2/1/24, 12:17 AM 2021 C L C 553

2021 C L C 553
[Sindh]
Before Irfan Saadat Khan and Fahim Ahmed Siddiqui, JJ
MUHAMMAD USMAN SIDDIQUI----Petitioner
Versus
MUKARAM ALAM SIDDIQUI and 2 others----Respondents
High Court Appeal No.121 of 2018, decided on 1st November, 2019.
(a) Specific Relief Act (I of 1877)---
----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.
Gopi Mal v. Vidya Wanti AIR (29) 1942 Lah. 260; Suraya Begum v. Alimul
Malik 1971 DLC 31; Muhammad Younus Qureshi and others v. Mrs. Feroz Qureshi
and others 1982 CLC 976; Custodian of Evacuee Property v. Tarique Mehmood
Butt 2001 YLR 3139 and Abdullah Khan v. Mst. Khursheed Begum and another
1987 SCMR 1652 distinguished.
(b) Civil Procedure Code (V of 1908)---
----S.11---Res judicata, doctrine of---Scope---Section 11 of C.P.C. provides that
once a matter is finally decided by the competent court, no party can be permitted
to re-open it in subsequent litigation---To bring an end to litigation and to save the
parties from constant troubles, harassment and expenses said rule is made in the
Code---To bring the finality of the judgment, such rule is applied, which is a rule of
universal application and in almost every civilized legal system, this rule is being
followed---Doctrine of res judicata is evolved from the common law system and it
rests on the overriding concept of judicial economy, consistency and finality of a
civil action---It has roots under the Roman Law also, where a defendant can
successfully contest a suit under the plea of 'excaptio res judicata' meaning that 'one
suit and one decision is enough for any single dispute'---Doctrine of res judicata is
conceived in the general interest of public policy which requires that all litigation
must come to an end at a point of time---Principle is also founded on justice, equity

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and good conscience, which requires that a party who has once succeeded on an
issue should not be harassed by the multiplicity of proceedings involving the same
issue.
Pir Bux v. Chairman Allotment Committee PLD 1987 SC 145 ref.
(c) Maxim---
----"Excaptio res judicata"---Meaning---One suit and one decision is enough for
any single dispute.
(d) Maxim---
----"Res judicata proveritate accipitur"---Meaning---Judicial decision must be
accepted as correct.
(e) Civil Procedure Code (V of 1908)---
----S.11---Res judicata---Applicability---Requirements, explained.
Following are the requirements for application of doctrine of res judicata:
i) The matter directly and substantially in issue in the subsequent suit or issue
must be the same matter which was directly and substantially in issue either
actually or constructively in the former suit;
ii) The former suit must have been a suit between the same parties or between
parties under whom they or any of them claim;
iii) Such parties must have been litigating under same title in the former suit;
iv) The court which decided the former suit must be a court competent to try the
subsequent suit or the suit in which such issue is subsequently raised;
v) The matter directly and substantially in issue in the subsequent suit must have
been heard and finally decided by the court in the former suit.
(f) Civil Procedure Code (V of 1908)---
----S.11---Re judicata---Constructive res judicata---Scope---Constructive res
judicata is an artificial form of res judicata which provides that 'if a plea could have
been taken by a party in a proceeding between him and his opponent, he should not
be permitted to take that plea against the same party in a subsequent proceeding
regarding the same subject-matter'---Such a rule, no doubt, is apparently
contradictory to the considerations of public policy on which the doctrine of res
judicata is based but such a course is purposely adopted by the jurists otherwise the
doctrine of finality of judgments would have been materially affected.
(g) Administration of justice---
----Litigant must be vigilant regarding his matters otherwise he will suffer.
Ishrat Ghazali for Appellant.
Syed Fazal-ur-Rehman for Respondent No.1.

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Asif Rasheed for Respondent No.2.

