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Constitutional Petition No. S‑141 of.1986, decided on 18th January, 1987.
‑‑‑S. 5‑‑Constitution of Pakistan (1973), Art.199‑‑Principles of res judicata‑‑Re‑framing and retrial of issue already adjudicated upon‑Competency of‑‑Issue already framed and finally adjudicated upon by Family Court in earlier suit for restitution of conjugal rights filed by husband, held, could not be reframed and retried in subsequent suit for maintenance filed by wife.
Suleman Habibullah for Petitionar.
Mirza Waqar Huesain for Respondent (on pre‑admission Notice).
Date of hearing: 18th January, 1987.
The case is today fixed only for Katcha Peshi. However, as the respondent No.1 has appeared and after hearing the learned counsel for the parties I am of the view that this petition can be disposed of finally. I admit the same to regular hearing and dispose of as follows:‑
The petitioner has challenged the trial of the following issue in a maintenance suit instituted by respondent No.1 which is presently pending before a Family Court at Karachi:
"Whether the defendant No.1 is living separately from the plaintiff without any lawful excuse "
It is an admitted position that prior to the institution of the Family Suit No.7186, an earlier suit No. 1468/81 was instituted by the petitioner against the respondent No. I which was decreed for restitution of conjugal rights. It is not disputed that in the above suit one of the issues tried by the Family Court was "whether the defendant No.1 (respondent No.1) is living separately from the plaintiff without any lawful excuse" . This issue was decided in favour of the petitioner and the suit for restitution of the conjugal rights was decreed in consequence of the finding in favour of the petitioner. Learned counsel for the petitioner contends that in view of the decision in the above suit this issue cannot again be tried in the subsequent suit for maintenance which is presently pending before the Family Court Karachi West. It is not disputed by the learned counsel for the respondent that the suit instituted by the plaintiff against the respondent No.1 for restitution of conjugal right was decreed and that one of the issues decided in the above suit was identical to the issue referred to above, framed now in Suit No.7/1986. In view of the above‑admitted position there can be no doubt that the issue referred to above, framed by the Family Court in the maintenance Suit No.7/1986 cannot be tried in view of the decision on this issue in the earlier Suit No.1468/81. I accordingly declare that framing and trial of the above issue in Suit No. 7/1986 is barred and without lawful Authority. However, the above decision will not in any manner, have effect on the trial and competency of other controversies in the suit, if it is otherwise competent in law. There will be no order as to costs.
H.B.T./G‑25/K Order accordingly.
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