give ef fect whether as a cause of action or a ground of defence, to foreign judgments.? 16. Before dilating upon the pleas taken in the arguments by learned counsel for the parties in respect of preliminary issue, it would be advantageous to refer to the Section 1 1 of CPC, which reads as under: "11. Res judicata-- 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 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. Explanation I.--The expression "former suit" shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto. Explanation II.--For the purposes of this section, the competence of a Court shall be determined irrespective of any provisions as to a right of appeal from the decision of such Court. Explanation III.--The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly , by the other . Explanation IV.--Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. Explanation V.--Any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purposes of this section, be deemed to have been refused. Explanation VI.--Where persons litigate bona fide in respect of public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.? 17. It is now well settled that in respect of doctrine of res judicata, no exhaustive test can be laid down for determining which matters are directly and substantially in issue in every case, rather it depends on the facts and circumstances of each case. The most important condition that needs to be satisfied is that the matter in issue in the subsequent suit was in issue, directly and substantially, in a former suit. The general and ordinary meaning of ?suit" is a proceeding which is commenced by presentation of a plaint. Ordinarily, and in more specific terms, a ? suit" is a civil proceeding that is instituted by the presentation of a plaint. The expression ?former suit" denotes a suit that has been decided earlier in time than the suit in question, that is, the subsequent suit, regardless of whether such a suit which was decided earlier was instituted subsequently to the suit in question or not. If two suits are instituted one after the other, and both relate to the same question in controversy, the bar of res judicata will apply even in cases where the subsequently instituted suit is decided first. Furthermore, a party' is a person whose name appears on the record at the time of the decision. A party may be the plaintiff or defendant. The condition recognizes the general principle of law that judgments and decrees bind
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the parties. Once the matter is heard and decided in one suit, the same cannot be agitated again by the same parties, their legal representatives or successors-in-interest. Rule of res judicata applies to and binds in a subsequent suit, the same parties to the former suit, and their legal representatives or anyone claiming through such parties. Further, even if a subsequent suit is instituted in a different form or under a different guise, but seeking to agitate the same matter that was decided in the former suit, it will be hit by the rule of res judicata. For applying res judicata, it is necessary that the matter should have been heard and finally decided in the former suit. 18. Keeping the above test in mind, it is imperative to examine the record of earlier civil suit bearing No. 3 of 1977. 19. During the evidence of the present case the defendant's witness produced the judgment and decree passed in suit No. 03 of 1977 on 04.06,1995 as Exh. D/20. The learned counsel for the plaintif fs during the course of arguments also placed on record the certified copy of the plaint of suit No. 03 of 1977. 20. The perusal of the above documents transpire that the suit No.03 of 1977, herein after refer to as the 'earlier suit' was filed by Darul Aman Co-operative Housing Society (present defendant No.5), before this court, for declaration, possession and damages, against (i) The Secretary Government of Pakistan Ministry of Works & Rehabilitation Division [present defendant No.1], (ii) The Chairman/Administrator, Karachi Co-operative Housing Societies Union Limited [present defendant No.2], (iii) Al-Riaz Co-operative Housing Society [present defendant No.3] and (iv) Muhammad Ashfaque [present defendant No.4], with the following prayers: "A) A judgment and decree against the Defendants for declaration that the cancellation of the allotment order in favour of the Plaintiff as well as the allotment and lease in favour of the Defendant No.4 is illegal, void and in operative and that the allotment with possession in favour of the Plaintiff still subsists; B) A Judgment and decree for the restoration of the possession of the said plot of land to the Plaintiff; C) A judgment and decree for damages of Rs.25,000/- from the defendants jointly and severally along with 12% interest from the date of the filing suit till the realization of the decretal amount; D) A judgment and decree against the Defendant No.4 as mesne profit at the rate of Rs.1000/- per