Ms. Durdana Tanveer, Assistant Attorney-General.
Date of hearing: 28th October, 2019.
JUDGMENT
FAHIM AHMED SIDDIQUI, J.---This appeal arises out of impugned order
dated 30-04-2018, passed by the learned Single Judge of this Court in Suit
No.2180/2017. The appellant and respondent No. 1 are real brothers, who are
arraigning in respect of property i.e., House No.J-25, Jami Staff Lane, Phase-II,
Extension DHA, Karachi, (hereinafter called as the said property) which belonged
to their deceased mother Mst.Shahnaz Maqbool. Through the impugned order, the
learned Single Judge rejected the plaint of the aforementioned suit filed by the
appellant under Order VII, Rule 11, C.P.C.
2. The appellant has filed the above-mentioned suit with the main prayer of
declaration regarding the said property, on the basis of Gift Deed allegedly
executed in his favour by his deceased mother who was the original owner of the
said property. In the prayer clause, he also seeks directions to the respondent No. 2
to get the said property mutated in his name and other consequential reliefs. It is the
claim of the appellant (plaintiff of the suit) that the said property was gifted to him
on 18-06-1989, through an unregistered Gift Deed, by his mother Mst. Shahnaz
Maqbool, who died on 25-11-1989. The appellant also claims in the body of the
plaint that he has been residing in the said property and after 22 years of the said
gift, respondent No. 1 dragged him by filing a false Suit No. 786/2011 for Partition,
Distribution of Shares and Permanent Injunction. The former suit was decreed Ex-
Parte.
3. It reflects from the impugned order that the counsel for the appellant (plaintiff
of the Suit No. 2180/2017) was put on notice to satisfy the Court regarding the
maintainability of the suit. It appears that the counsel for the parties were heard on
the point of maintainability and subsequently the impugned order was passed.
4. Mr. Ishrat Ghazali, learned counsel for the appellant, pressed the instant
appeal by submitting that some important aspects of the case have been overlooked
by the learned Single Judge while passing the impugned order. He submits that the
suit filed by the appellant is in respect of declaration regarding the gift deed while
the suit filed by the respondent No. 1 was for partition and distribution of share etc.
According to him, the appellant has tried his level best to get the earlier suit
reopened, which was filed by respondent No. 1 before the District Court, and to be
decided on merits but all his efforts were not appreciated. He submits that since the
valuable rights of the appellant are involved in this case, as such he should be given
a chance of hearing. He emphasizes that not only his right of the audience was
denied but he was not allowed to participate in the auction proceedings in the
execution of the partition suit. He submits that in the partition suit filed by the
respondent No. 1, the appellant appeared and engaged an advocate to defend him
but after his death he could not appear before the learned Court of Senior Civil
Judge and the respondent No. 1 has played a trick by engaging some advocate on

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his behalf, who subsequently withdrew his power. According to him, a fraud was
played as such he filed an application under Section 12(2) of the Code of Civil
Procedure, 1908 (hereinafter referred as 'C.P.C.'), which was dismissed and the
appeal was also dismissed up to this forum. According to him, the respondent No. 1
was well aware that the said property had already been gifted to the appellant but in
spite of that, he had dragged the appellant in litigation with ulterior motives. He
points out that the suit before the Court of Senior Civil Judge was also incompetent,
as the same was filed against a dead person (i.e. the deceased brother of the
appellant and respondent No. 1). He submits that even the execution proceeding
was improperly carried out as the requisite stamp duty was not paid. According to
him, the appellant is intending to establish his right in his suit before this Court
based on the gift deed executed in his favour by his deceased mother. In support of
his contentions, he relies upon Gopi Mal v. Vidya Wanti {AIR (29) 1942 Lahore
260}, Suraya Begum v. Alimul Malik (1971 DLC 31), Muhammad Younus Qureshi
and others v. Mrs. Feroz Qureshi and others (1982 CLC 976), Custodian of Evacuee
Property v. Tarique Mehmood Butt (2001 YLR 3139) and Abdullah Khan v. Mst.
Khursheed Begum and another (1987 SCMR 1652).
5. Conversely, Mr. Fazal-ur-Rehman, learned counsel for respondent No. 1,
submits that there is no illegality in the impugned order. According to him, there
must be an end of litigation, as the appellant has taken about twenty-two different
legal course against respondent No. 1 in which he remained unsuccessful. He points
out that even his plea of fraud and misrepresentation has also remained unrewarded
up to this Court. He submits that after every failure, the appellant opens another
front of legal battle and the present effort is also one of the same. He submits that
the Gift Deed is an unregistered document as such the same has no worth in the
eyes of law. He submits that in the partition suit, the appellant has filed powers of
three advocates but he avoided to proceed with the case and his counsel has
withdrawn the power but even then he did not appear in the suit which was rightly
decreed. He submits that since the appellant has chosen to appear in the suit for
partition through an advocate; therefore, he cannot take a plea of fraud in the said
suit. He submits that when the fate of the property has been decided and it was put
on auction, no other proceedings on whatsoever ground can be initiated. He submits
that the respondent No. 1 has no objection if the appellant matches the highest bid
regarding the said property. In support of his arguments, he relies upon Pir Bux v.
Chairman Allotment Committee (PLD in 1987 Supreme Court 145).
6. Mr. Asif Rasheed, the learned counsel for the respondent No. 3 submits that
the said property still stands in the name of Mst. Shahnaz Maqbool i.e. the mother
of the appellant and respondent No. 1. He submits that during the lifetime of the
original owner and even after her death, no request for mutation of the property on
the basis of the alleged Gift Deed was made before the respondent No.3.
7. Ms. Durdana Tanveer, learned Assistant Attorney-General, submits that the
State has no concern with the private dispute of the parties and the officials of the
government would follow the verdict of this Court in letter and spirit.
8. We have heard the arguments advanced and scrutinized the available record
and also enlightened ourselves from the cited case laws.

