2001 PLP 569 (CLC)

4. Learned counsel for the petitioner in rebuttal submits that in earlier writ petition, the respondents admitted in para.1 that petitioner is owner of some land in Revenue Estate Dina Hardo Sheri. Similarly respondent No.3 in the earlier writ petition Director, Housing and Physical Planning admitted in reply of para.1 that petitioner is owner of some land in Revenue Estate in question. He further submits that respondent No.3 is not necessary and proper party. Petitioner filed suit for declaration against the Director Housing and Physical Planning Department and others on 1‑9‑1994 before the Civil Judge 1st Class, Rawalpindi to the effect that he was owner in possession of land in question and the respondents had no right whatsoever to interfere with his possession over the said land. The suit of the petitioner was dismissed vide judgment and decree, dated 30‑1‑1996 by the learned Civil Judge 1st Class; Rawalpindi. Petitioner being aggrieved filed Civil Appeal No.40 before the Additional District Judge, Rawalpindi on 28‑2‑1996 who accepted the appeal vide judgment and decree, dated 13‑5‑1996. The Director, Housing and Physical Planning Department and others did not challenge the aforesaid judgment before any higher forum that is why respondent No.3 admitted the ownership in the earlier round of litigation. Therefore, Director, Housing and Physical Planning is not proper and necessary party. He further submits that objection filed by the respondents before the Deputy Commissioner were dismissed and the respondents did not file any appeal and revision before the higher authorities of the Revenue side and also did not file any writ petition against the said order before this Court. He further submits that request of the learned counsel for the respondents that direction be issued to the Deputy Commissioner to decide the objections filed by the respondents is not maintainable in the eyes of law.

5. I have given my anxious consideration to the contentions of the learned counsel for the parties and perused the record myself. It is better and appropriate to reproduce the operative part of the earlier judgment, dated 2‑11‑1999 in Writ Petition No.3567 of 1999 to resolve the controversy between the parties:‑‑ (6) Learned counsel for the petitioner is agreeable to the proposal made which otherwise appears to be reasonable and proper in the circumstances... (7) In this view of the matter, the Tehsildar, Rawalpindi and Tehsildar, Islamabad are appointed to visit the site with notice to parties and in their presence, to demarcate the land comprised of Khasra No.19/2 (5 Kanals, 3 Marlas), 20/1 (6 Kanals, 15 Marlas), 22 (1 Kanal, 5 Marlas), 189/28 (2 Kanals, 14 Marlas) total measuring 15 Kanals, 17 Marlas, as detailed in the document annexed at page 23 of this writ petition. The two officials will prepare a joint report by spot inspection and will identify location of the land, and also as to whether any part of the same falls within 300 feet of the C.D.A. limits and if so, to what extent. In case, the report is to the effect that any part of the land of the petitioner falls within the area of C.D.A., the respondents will either acquire the land within one month, by completing the proceedings in accordance with law and making payment of compensation to the petitioner. If the C.D.A. will not be ‑interested to acquire the land, it will permit the petitioner to raise construction by granting necessary NOC subject to the rules. As regard the payment of compensation of 16 Marlas of land in Khasra No.28; already acquired, the petitioner can approach the functionaries concerned for payment of the compensation, already assessed, under the award." The aforesaid operative part reveals that the earlier writ petition was decided with the consent of the learned counsel for the parties which is binding and final between the parties. The principles of C.P.C. are applicable in writ petition as per principle laid down by the Honourable Supreme Court in Hussain Bakhsh's case PLD 1970 SC

1. Therefore, respondents have no authority to wriggle out from the operative part of this judgment on the well known principle of approbate and reprobate as per principle laid down by the Honourable Supreme Court in Ghulam Rasool's case PLD 1971 SC

376. The offer was made by the learned counsel for the respondents and accepted by the learned counsel for the petitioner and the aforesaid order was subsequently acted upon by both the parties. Therefore, both the parties could not resile from it, as is held by the Supreme Court of Pakistan in Saleem Ahmad v. Khushi Muhammad 1974 SCMR

