1986 PLP 1958 (MLD)

Mian M. Pervaiz Akhtar for Respondents. Date of hearing: 30th November, 1985. This petition in revision has arisen out of a suit brought by Muhammad Pehalwan against Ali Akhtar and seven others, in the Court of Civil Judge Lodhran to have it declared that suit property (43‑K 16‑M) was owned and possessed by him and the defendants had no right or interest therein. Further prayed for relief of perpetual injunction restraining impleaded defendants from claiming ownership of the suit property and causing interference with the plaintiffs possession over the suit property. Suit was dismissed on 30‑3‑1980. Plaintiff's appeal was also unsuccessful and was dismissed on 3‑6‑1981 by learned Additional District Judge, Multan. Dispute concerns land measuring 43‑K 16‑M which at one time was evacuee property. On 3‑12‑1964, it was allotted and confirmed in' the names of Maskeen and Mat. Sakina son and daughter of Chhota. Against allotment, an appeal was preferred by Sher Khan in the Court of Deputy Settlement Commissioner (Lands). Appeal succeeded on 6‑6‑1968 and in result, suit property was ordered to be allotted to Mat. Sakina. In consequence of the aforesaid order allotment of the suit property in favour of Maskeen and Mst. Sakina was made on 19‑6‑1968. Against the appellate order, a revision was filed before Settlement Commissioner (Lands) which was accepted and order of the appellate Court was set aside vide order, dated 16‑5‑1969. Ali Sher, Sher Khan and one Dost Muhammad filed a petition in constitutional jurisdiction (W . P . No.515/ R of 1969). it was dismissed in limine on 28-6‑1969. However, Letters Patent Appeal No.290 of 1969 was accepted on, 3‑5‑1975 and the case was remitted to the Settlement Commissioner for its decision afresh. In pursuance to the remand order of the High Court, revision petition of Maskeen, Mst. Sakina and Ch. Qamaruddin was accepted on 23‑10‑1976. Ali Sher and others again filed a writ petition in High Court which was dismissed in limine on 27‑1‑1977. They then sought leave to appeal from the Supreme Court of Pakistan (C.P.S.L.A. No.223 of 1977). This petition was also dismissed on April 4, 1979. Facts set forth in the plaint reveal that Ali Sher and Sher Khan sold the suit property to Dost Muhammad for Rs.16,000 vide sale Mutation No.19 sanctioned on 13‑7‑1968. A few days thereafter i.e. on 16‑7‑1968. Dost Muhammad further alienated suit property to Muhammad Pehalwan for Rs. 22,000 through a registered deed of sale. Plaintiff claimed ownership on the basis of this sale and assailed title of Qamaruddin son of Kapur Khan. Dost Muhammad is dead and defendants 1 to 5 are his Tegal hers. Except Qamaruddin none appeared, to contest the suit, Qamaruddin alone submitted his written statement and raised number of preliminary objections, besides controverting the allegations in the plaint, on merits of the cause. Apart from giving the full history of the previous litigation, it was pleaded by him that the suit in the form it was brought could not proceed, that the civil Court had no jurisdiction, that the plaintiff had no locus standi, that the defendant was entitled to the compensatory costs. On merits, he defended his title to the suit property. On 2‑12‑1978, Court raised following preliminary issues:‑. (1) Whether the suit is not maintainable in its present form ? OPD (2) Whether the plaintiff has got no locus standi to bring this suit? O.P D (3) Whether this Court lacks jurisdiction to try this suit ? OPD. Both the parties did not produce oral evidence and felt content with producing certain documents in evidence only. On behalf of the contesting defendant, application for rehearing of the revision petition Exh. D.1, copy of Register Haqdaran gamin 1972‑73 Exh. D.2, copy of order, dated 23‑10‑1976 of Settlement Commissioner, Multan Division Exh. D.3, copy of order, dated 25‑7‑1977 of Civil Judge Lodhran dismissing civil suit ‑as withdrawn Exh. D.4, statement of defendant's counsel, dated 25‑7‑1977 offering no objection to the withdrawal of suit subject to payment of costs Exh. D.5, were tendered in evidence. As against this documentary evidence, plaintiff relied on a copy of registered sale‑deed, dated 16‑7‑1968 Exh. P.1 and copy of register Khasra Girdawari Exh. P.2. From these two documents, plaintiff wanted to prove that he had purchased suit property and was in its actual cultivating possession. This was the entire evidence produced by the parties to prove aforenoted preliminary issues. Learned Civil Judge vide his order, dated 31)‑3‑1980 found all the issues in favour of contesting defendant and dismissed the suit. As observed above, appeal has also met