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Civil Revision No. 2019 of 1986, decided on 26th October,1986.

‑‑‑Ss. 11 & 115 & 0. VII, R. 11‑‑Locus standi to file suit‑‑Concurrent finding‑‑ Revisional jurisdiction, exercise of‑‑Petitioners having no right in suit property of their own either as claimant or otherwise, were not party to previous suit between respondent and father of petitioners in which consent decree passed in favour of respondent on admission of father of petitioners had attained finality‑‑Concurrent findings of two Courts below in subsequent suit filed by petitioners against respondent that petitioners had no locus standi to challenge consent decree in favour of respondent and their suit was liable to be dismissed under 0. VII, R. 11, C.P.C., held, could not be challenged in revision before High Court.

‑‑‑S. 11 & 0. II, R. 2‑‑Plea not taken in previous suit‑‑Effect in subsequent suit‑‑Prayer which was left out in previous suit or application, held, could not be made in subsequent suit or application in view of bar under 0. 11, R. 2 and under S. 11 of Civil Procedure Code, 1908.

Ch. Muhammad Rafique Khan for Petitioners.

This revision petition arises out of judgment and decree, dated 25‑5‑1985 of the learned Civil Judge, Gujranwala whereby he dismissed the suit of the petitioners and out of the judgment, dated 19‑5‑1986 of the learned Additional District Judge, Gujranwala whereby he dismissed the appeal filed by the petitioners.

2. I have perused the record and have heard the arguments. Mst. Anwar Sultan filed a suit against Abdul Rehman Khan father and predecessor‑in‑interest of the petitioners for a declaration that she was full owner of the land in dispute. Abdul Rehman Khan defendant put in appearance in that case on 9‑2‑1973. He put in written statement confessing judgment. The learned trial Court also recorded his statement on his oath on the said date and he accepted the claim of plaintiff Mst. Anwar Sultan. The case was then adjourned to 12‑2‑1973. The statement of Abdul Rehman was once again recorded on that date and he reiterated that he admitted the claim of the plaintiff. Accordingly a consent decree was passed on that very date, i.e. 12‑2‑1973. In 1982 the present petitioners filed an application before the learned trial Court under section 12(2) of the Code of Civil Procedure, 1908 praying that the said decree, dated 12‑2‑1973 may be set aside as the same had been obtained by misrepresentation and fraud, etc. Luckily Abdul Rehman Khan was then alive. He filed written statement through which he contested the application of the petitioners and he clearly stated that the decree against him was not based on fraud or misrepresentation. The learned Civil Judge, Gujranwala dismissed the application vide order, dated 6‑11‑1982 mainly on the ground that the petitioners had no locus standi to. challenge the decree as the land belonged to their father and they themselves were not claiming any ownership in the same. The petitioners filed a revision petition which was dismissed by the learned District Judge, Gujranwala vide order, dated 26‑9‑1983. The petitioners then filed Writ Petition No. 4331 of 1983 which was dismissed in limine by my learned brother Lehrasap Khan, J. vide order, dated 15‑10‑1983. The petitioners then started another round of litigation and filed a civil suit on 21‑11‑1983 claiming ownership of the land in dispute. The suit was rejected on 25‑5‑1985 under Order VII, Rule 11, C.P.C. The petitioners filed an appeal which was dismissed by the learned Additional District Judge vide order, dated 19‑5‑1985. Suffice it to say that in these rounds of litigation, which is apart from the litigation before the Settlement Authorities, the property has remained the same.

3. Learned counsel for the petitioners has argued that the subject‑matter of the previous litigation was different than the one raised in the suit in which the two impugned judgments have been passed. The petitioners have no right in the property of their own 1987 Abdul Habib v. Mst. Anwar Sultan 897 (Muhammad Asadullah, J) either as claimants or otherwise. The learned Civil Judge in his judgment, dated 25‑5‑1985 has after discussing all the facts of the case come to the conclusion that the petitioners have no locus standi to file the case. This view was confirmed by the learned Additional District Judge in his judgment, dated 19‑5‑1986. A more clear judgment on this point is that of the learned Civil Judge 1st Class, Gujranwala which is, dated 6‑i1‑1982 through which the application filed under section 12(2), C.P.C. was dismissed. It has been pointed out therein that in the life time of their father, Abdul Rehman Khan, the petitioners had no right to challenge the consent decree passed on 12‑2‑1973. The said Abdul Rehman Khan died somewhere in 1982 after filing the reply to the said application filed under section 12(2), C.P.C. His death did not make any difference because it was the father who was to allege that the decree was obtained through fraud and misrepresentation. Instead of doing so he refuted the allegation of his sons the petitioners in that respect and conceded that the decree was rightly passed. This means that he admitted the ownership of Mst. Anwar Sultan the plaintiff of that case. So far as the ownership of the property or the rights in property are concerned there has been no change after the said application under section 12(2), C.P.C. stood finally dismissed with the dismissal in limine of the said writ petition. Mere change in the prayer of the suit will not change the nature of the suit or the litigation. Therefore, the petitioners had no locus standi to challenge the ownership of Mst. Anwar Sultan which had not been challenged by the father of the petitioners and which had instead been admitted and conceded by Abdul Rehman Khan.

4. Apart from that under Order II, Rule 2, C.P.C. a prayer which is left out in a suit or application cannot be made in a subsequent suit or application. Again, the principles of res judicata bar the raising of a plea which could be raised in the earlier round of litigation. Explanation IV of section 11, C.P.C. clearly bars the raising of a matter in a subsequent suit (or application) which might or ought to have been made a ground of defence or attack in the former suit (or application). Therefore, the case of the petitioners would have been barred under the principles of rest judicata and under section 11 read with Order II, Rule 2, C.P.C. even if the petitioners had any locus standi to file the case.

5. In the nutshell the petitioners have no independent right or interest in the property in dispute. Their father conceded the ownership of Mst. Anwar Sultan and even if she was not entitled to the ownership of whole of that land it would mean that Abdul Rehman Khan had relinquished his rights, if any, in favour of Mst. Anwar Sultan. The decree passed against him has attained finality and the petitioners cannot challenge the same even through a separate suit. The revision petition is dismissed in limine.

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