2006 PLP 1 (MLD)

SYED ZAHID HUSSAIN, J.

This is petition under section 114 and Order XLVII, rule 1 read with section 151 of the Code of Civil Procedure, 1908 by Khadim Hussain seeking review of judgment dated 1-6-2005 passed in I.C.A. No.54 of 2004 by which the appeal filed by the District Coordination Officer and two others was dismissed.

2. The learned counsel has been heard whose prime contention is that though the applicant had not assailed the judgment of the learned Single Judge yet in the Intra-Court Appeal (filed by the District Coordination Officer and others) he was one of the respondents and should have been issued notice before dismissing the appeal so that he could be heard or file cross objections.

3. After hearing the learned counsel we are not persuaded to accept his contentions. It is correct that the judgment of the learned Single Judge directly affected the petitioner herein, which judgment had been passed after notice and hearing him. By that judgment his appointment was declared as illegal. Surprisingly he did not assail the same, and acquiesced in the matter. The Intra-Court Appeal which was dismissed by us on 1-6-2005 had been filed by the Government officials only which was not even admitted to hearing. He was one of the respondent in that appeal. There is no known principle of law nor brought to our notice whereunder while dismissing an appeal in limine the respondent should necessarily be issued notice or heard. Admittedly the judgment of the learned Single Judge rendered in the writ petition was not assailed by him, (despite being aware of the same) he, therefore, can neither object to the dismissal of Intra-Court Appeal nor can be regarded as an "aggrieved person" as contemplated by section 114 and Order XLVII, rule 1 of the Code of Civil Procedure, 1908 to maintain the review petition. By virtue of the judgment of the learned Single Judge a determination of the controversy and lis was made which on account of non-filing of appeal by the present petitioner became conclusive and final. In Pir Bakhsh represented by his legal heirs and others v. The Chairman, Allotment Committee and others (PLD 1987 SC 145) distinction between judgment in rem and judgment in personam was highlighted by their Lordships. It was observed at Page 167 that "if he was party then the judgment of the competent Court as a plea is a bar or as an evidence conclusive between the same parties upon the same matter directly in question in another Court or in another action between the same parties in the same Court. In legal parlance this bar is known as estoppel by judgment or res judicata." Having come to the conclusion in the precedent case that it was determination of the grievances of the individuals and the judgment was in personam it was observed that "So long this determination was not set aside in appeal, the judgment remained in the field irrespective of the quality of determination as to whether it was incorrect on questions of fact or law. The rights of the parties thereunder assumed finality and took the colour of a "past and closed transaction". The rule culled out from Pir Bakhsh case is that a non-appealing party to the litigation is bound by the determination made by the Court. In the instant case the judgment of the learned Single Judge C not having been assailed by the petitioner the same attained finality qua him he is precluded now to challenge the same through the side wind or to object the dismissal of Intra-Court Appeal filed by someone else. The review petition in the circumstances is entirely misconceived and is dismissed accordingly. M.A.W./D-33/L?????????????????????????????????????????????????????????????????????????????????? Petition dismissed.