month from the date of filing of the suit till vacant and peaceful possession of the said plot is handed over to the plaintiff along with 12% interest from the date of the filing of the suit till realization of decretal amount; C) Cost of the suit; D) Any other relief or reliefs that this Hon'ble Court may deem fit and proper in the facts and circumstances of the suit." 21. Out of pleading following issues were framed in the earlier suit:- "1. Whether the plaintiff is entitled for the declaration that the cancellation of the allotment order in favour of the plaintiff as well as the allotment and lease in favour of the defendant No.4 is illegal, void and inoperative and the allotment with possession in favour of the plaintiff still subsists? 2. Whether the plaintiff is entitled for the restoration of the possession of the plot of land in dispute? 3. Whether the defendants are liable jointly and severally to pay damages of Rs.25,000/- to the plaintiff? 4. Whether the defendant No.4 is liable to pay mesne profit at the rate of Rs.1000/- per month from the date of the suit till vacant and peaceful possession of the disputed plot is handed over to the plaintiff? 5. Whether the suit is bad for mis-joinder of parties and causes of action? 6. Whether the suit is under -valued? 7. Relief ?" After recording of evidence and hearing the arguments of the parties, this Court on 04.6.1995 passed the judgment on merit, whereby the suit was dismissed with cost. 22. The findings on issues No. 1, 2, 3, 4, 6 and 7 on the judgment dated 04.06.1995 passed by this court in earlier suit are important for the decision of the present issue, hence the same are reproduced as under: "ISSUE NO.1. 17. From the evidence on record it transpires that in the first instance an area of 3040 Sq. yards bearing survey number amenity plot 19 was allotted to the plaintiff Society along with a lay out plan by defendant No.2 Society. Plaintiffs had desired the conversion of this amenity plot into commercial plot which was referred and recommended
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by defendant No.2 to defendant No.1 who however, declined to accept the proposal vide letter Ex.5/10 dated 12.1.1973. It further appears that thereafter plaintiff Society expressed their inability to utilize this area as amenity and acquired an alternate site as amenity area in Block No.3 of defendant No.2 Society but consequent upon refusal by defendant No.1 to convert the plot in suit into commercial, allotment of the plot in favour of plaintiff Society was cancelled and the area stood reverted to defendant No.2. A letter to this effect dated 27 November, 1973 Ex.10/1 and its copy Ex.11/1 were produced in evidence. No doubt, plaintiffs have denied the receipt of this letter conveying the cancellation of allotment of plot in their favour there is satisfactory and sufficient evidence of Hamza Ali Mangrio who was serving as Chief Officer of defendant No.2 at the relevant period to show that the allotment in their favour was cancelled. 18. Learned counsel for the plaintiffs referred to para 8 of the plaint in which it was averred that plaintiff Society did not receive any notice for cancelling its allotment by defendant No.2 nor were they given any opportunity of hearing by defendants No.1 and 2 in respect of the cancellation of the allotment. He also attempted to rely on the contents of written statement filed by defendant No.2 in which it was stated that the plot in suit was allotted to defendant No.3 without cancellation of the allotment in favour of the plaintiffs. Be that as it may, mere statement in written statement by an Officer of a Cooperative Society would not by itself be sufficient to contradict the documentary evidence brought on record. In fact Mr. Hamza Ali Mangrio serving as Chief Officer in Karachi Cooperative Housing Societies Union from 1973 to 1977 unequivocally stated that after the rejection of the request of the plaintif f Society for conversation of amenity plot into commer cial by the Ministry of Works original allotment in favour of plaintif f Society was cancelled and the plot resumed by the Union. Later , it was allotted to defendant No.3 Society who subsequently allotted it to defendant No.4 and possession was handed over to him by defendant No.2 vide Certificate Ex.6/3 dated 29.5.1976 of handing over and taking over possession. He produced photocopy of letter Ex.10/1 addressed by the then Administrator to the Secretary of the plaintif f Society showing that original allotment in respect of the plot had been cancelled on account of refusal to allow commercialization of the plot. 19. It further transpires from the evidence that during pendency of the suit lease in respect of the plot in suit executed in favour of defendant No.4 was cancelled by defendant No.2 and a deed of cancellation Ex.5/23 was executed on 20.1.1980 before the Sub Registrar. Later, a lease deed Ex.5/24 in…
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