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Revisional Application No.34 of 1973, decided on 26th January, 1987.

‑‑S. 11‑‑Res judicata, plea of‑‑Determination of‑‑Jurisdiction of Court‑‑In considering question of res judicata, Court, held, should not be concerned with correctness or otherwise of judgment rendered‑‑A finding rendered on a fact in issue by competent Court in earlier proceedings should be regarded as having been finally decided. in subsequent litigation raising same issue between same parties‑‑Even if a mixed question of fact and law had been determined between same parties, that also could not be questioned in subsequent proceedings‑‑Where decision was on a question of law, viz, interpretation of, a statute, that would also operate as res judicata, in a subsequent proceedings between same parties where cause of action was also same.

‑‑‑S. 1T‑‑Principle of res judicata‑‑Nature of‑‑Basic principle underlying S.11, C.P.C. is that once parties had undergone adjudication of issue in a suit, that would be final as between them. [p. 19781 B

Hassan A. Shaikh for Petitioner.

Syed Ansar Hussain for Respondents.

Date of hearing: 21st December, 1986.

The plaintiff in suit No.8 of 1968 on the file of the Joint Civil Judge, Naushero Feroze, Is the petitioner in this Civil Revision Petition. The property bearing shop No.t‑A‑115 and I‑A‑155/A, Daulatpur Taluka Moro is in dispute. In application No.3 of 1962 the petitioner prayed for an order of eviction against the respondent No.4 herein on the ground of default and personal requirement. The Rent Controller directed the respondent No.4 herein to deposit rent. As the respondent No.4 did not comply with the tentative rent order, his defence was struck off by an order dated 7‑8‑1962. The petitioner was put in possession of these two shops in pursuance of the eviction order on 30‑8‑1962. Mst. Ghafooran and the respondents 1 to 3 herein filed Suit No.128 of 1962 against the petitioner and the respondent No. 4 herein. The petitioner resisted the suit. The respondent No.4 filed written statement and stated therein that the shops in dispute were in possession of the petitioner and he had nothing to do. The said suit was for restoration of possession of the shops in dispute and suit for declaration that the eviction order was null and void and was not binding on them. On 31‑10‑1963 the learned Civil Judge, Naushero Feroze negatived the claim of the petitioner that he obtained possession of the disputed shops from the respondent No.4 herein and accepting the case of Mst.Ghafooran and respondents 1 to 3 herein, granted the declaration and granted recovery of possession of the disputed shops to them. Aggrieved by the decree granted in favour of Mst. Ghafooran and respondents 1 to 3 herein in Suit No.128 of 1962, the petitioner preferred an appeal in C . A .66 of 1963 to the District Judge, Nawabshah. By judgment dated 18‑12‑1964 the appeal was dimissed on the ground that the Controller clutched a jurisdiction which the law had never conferred on him and the proceeding was ab initio void. In suit No. 43 of 1965, the petitioner prayed for a decree that Mst.Ghafooran and the respondents 1 to 3 herein were not entitled to possession of the shops in dispute. Mst. Ghafooran and the respondents 1 to 3 herein pleaded that the suit was barred by‑ the principles of res judicata. The learned Joint Civil Judge, Naushero Feroze nagatived the claim of the petitioner and accepting the case of Mst.Ghafooran and the present respondents 1 to 3 dismissed the suit on the ground that the suit was hit by the principles of res judicata. Aggrieved by the decree in favour of Mst. Ghafooran and the present respondent 1 to 3 in Suit No. 43 of 1965, the petitioner herein preferred an appeal in C.A.31 of 1966 to the Additional District Judge, Nawabshah. By judgment dated 31‑10‑1966, the appeal was dismissed on the finding that the suit was not maintainable and that it was barred by the principles of res judicata. The petitioner thereafter served notice dated 16‑12‑1966 under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, upon Mst. Ghafooran and the respondents 1 to 3 herein and the petitioner also served notice under section 106 of the Transfer of Property Act and thereafter filed Suit No. 8 of 1968. The case as set out in the said suit is that present respondents be evicted from shop No.lA/115A and the petitioner put in possession thereof. The petitioner also prayed for a declaration and injunction. The respondents contested the suit and denied that they were in possession of any of the premises belonging to the petitioner. The case of the respondents is that the petitioner demolished the structure of both the premises and amalgamated into one shop. On the pleadings of the parties the trial Court framed the following issues:‑

"(1) Whether the suit is barred by res judicata

(2) Whether the defendants are the tenants of the Plaintiff

(3) Whether the suit is .bad for non‑joinder or necessary parties

(4) What should the order be."

