P L D 2004 Supreme Court 178 (PLP)

JAVED IQBAL, J.

This appeal is directed against the judgment, dated 28-9-1998 passed by the Peshawar High Court, Peshawar, whereby the civil revision petition preferred on behalf of petitioner has been dismissed and judgment/decree dated 13-3-)998 passed by learned District Judge has been kept intact.

2. Leave to appeal was granted by this Court vide order dated 18-6-1999 which is reproduced herein below for ready reference:-- "Leave to appeal is, inter alia, granted to consider whether the respondents having never objected to the decree passed against them on the point of res judicata through any cross-objections, were not debarred to object the decree thereafter."

3. After having heard the learned Advocate Supreme Court at length and perusing the entire record we are of the considered opinion that the appellant has been knocked out on the point of res judicata which at all has not been examined properly by the learned Courts below including the learned Single Judge of Peshawar High Court, Peshawar in Chambers whose esteemed view qua the point of res judicata is as under:-- "

4. I have gone through the statement of the petitioner recorded as P.W.5 on 15-1-1992 according to which Exh.P.W.3/XI is paper book of the Supreme Court of Pakistan and petition before the Supreme Court was withdrawn. Therefore, the finding given by this Court in R.F.A. 9 of 1971 has attained finality. This revision being devoid of force is dismissed in limine."

4. A careful scrutiny of the above reproduced portion of the judgment impugned would reveal that the question of `res judicata' around which the entire controversy revolves, determination whereof would have substantial bearing on the fate of the case has been dealt with in a cursory and casual manner without taking into consideration as to whether the provisions as contained in section 11, C.P.C. could have been made applicable to this case. It has been ignored by the learned Single Judge in Chambers that it is not every matter decided in a former suit that can be pleaded as res judicata in a subsequent suit but to constitute a matter res judicata the following prerequisites are essential as enumerated in `Explanations I to VI which are integral part of section 11, C.P.C. and enacted to make the doctrine of res judicata crystal clear,' which runs as follows:-- "Explanation I.-The expression `former suit' shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto. Explanation II.-For the purposes of the section, the competence of a Court shall be determined irrespective of any provisions as to a right of appeal from the decision of such Court. Explanation III.-The matter above referred to must in the former suit have been alleged by one party and either denied or admitted expressly or impliedly, by the other. Explanation IV.-Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. Explanation V.-Any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purposes of this section, be deemed to have been refused. Explanation VI.-Where persons litigate bona fide in respect of a public right 'or of a private right claimed to common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the person so litigating."

5. We are conscious of the fact that in R.F.A. No.9 of 1971 the controversy in question has been examined but it is to be seen as to whether the parties and subject-matter determined by means of R.F.A. No.9 of 1971 were the same or otherwise? An in-depth scrutiny of the record has not been made while ousting the petitioner by invocation of the doctrine of res judicata. We are conscious about the importance of judicial pronouncement between the parties as, it would be "in the interest of the public at large that a, finality should attach to the binding decisions pronounced by Courts of competent jurisdiction; and it is also in the public interest that individuals should not be vexed twice over with the same-kind of litigation. If these two principles form the foundation of the general rule of res judicata they cannot be treated as irrelevant or inadmissible even in dealing with fundamental rights in petitions filed under. Article

32. The binding character of judgments pronounced by Courts of competent jurisdiction is itself an essential part of the rule of law, and-the rule 'of law obviously is the basis of the administration of justice on which the Constitution lays so much emphasis. It is true that the general rule can be invoked only in cases where a dispute between the parties has been-referred to a Court of competent jurisdiction, there has been a contest between the parties before the Court, a fair opportunity has been given to both of them to prove their case, and at the end the Court has pronounced its judgment or decision. Such a decision pronounced by a Court of competent jurisdiction is binding between the parties unless it is modified or reversed by adopting a procedure prescribed, by the Constitution: [Emphasis provided] (AIR 1960 SC 1186, AIR 1951 SC 217, AIR 1953 SC 156, AIR 1956 SC 585, Daryao v. State of UP AIR 1961 SC 1457. No attention seems to have been paid to the object of the principle of res judicata as suggested by the expression itself is that finality should impart to judicial decisions and if a case is res judicata, it may not be re-opened so as to be adjudged again. In other words once a matter between the parties to a suit or proceeding is decided and the decision has become final either (i) I because no appeal lies or (ii) an appeal was taken or (iii) if taken, it was dismissed, none of the parties shall be allowed to canvass the same matter again in a subsequent suitor proceedings between the same parties. But for this curb on litigation it would become interminable, human nature being what it is. As a result of the application of this principle as embodied in section 11 of the C.P.C. all future litigation at any length between the parties must proceed on the presumption of correctness of the previous decision. (Muhammad Tufail v. Atta Shabbir PLD 1977 SC.220). While considering the doctrine of res judicata it was observed by this Court in case titled Wasi Ahmed Rizvi v. Federation of Pakistan PLD 1982 SC 20 as follows:-- "

