Res Judicata and Framing of Additional Issues

Res Judicata and Framing of Additional Issues Case Laws Civil Law Constitutional Law Framing of Issues Knowledge - Civil Law Knowledge - Constitutional Law Lahore High Court Litigation & Arbitration Res Judicata Solutions - Civil Law Solutions - Constitutional Law Mr. Justice Shahid Waheed in his judgment has decided the issue regarding principle of Res Judicata and framing of additional issues in Writ Petition No. 13135 of 2014.

1. This constitutional petition calls into question the orders of the learned Courts below whereby petitioners’ second application under Order XIV Rule 5 CPC for framing of additional issue was dismissed.

2. This petition arises from three consolidated suits which are related to the land measuring 986-Kanals 16-Marlas situated in village Fateh fang Singhwala, Tehsil & District Lahore. The suit land which was owned by the predecessors of the petitioners stood transferred in the name of respondents No.1 to. 6 vide sale mutations. No.125, 126 and 127. The said three mutations were attested, on 16.03.1971 and were challenged through three separate declaratory suits which were instituted on 04.09.2003. The respondents contested the claim set up in the plaint inter alia pleading that the predecessors of the petitioners appointed Shah Nasir Hussain as general attorney vide registered general power of attorney dated 30.01.1962; and, that the said attorney sold the suit land to them vide agreement dated 15.01.1971 and on its basis mutations were sanctioned.

3. On pleadings of the first suit challenging mutation No. 125 dated 16.03.1971, the learned Trial Court vide order dated 04.05.2005 framed following issues:

1. Whether the suit is hopelessly barred by limitation? OPD

2. Whether this Court has no jurisdiction to try the instant suit? OPD

3. Whether the suit is not maintainable in its present form? OPD

4. Whether the suit is barred under Section 42 and 56 of the Specific Relief Act, therefore, the plaint is liable to be rejected under Order 7 Rule 11 CPC? OPD

5. Whether the plaintiffs are estopped by their conduct and by record to file the instant suit? OPD

6. Whether the plaintiffs have not come to this Court with clean hands? OPD

7. Whether the suit is frivolous and vexatious and the defendants are entitled to special costs under Section 35¬A CPC? OPD

8. Whether the suit is incorrectly valued for the purposes of court-fee and jurisdiction, if so, what is its correct valuation? OP. Parties

9. Whether the plaintiffs are entitled to get a decree as prayed for? OPP

10. Relief?

4. Subsequently on 09.05.2005 the petitioners filed an application under Order XIV Rule 5 CPC for framing of additional issues (hereinafter called the first application). It was pleaded in the application that since the respondents/defendants No.1 to 6 were relying upon forged and fake agreement to sell and power of attorney, the following additional issues were required to be framed (hereinafter called the first proposed issues):

i. Whether the plaintiffs/Predecessor in interest Shah Nasir Hussain sold the land in dispute in favour of the defendants and received consideration thereof? OPD

ii. Whether valid and lawful mutation of sale dated 16.03.1971 was duly entered and sanctioned with respect to the alleged sale relied upon by the defendants?0PD

iii. Whether the plaintiffs/Predecessor in interest Shah Nasir Hussain entered into an agreement to sell dated 15.03.1 in favour of the defendants? OPD

iv. Whether late Shah Nasir Hussain obtained alleged registered power of attorney dated 29.01.1962 in his favour from his brothers namely Shah Badar Hussain and Shah Sadar Hussain as claimed by the defendants and whether the said power of attorney could have been got registered in Sindh with respect to the land in dispute situated at Lahore? OPD

5. The first application was resisted. The learned Trial Court, however, vide order dated 02.12.2005 partially accepted the first application and framed the following additional issue i.e. issue No.8-A:

“8-A Whether the oral sale as well as mutation No. 125 sanctioned on 16/03/1971 and the entries made in the revenue record on the basis of these mutations are based on fraud, and are without consideration, void ab initio and ineffective on the rights of the plaintiffs? OPP”

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