with the same fate. Syed Sardar Shah Bokhari, Advocate appeared for the petitioner while contesting respondent who himself is a practising Advocate was represented by Mian M. Perwaiz Akhtar, Advocate. Parties have been heard and with their assistance, the trial Court's record has also been examined. Mr. Bokhari contended that the defendant had not pleaded bar of Order XXIII, Rule 1 (3) of the Code of Civil Procedure. It was submitted that in the absence of specific pleading and an issue raised between the parties, the. Courts below could not have noticed the bar urged in evidence and non‑suited the plaintiff. It was also submitted by him that in the absence of the plaintiff of the previous suit, and the statement of the counsel seeking withdrawal, it could not be said that the suit was withdrawn unconditionally. As against this, Mr. Perwaiz Akhtar strenuously contended that ‑the copy of order, dated 25‑7‑1977 Exh. D.4 provided sufficient material to hold that earlier suit brought by Pehalwan against Qamaruddin contesting defendant was in respect of the same subject‑matter and was withdrawn unconditionally without even asking for a formal permission from the Court to re‑institute the suit on the same cause of action. He has also invited may attention to decision of their Lordships of the Supreme Court, dated 4‑4‑1979, to submit that the dispute now raised in the suit has been adjudicated upon and finally settled between the parties. Counsel submitted that in view of this effective and binding adjudication by the highest Court in the realm, which this Court in its legitimate exercise of revisional jurisdiction is bound to take notice of, the plaintiff‑petitioner had no cause left for adjudication by the Courts below. Learned counsel also submitted that present petitioner who was a tenant in occupation of the suit property was ordered to be ejected by the forums provided under Land Reforms Regulations and is now before the Supreme Court of Pakistan. I have carefully examined the contentions raised by the counsel of the parties in the light of the trial Court's record. Record reveals that petitioner filed a suit against Qamaruddin in respect of the suit property and later withdrew it on 25‑7‑1977 vide Exh. D.4. It is correct that the copy of the plaint in the suit instituted earlier has not been tendered in evidence but that, to my mind, does not make a material difference. In the heading of the plaint, dispute raised in the earlier suit is sufficiently made clear. Apart from this bar to the entertainment of a fresh suit plaintiff has to face a much more formidable objection which is found in the decisions of August Supreme Court of Pakistan. It is not denied that Muhammad Pehalwan was a party before the Supreme Court. Decision of their Lordships of Supreme Court has put a final seal and decided, once for all, the rights of the parties which are subject‑matter of the present revision. Decision of Supreme Court which is clearly binding on the litigating parties and all Courts, leaves no live cause for the plaintiff to agitate. Plaintiffs counsel has failed to point out any provision of law which debars this Court to take notice of the decision of the Supreme Court and give full effect to it, on the rights of the parties. As against this, learned counsel for the respondent, time and again insisted that this Court in order to cut short the long drawn out litigation must take notice of this binding adjudication as a subsequent event. In my view, learned counsel for the respondent is on much stronger ground to raise this plea and I have no hesitation to agree with him. Refer Muhammad Akhtar, etc v. Abdul Hadi, etc. 1981 S C M R

878. Examination of the pleas raised leads to an irresistible conclusion that the suit instituted out of which the present revision had arisen was not only barred under Order XXIII, Rule 1 (3) of the Code of Civil Procedure but also by the decision o the Supreme Court which clearly operated as res judicata. As regards absence of specific pleading and an issue, suffice it to any that both parties were fully aware of the precise objections and consciously went to trial and led evidence. Petitioner, therefore does not seem to have been prejudiced in any way. On an overall examination of all the facts and circumstances I do not find that present case is of the type which should be entertained in revisional jurisdiction and the orders passed by the Courts below which are otherwise just and proper, be interfered with. In the result of what has gone before, I see no adequate reason to differ. Revision petition accordingly fails and is dismissed with costs. H.B.T. Revision dismissed.