15. Taking up the principle of res judicata first we find that it has been given a statutory form in section 11 of the Civil Procedure Code, 1908. One is, therefore, justified in concluding, by way of first impression, that it is more a matter of, procedure of Court than anything else. In the case of Sheoparasan Singh and others v. Ramnandan Prasad Narayan Singh and others AIR 1916 PC 78, Sir Lawrence Jenkins while delivering the judgment of the Board observed: `Their Lordships desire to emphasize that the rule of res-judicata, while founded on ancient precedent, is dictated by a wisdom which is for all time. `It hath been well said, `declared Lord Coke, interest republicae ut sit finis litium - otherwise great oppression might be done under colour and pretence of law' (6 Coke-.9a).

16. In the case of Kalipade de and others v. Dwijapda Das and others AIR 1930 PC 22, it was held that the terms of section 11, C.P.C. are not exhaustive.

17. Res judicata, it is observed in Corpus Juris Secundum "is a rule of universal law pervading every well-regulated system of jurisprudence, and .is put upon two grounds, embodied in various maxims of the common law; the one of public policy and necessity, which makes it in the interest of the State that there should be an end to litigation-interest republicae ut sit finis litium; the other, the hardship on the individual that he should be vexed twice for the same cause."

6. It hardly needs any elaboration that "party sought to be affected by the bar of res judicata should have notice of the point which is likely to be decided against him and should have an opportunity of putting forward his contentions against, such a plea". (Neelakanta v. Neelamma AIR 1952 Trav.-Co. 452).

7. As mentioned hereinabove the question of res judicata has not been examined in its true perspective causing serious prejudice against the petitioner. It is worth-mentioning here at this juncture that the grounds mentioned in the memo, of Civil Revision Petition No.322 of 1998 were not perused with care and caution, for example, Ground No.2 has not been adverted, to, which is reproduced hereinbelow for ready reference:-- "

2. The learned lower Appellate Court has dismissed the instant petitioner's appeal on the only legal ground of res judicata, which is covered by Issue No. 8 in this case. This Issue No. 8 had been decided in the trial Court in favour of the plaintiffs/petitioners. Thus there is divergence of opinion between the two Courts below. Besides: (a) In the other civil case between Muhammad Aslam Khan Khattak as plaintiff and Mustafa Kamal as defendant which was the Suit No.321/1 of 1969 on the basis of a pronote. In that case the defendant Mustafa Kamal had raised a plea in tertii when Master Khan Gul had not been a party in that case and also the defendants/respondents 1 to 3 were not parties in that case. Consequently, neither Master Khan Gul nor the instant defendants/respondents 1 to 3 were any parties in that case and also the defendants/respondents 1 to 3 were not parties in that case. Consequently neither Master Khan Gul nor the instant defendants/respondents 1 to 3 could be held bound in any decision in that case. (b) The learned lower Appellate Court's decision on Issue 8 is otherwise illegal and not binding in this case."

8. It has been overlooked that "in order to constitute res judicata in the legal sense it has to be established not merely that the decision emanated from a Court in the exercise of its judicial functions but also that the Court was competent to adjudicate in respect of that matter, the matter directly and substantially in issue in the subsequent suit had been directly and substantially in issue in the former suit, the former suit as well as the present suit had and have been between the same parties or between parties under whom they or any of them claim, such parties litigated under the same title in the former suit, the Court trying the former suit had been a Court competent to try the subsequent suit and the suit in which such issue is subsequently raised and the matter in issue in the subsequent suit had been heard and finally decided in the first suit. "Principles of Res Judicata, page 27 by Sheikh Abdul Haleem).

9. In sequel to above mentioned discussion this appeal is accepted and judgment impugned is set aside with the direction that Civil Revision Petition bearing No.322 of 1998 shall be treated as pending and decided afresh after affording proper opportunity to all concerned keeping in view the observations made hereinabove regarding the applicability of provisions as contained in section 11, C.P.C. There shall however, be no order as to costs. M.B.A./M-935/S Order accordingly.