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9. In the instant matter, the parties are entangled in litigation since a couple of
years. It is an admitted position that the appellant has made his appearance in the
partition suit initiated against him before the learned Senior Civil Judge, Karachi
South. The appellant has tried to make it a great point that his earlier lawyer in the
partition suit expired and the subsequent lawyers were managed by the respondent
No.1 and they were not engaged by him. Nevertheless, it is the settled legal
principle that a litigant must be vigilant regarding his matters otherwise he will
suffer. The appellant must be vigilant regarding the partition suit initiated by his
real brother, and he has to approach immediately to the trial Court after the death of
his earlier lawyer, he should have contested the same watchfully. We are of the
view that no premium can be awarded to the appellant. It is asserted by the
appellant that the said property was gifted to him by his (late) mother Mst. Shahnaz
Maqbool about more than 22 years ago. It is also noteworthy that after a few
months of execution of the alleged Gift Deed, the donor expired. It is also
considerable that neither in the lifetime, the donor and donee appeared before the
authorities for mutation nor after the death of Mst. Shahnaz Maqbool, any effort of
mutation was made by the appellant to get the property mutated in his name. Even
no application was placed before the respondent No. 3 in this respect.
10. Before entering into further discussion, we think it would be proper to
analyze the case-laws cited before us. The learned counsel for the appellant has
relied upon the case of Muhammad Yunus Qureshi (supra), wherein it was held that
the title of the property cannot be decided in the administration suit, as such the
disputed property be segregated with the rest of the properties for the purpose in the
administration suit. In the case of Muhammad Yunus Qureshi (supra), the dispute
arises during the pendency of the administration suit, wherein the widow of the
deceased claimed that one of the properties was gifted to her by the deceased and
the same was mutated in her name. On this score, the present suit is distinguishable,
as presently the administration suit has already been decreed and the property in
question has not yet been mutated and even no application for mutation was ever
moved by the appellant. Besides, the appellant has to take this plea before the civil
court, where the administration suit was proceeded and decided. Hence, the referred
case-law does not apply to the facts and circumstances of the case in hand.
Similarly, the case of Gopi Mal (supra), the discussion pertains to the non-
executability of a partition decree, which is not properly stamped as per the
mandate of the Stamp Act, 1899. The said case-law also has no bearing with the
case in hand because before us, no issue of execution of decree at all in the present
case and the proper forum for raising such questions is the executing court. The
case of Evacuee Property (supra) is also distinguishable from the case in hand as in
the said case the status of refugee was to be determined in respect of some
allotment of lands, hence the same is on different footings. In the same way, the
rest of the case laws cited by the learned counsel for the appellant have no bearing
to the present case. So far as the case of Pir Bux (supra) is concerned, the same
pertains to the doctrine of res judicata, and the said doctrine is being discussed in
the foregoing paras.
11. The doctrine of res-judicata is a well-settled rule in nearly all judicial
systems, which empowers the court to put at rest the litigation at some terminating

