WAQAR ALI RAHUJO vs DILEEP KUMAR Ss — 2025 CLC 1394 KARACHI-HIGH-COURT-SINDH

Fields are extracted from the reported citation and judgment text. Where a detail is not stated in the record, it is not shown.

WAQAR ALI RAHUJO VS DILEEP KUMAR Ss. 12 & 39---Civil Procedure Code (V of 1908), O.VII, R.11---Limitation Act (IX of 1908), S. 3 & First Sched. Art. 113---Suit for specific performance of agreement to sell---Limitation---Res judicata, applicability of---Rejection of plaint---Concept of res judicata with respect to the principle of rejection of plaint, interpretation of---Deciding the point of res judicata in application under O.VII, R. 7 C.P.C.---Scope---Plaint cannot be rejected summarily by applying principle of res judicata---Specific issue should be framed and evidence has to be led and suit should be decided on merits thereon---The appellants/plaintiffs (vendees) filed a suit seeking specific performance of a contract, cancellation of a sale deed, and permanent injunction claiming that their late father (original vendee) had entered into an agreement to purchase the land in 2010, followed by a fresh agreement with legal heirs---Despite part payment through cheques, the vendors (Respondents Nos. 1-7) allegedly sold the land to a third person (respondent No. 8) through a registered sale deed---The trial and appellate courts rejected the plaint on the grounds of res judicata and limitation, leading to the filing of the present petition---The main points for consideration in the present appeal were that (i) "Whether the suit was barred by res judicata; (ii) Whether the suit was barred by Art. 113 of Limitation Act, 1908"---Held: It stood admitted that the original vendee (father of appellants/plaintiffs) had previously instituted suit against the vendor seeking enforcement of the prior sale agreement---That suit was dismissed on merits, with specific findings that the agreement could not be proved and that vendee's possession was unlawful---Notwithstanding the reliance on the fresh agreement executed with legal heirs of the original vendor, the appellants (vendees) simultaneously grounded their claim on possession allegedly derived from the earlier transaction between their predecessor-in-interests---Application under O. VII R. 11(d) C.P.C. were to be decided as per the following principles: (i) To reject a plaint on the ground that the suit is barred by any law, only the averments in the plaint will have to be referred to; (ii) The defence made by the defendant in the suit must not be considered while deciding the merits of the application;(iii) To determine whether a suit is barred by res judicata, it was necessary that (a) the 'previous suit' was decided, (b) the issues in the subsequent suit were directly and substantially in issue in the former suit; (c) the former suit was between the same parties or parties through whom they claim, litigating under the same title; and (d) that these issues were adjudicated and finally decided by a court competent to try the subsequent suit; and (e) since an adjudication of the plea of res judicata required consideration of the pleadings, issues and decision in the 'previous suit', such a plea would be beyond the scope of O. VII R. 11(d), where only the statements in the plaint would have to be perused---Therefore, the issue of res judicata could not have been decided on an application under R. 11 of O. VII of C.P.C.---The reason was that the adjudication on the issue involved consideration of the pleadings in the earlier suit, the judgment of the Trial Court and the judgment of the appellate court---The suit should be decided on merits and the issue of res judicata should remain open and a separate issue on res judicata should be framed along with the other issues---Both the courts below erred in law and wrongly rejected the plaint on the point of res judicata as both went beyond the scope of O. VII, R. 11(d) C.P.C.---However, High Court left the point of res judicata open for the Trial Court to frame the issue upon and decide the same on the basis of pleadings and evidence of the parties---As far as the point of limitation for filing the suit was concerned, the examination of the agreement revealed that no fixed date was prescribed for the performance of the agreement, however, the determination of whether time was of the essence to the contract was a matter that could only be adjudicated once respondents Nos.1 to 7 (vendors) filed their respective written statements, as they were privy to the agreement---The findings of both courts below, which summarily concluded that the suit was barred by limitation and consequently rejected the plaint, appeared to be fanciful and disconnected from the record---The issue of limitation prima facie appeared to be mixed question of law and fact, which required evidentiary adjudication and necessitated a combination of scrutiny of questions of law and fact, which could not be decided hypothetically, cursorily, or without appreciating the starting point of limitation in case before non-suiting any person on the ground of limitation---Courts below erred in law by holding that suit was time barred---Impugned judgments of both the courts below were set aside and the matter was remanded to the Trial Court with directions to restore the suit to its original status by affording respondents Nos. 1 to 7 (vendors) an opportunity to file their written statements within stipulated period as provided under the law, however, High Court left open the points of res judicata and limitation for the Trial Court to decide the same after framing of the issues from the pleadings of the parties---Second appeal was allowed, in circumstances. Citation Name: 2025 CLC 1394 KARACHI-HIGH-COURT-SINDHBookmark this Case WAQAR ALI RAHUJO VS DILEEP KUMAR S. 11 & O.VII, R. 11---Res judicata---Principle and concept---Applicability---The concept of res judicata has evolved from English common law and since then it has been defined and interpreted through various judicial pronouncements ---The concept of res judicata is explained under S. 11 of the Code of Civil Procedure 1908---As per S. 11 of C.P.C. no court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between the parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court. Citation Name: 2025 CLC 1394 KARACHI-HIGH-COURT-SINDHBookmark this Case WAQAR ALI RAHUJO VS DILEEP KUMAR S. 3---Duty of courts to apply the law of limitation---The court can dismiss any suit, appeal or application filed after the prescribed period of limitation even if opposite party did not raise point of limitation as defence. Citation Name: 2025 CLC 1394 KARACHI-HIGH-COURT-SINDHBookmark this Case WAQAR ALI RAHUJO VS DILEEP KUMAR S. 12---Limitation Act (IX of 1908), First Sched., Art. 113---Suit for specific performance of agreement to sell---Limitation, computation of ---Whether time is of the essence of contract---Principle---Where a specific date for performance of the agreement is stipulated, the limitation period shall commence from such date, conversely, if no date is fixed, it shall begin when the plaintiff becomes aware that performance has been refused.

WAQAR ALI RAHUJO vs DILEEP KUMAR Ss — 2025 CLC 1394 KARACHI-HIGH-COURT-SINDH

Case information

Judgment text as reported

Other judgments reported in 2025 CLC