Law:

Section:

Civil Procedure Code, 1908 (V of 1908)-- ----O.IX, Rr. 8 & 9--Declaratory suit--Dismissal of suit for non prosecution--Dismissal has attained finality because same has not been challenged or set-aside--Respondent/plaintiff filed another declaratory suit repeating prayer made in earlier suit--Decreed by trial Court--Assailed--In light of dismissal of earlier suit, present suit should also have ben dismissed--However, trial Court proceeded to frame issues on which parties led evidence--Issue relating to res-judicata was framed but was decided against petitioners/defendants on ground that earlier suit filed by respondent/plaintiff had not been finally adjudicated--Dismissal of earlier suit was made u/O IX R. 8 C.P.C. which showed that defendant was present--Provisions of O. IX, R. 9 CPC are attracted in case--As a consequence, respondent/plaintiff were precluded from filing a second suit on same cause of action, even if no adjudication on merits had been made in earlier suit--Allottee and thereafter present petitioners/ defendants as his successors consequence, respondent/plaintiff were precluded from filing a second suit on same cause of action, even if no adjudication on merits had been made in earlier suit--Allottee and thereafter present petitioners/defendants as his successors-in-interest are in continuous possession and beneficial enjoyment of disputed shop, together with roof on top of it--Such circumstance is conclusively established through proceedings initiated against petitioners--Certain construction had been carried out by allottee allegedly in violation of a restraining order--Petition was dismissed. Judgment The petitioners/defendants impugn the appellate judgment and decree dated 23.4.1998, whereby a declaratory suit filed by Muhammad Saleem respondent/plaintiff seeking permanent injunction by way of consequential relief has been decreed. 2. Although the record of this case is voluminous, the facts necessary for its disposal are simple. The property in dispute is comprised in Khasra No. 319. It is not disputed between the parties that the property was composite in nature comprising of a shop and a residential portion. Initially, the entire…

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