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point. In our jurisdiction, Section 11 of C.P.C. embodies this rule of conclusiveness

of the judgment. It enacts that once a matter is finally decided by the competent
court; no party can be permitted to reopen it in subsequent litigation. To bring an
end to litigation and to save the parties from constant troubles, harassment and
expenses this rule was made in the Code. To bring the finality of the judgment, such
rule is applied, which is a rule of universal application and almost in every civilized
legal system, this rule is being followed. The concept of res judicata evolved from
the common law system, and it rests on the overriding concept of judicial economy,
consistency, and finality of a civil action. It has roots under the Roman law also,
where a defendant could successfully contest a suit under the plea of 'excaptio res
judicata' meaning that 'one suit and one decision is enough for any single dispute'.
The doctrine of res judicata is conceived in the general interest or 'public policy'
which requires that all litigation must come to an end at a point of time. The
principle is also founded on justice, equity and good conscience, which requires
that a party who has once succeeded on an issue should not be harassed by the
multiplicity of proceedings involving the same issue.
12. In the present case, litigation regarding a property was initiated in which at
the initial point of proceedings; the appellant appeared by engaging a counsel.
Unfortunately, the counsel initially engaged, expired and thereafter two other
advocates were engaged by the appellant. Now the appellant denies the engaging of
the subsequent two advocates by submitting that their appearance in the litigation is
out of 'fraud and misrepresentation.' Nevertheless, such a plea of the appellant was
not appreciated, as his application under Section 12(2) of C.P.C. was refuted up to
this Court. Hence, the appellant remained unsuccessful in shuddering the verdict of
subordinate civil court even by filing an application under Section 12(2) of C.P.C.
The learned counsel for the appellant has shown his reservation regarding the ex
parte judgment and decree, which could not be helpful for him. According to a
well-known legal maxim, "Resjudicata proveritate accipitur", which means that 'a
judicial decision must be accepted as correct'. Hence, if the verdict of a court is
pricking a party, he may challenge it or must accept it. Be that as it may, the
judgment and decree, for the partition of the same property, is in the field.
Consequently, under the execution application of the decree, the said property was
put for auction and reportedly, the bids have been received. Now by filing another
suit regarding the same property between the same parties cannot be entertained
under the doctrine of res judicata. Under the provision of Section 11, C.P.C., an
explanation is given thereunder, for res judicata, according to which the following
ingredients should be present:-
(i) The matter directly and substantially in issue in the subsequent suit or issue
must be the same matter which was directly and substantially in issue either
actually (Explanation III of Section 11 of C.P.C.) or constructively
(Explanation IV of Section 11 of C.P.C.) in the former suit (Explanations I
and VII of Section 11 of C.P.C.);
(ii) The former suit must have been a suit between the same parties or between
parties under whom they or any of them claim. (Explanation VI of Section
11 of C.P.C.);

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(iii) Such parties must have been litigating under same title in the former suit;
(iv) The court which decided the former suit must be a court competent to try the
subsequent suit or the suit in which such issue is subsequently raised.
(Explanation II and VIII of Section 11 of C.P.C.);
(v) The matter directly and substantially in issue in the subsequent suit must
have been heard and finally decided by the court in the former suit.
(Explanation V of Section 11 of C.P.C.).
13. The appellant has taken the plea that the previous suit was decided ex-parte,
in which he could not participate. We have earlier explained that it will make no
difference when the judgment and decree are in field. Besides, non-appearance and
non-defending the partition suit is on account of a default of the appellant for which
he cannot be compensated now on any ground. We are of the view that such a plea
is also sufficient to debar him from filing another suit under the rule of constructive
res judicata, which is engrafted under Explanation IV of Section 11 of C.P.C. It is
an artificial form of res judicata, which provides that if a plea could have been
taken by a party in a proceeding between him and his opponent, he should not be
permitted to take that plea against the same party in a subsequent proceeding
regarding the same subject-matter'. No doubt, such rule is apparently contradictory
to the considerations of public policy on which the doctrine of res judicata is based,
but such a course is purposely adopted by the Jurists otherwise the doctrine of
finality of judgments would also be materially affected. We are of the candid view
that the appellant cannot agitate any new plea regarding the same subject matter
between the same parties in a fresh suit, which has already been decided in an
earlier suit, wherein now execution proceeding is pending. Whatever the grievance
of the applicant may be regarding the said property, the same can only be addressed
before the executing court as per the provision of Section 47 of C.P.C.
14. With the above observations, the instant appeal is dismissed with no order as
to cost along with all the listed/pending application(s).
SA/M-7/Sindh Appeal dismissed.

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