On 3‑7‑1969 the learned Joint Civil Judge, Naushero Feroze negatived the claim of the petitioner and held that the suit was barred by the principles of res judicate. Against the dismissal of the suit, the petitioner herein preferred an appeal No.38 of 1969 to the Additional District Judge, Nawabshah. The learned Additional District Judge on a consideration of the scope and effect of the prior adjudications found that all the questions relating to the shops in dispute had been conclusively settled and adjudicated upon in suit No.128 of 1962 and Suit No. 14 of 1965. Finally, the learned Judge concluded that the prayers 1 to 3 in Suit N.8 of 1968 were barred by res judicata. Aggrieved by the judgment dated 3‑7‑1969 the petitioner filed appeal being C.A. No. 38 of 1969 before the District Judge, Nawabshah who by his judgment dated 30‑9‑1972 dismissed the appeal and affirmed the finding of the trial Court. It is the correctness of that judgment which is challenged in the Civil Revision Petition herein.

The learned counsel for the petitioner contended that judgment in Suit No.8 of 1968 is based on misapprehension and erroneous view of law and exercised its jurisdiction with material irregularity. In answer to this contention, the learned counsel for the respondents submitted that it is not as if the Court had no jurisdiction at all to decide the questions regarding the possession of the shops in dispute but that it had proceeded to exercise the jurisdiciton, which it had, to adjudicate on those matters and that cannot be equated to a case of assumption of jurisdiction by a Court which it did not otherwise have and the exercise thereof, resulting in an erroneous decision, not operating as res judicata.

I am of the view that in considering the question of res judicata, the Court is not concerned with the correctness otherwise of the judgment rendered. A finding rendered on a fact in issue by a competent Court in earlier proceedings should be regarded as having been finally decided in a subsequent litigation raising the same issue A between the same parties. Even if a mixed question of fact and law had been determined between the same parties, that may not also be questioned in the subsequent proceedings. Where the decision is on a question of law, namely, interpretation of a statue, that would also operate as res judicata in a subsequent proceedings between the] same parties where the cause of action is also the same. In this case, the respondents 1 to 3 and Mst.Ghafooran sought a declaration in Suit No.128/62 that the eviction order, dated 7‑8‑1962 was null and void and the Rent Controller had no jurisdiction to entertain the eviction application. The Court decreed the suit and ordered the petitioner to hand over possession of the disputed shops to them. The petitioner instead of handing over possession of the disputed shops himself filed Suit No.14 of 1965 wherein he sought a declaration that the respondents 1 to 3 and Mst. Ghafooran had never remained in possession of the shops and also had made default in payment of arrears of rent and they were not entitled to possession. The trial Court came to the conclusion that in the previous suit it was decided that the petitioner was put in possession of the shops in dispute by the Controller under illegal orders and it was passed without having jurisdiction. In this case, the shops in dispute were the subject‑matter of the earlier proceedings and the Courts which decided those questions had jurisdiction to decide them. The question decided were essentially factual. Even the questions decided earlier by the Courts would be mixed questions of law and fact and I am of the view that such a mixed questions of law and fact determined in the earlier proceedings between the same parties may not, for the reason that it had been decided in an earlier proceedings, again be questioned. Even on the assumption that it was an erroneous decision, the parties should be geld to be bound by the same.

The basic principle underlying section 11, C.P.C. is that once the parties have undergone adjudication of an issue in a suit, that Mould be final as between the parties. The present respondents 1 to 3 and Mst.Ghafooran claimed that the order of eviction was null and void and the possession of the shops in dispute be handed over to hem. Once they obtained such a decree it is necessarily decided between the same parties that the respondents 1 to 3 were within heir rights to claim the possession of the shops in dispute. Even the petitioner himself filed earlier suit and sought a declaration that the possession should not be delivered to the respondents 1 to 3. This suit was dismissed. This issue or this position being conclusive and binding between the parties, the petitioner can no longer claim in his suit that he is entitled to get premises bearing No.l‑A/115. Under these circumstances, the Courts below were right in their conclusion that the prior adjudication in Suit No.128/63 and Suit No.14 of 1965 operated res judicata and would preclude the petitioner from contending that possession of the premises bearing No.l‑A1115 should be handed over to him contrary to the earlier adjudication. In view of this, it is really unnecessary to consider any other question. Consequently, the judgments and decrees of the Courts below are confirmed and the Civil Revision Petition is dismissed. There will be, however, no order as to costs.

H.B.T./B‑21/K Petition dismissed.

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