224. The relevant observation is as follows:‑‑ "The High Court rejected both the contentions and held that there was no ground in law are in equity on which the petitioner could. claim the right of resiling from the solemn agreement which was entered into by him. Such an agreement was in the nature of a contract and one of the contracting parties could not be allowed to back out of it unless the contract was void or had become frustrated." It is better and appropriate to reproduce the material facts in chronological order to resolve the controversy between the parties:‑‑ (i) Petitioner filed suit for declaration against Director, Housing and Physical Planning Department and others before the Civil Judge 1st Class, Rawalpindi on 1‑9‑1994. (ii) The suit of the petitioner was dismissed by the learned Civil Judge 1st Class vide judgment and decree, dated 30‑1‑1996. (iii) Petitioner filed appeal before the Additional District Judge, Rawalpindi on 28‑2‑1996. (iv) Appeal was accepted vide judgment and decree, dated 13‑5‑1996. (v) Judgment and decree of the Court was not challenged by the Director, Housing and Physical Planning Department and others till date. (vi) Petitioner filed Writ Petition No.3567 of 1999 on 25‑2‑1999 before this Court. (vii) The writ petition was disposed of with the consent of the parties vide judgment, dated 2‑11‑1999. (viii) The Tehsildar concerned prepared demarcation report on 28‑12‑1999 which reveals that area 15 Kanals, 17 Marlas belonging to the petitioner falls within 300 feet limits of C.D.A. (ix) The petitioner filed an application before Chairman, C.D.A. for issuing N.O.C. on 24‑1‑2000. (x) The Deputy Commissioner submitted report in pursuance of the judgment, dated 2‑11‑1999 to the Deputy Registrar, Lahore High Court. (xi) The respondents filed objections before the Deputy Commissioner against the aforesaid report, dated 28‑12‑1999. (xii) The Deputy Commissioner dismissed the objections of the respondents vide order, dated 15‑6‑2000, . (xiii) Respondents informed the petitioner that respondents had moved the objection petition to the Deputy Commissioner and his application would be decided after the decision on the objections through letter, dated 6‑6‑2000. (xiv) Petitioner has filed present writ petition on 17‑7‑2000. The aforesaid facts reveal that the respondents did not file any appeal or revision against the order of the Deputy Commissioner dated 15‑6‑2000 till date before any higher authorities under the provisions of the West Pakistan Land Revenue Act, 1967. The contention of the learned counsel for the respondents that Deputy Commissioner be directed to decide the objections of the respondents has no force as per law laid down this Court in C.M. No‑741 of 1992 filed in Writ Petition No.382 of 1989 which was converted in to a petition under Article 199 of the Constitution and finally decided in the following terms:‑‑ "It was further stated that the petition was not maintainable and premature because the proceedings ,were already pending before the District Judge, Islamabad, in pursuance of the earlier consent order of the parties. The petition was challenged to be nothing more than abuse of process of law. The learned Judge in Chamber, however, converted the petition under section 151, C.P.C. into a writ petition by his order, dated 27‑2‑1993 and directed the petitioners therein to make payment of the compensation within one month of the order in respect of 326 respondents assessed by the C.D.A. minus 15% of the cost of ' Malba' ignoring the earlier controversial issue pending decision between the parties." The aforesaid judgment of this Court was upheld by the Honourable Supreme Court in Khuda Bakhsh's case 1994 SCMR

771. In case the request of the learned counsel for the respondents is accepted and the written statement be converted into writ petition. Even then the respondents are not entitled any discretionary relief on the well‑known principle he who seeks equity must come with clean hands but the respondents did not come with clean hands. Therefore, I am not inclined to exercise my discretion in favour of the respondents as per principle laid down by the Honourable Supreme Court in Nawabzada Ronaq Ali's case PLD 1973 SC

236. It is admitted fact that Deputy Commissioner submitted report to the Deputy Registrar of this Court vide letter, dated 15‑2‑2000 and intimation that objection petitions were dismissed by him vide letter, dated 15‑6‑2000 but the respondents did not agitate the matter before any higher authorities as respondents want to get benefit of their own misdeeds or in action. Since the matter has been finally decided in the Civil Court qua the ownership of the land in question between the petitioner and Director, Housing and Physical Planning. therefore, judgment of the Additional District Judge 13‑5‑1996 is final between the petitioner and Director, Housing and Physical Planning and others as per principle laid down by the Honourable Supreme Court in Pir Bakhsh's case PLD 1987 SC

145. On the well‑known principle of resjudicata. Therefore, Director, Housing and Physical Planning is not proper and necessary party. It is settled principle of law that judgment and decree of the Civil Court is precedent over the mutation. In view of what has been discussed above, this writ petition is accepted with no order as to costs and respondents are directed to issue NOC to the petitioners within two months from today. H.B.T./M‑406/L Petition accepted.