1980 PLP 1105 (CLC)

(5) Relief.

4. The learned Sub-Judge decided issue No. 1 in favour of the appellants-plaintiffs and issue No. 3 went against the defendant-respon dent. However, in deciding issue No. 2, it was found that as the land in suit was not in possession of the plaintiffs, the suit merits dismissal which was accordingly dismissed.

5. The plaintiffs-appellants, feeling aggrieved by the finding of the learned Sub-Judge, moved are appeal before the learned District Judge the learned District judge, vide its order, dated 23rd April, 1974 vacated the judgment of the learned Sub-Judge and passed a decree in favour of the appellants-plaintiffs finding that the plaintiffs as owners retain the possession of the suit land. However, in second appeal before the High Court, as said earlier, the judgment of the learned District Judge was vacated and that of the Sub-Judge restored. Hence this appeal.

6. The learned counsel for the respondents raised a preliminary objection the appeal being time barred is incompetent and that the impunged judgment passed by the High Court could only be assailed by way of a petition for leave to appeal and not by appeal under the provision of section 42 of the Interim Constitution Act, 1974.

7. To appreciate the point, it would be beneficial to know the state of law prevalent at the time of the institution of the appeal before this Court. The learned Judge in the High Court decided the appeal on 6th, July, 1975 when Judicial Board Act, was holding the field and under its! provisions an appeal to the Judicial Board, after getting a fitness certificate from the High Court under section 14 (2) of the Judicial Board Act was only competent. The plaintiffs-appellants applied for the certificate before the High Court on 24th July, 1975. The certificate was issued on 13th November, 19?5 -m-,,A the appeal was filed before the Supreme Court on 8th Decembers, 1975 well within time under the provisions of the Judi cial Board Act.

8. It so happened that on 7th November, 1975 section 42 of the Azad Jammu &. Kashmir Interim Constitution Act was substituted by fresh provision. By this substitution a certificate for filing an appeal before the Supreme Court was a condition precedent in cases where some substantial question of interpretation of a constitutional provision was involved and in all other cases a petition for leave to appeal was to be. moved. This amendment, it is stated, was notified in the Government Gazette on 41st December 1975.

9. From the above data, it would appear that initially the appeal filed before Supreme Court on the basis of the fitness certificate issued on 13th November, 1975 was competent. During the pendency of the appeal, the law was changed, by virtue of which; a petition for leave to appeal only was competent in the present case. How the appellant in these circumstances can be penalized for laches for no fault on his part. If we do so it would frustrate the administration of justice. The Appellants had been :n good faith prosecuting their case and it is interesting to note that even the High Court being not conscious of the changed law, issued the certificate for filing the appeal. In view of the circumstances detailed above, we condone the delay, treat this appeal as petition for leave to appeal and convert it to an appeal.

10. The learned counsel for the appellants seriously challenged the observations made by the learned Single Judge to the effect that :- "There is a bulk of evidence oral as well as documentary adduced by the defendant that the land in dispute has been in full enjoy ment of the defendant since the times of his grandfather and no rent even was ever paid to the proprietor of the land. Abdur Rehman and his forefathers appear to have held the land in dispute treating the same as their own property." He wants expungement of this observation on the ground :- (a) That this observation is uncalled for and has no bearing on the controversial issue of possession of the suit land ; (b) That issue No. 3, pertaining to adverse possession, decided by the trial Court against defendant has attained finality as the decision has not been challenged by the defendant before the District Judge or High Court by way of cross-objections or appeal ; (c) That if the observation made by the learned Judge in the High Court remains intact, an inference about the adverse nature of the possession of the respondent-defendant may be drawn which may open a new gate for fresh litigation.

11. As against this, Qazi Abdul Ghafoor the learned counsel for the respondent-defendant maintained that on the facts of the case, the adverse possession is proved and defendant-respondents can defend the decree even on issues decided against him. We are not impressed by this argument.

12. This issue, in our view, has attained finality and cannot be reopened. It was not challenged by way of an appeal or cross-objections before the District Judge or even before the High Court when defendant respondent was appellant and the finding of the learned District Judge in favour of the appellants was challenged. The applicability of the princi ple of res judicara in view of the general consideration relating to the administration of justice, applies with full force in this case for giving finality to the litigation and avoiding injustice in vexing a person twice in respect of a final matter. There is no technical hurdle and defined limits in the application of res judicata in such cases. It will be governed by conisderation under which the matter had been determined. It is well settled that what is `res judicata'. is the decision and not the reason thereof. The decision in this case, about adverse possession, even if wrong on the facts of the case, as contended, cannot be reopened for its having attained finality.

13. Qazi Abdul Ghafoor the learned counsel then maintained that under Order XL1, rule 33, C. P. C. failure to file an appeal is no justifica tion to pass an appropriate finding on the facts of the case. The terms of rule 33, Order XLI, C. P. C. are wide enough to enable an appellate Court to pass decree according to the facts of the case. But such a course is only open when the appellate Court considers it necessary to allow within the framework of the suit. Here in this case, the determination of they question of adverse possession, which has no direct bearing for issuance of permanent injunction and which -has attained finality, cannot be reopen ed under Order XLI, rule 33, C.P.C. General proposition extracted from precedent cases is that such powers must be applied with discretion where interference is required `to adjust the right of the parties in accordance with justice, equity and good conscience' and not otherwise. In view of the above, the arguments of the learned counsel for the respondent stand repelled.

14. The learned Judge in the High Court, it appears, has inadver. tently made the above-mentioned observation which may open a gate for further litigation on the point of adverse possession which has attained finality. The observations, in our view, is nothing but obiter dicta and have no relevancy for the decision of the case which only hinged in deciding as to who amongst the parties was in possession of the land.

15. The next question which requires determination is whether the Supreme Court has got power to expunge this observation. We are of the view that when a case is made out for interference by C this Court, by virtue of its plenary power, it can pass all such directions, orders and decrees as may be necessary for doing complete justice. Section 42-A subsection (1) of the Azad Jammu & Kashmir Interim Constitution Act, 1974 reads :- "(1) The Supreme Court shall have powers to issue such directions, orders or decrees as may be necessary for doing complete justice in any case or matter pending before it including an order for the purpose of securing the attendance of any person or the discovery or production of any document."

16. These provisions are identical with those contained in Arti cle 187 sub-clause (1) of the Pakistan Constitution of 1973 as well as with the provisions of the previous constitutions. It was observed by Mr. Justice Muhammad Munir, C. J. (as he then was) in P L D 1958 S C (Pak.) 333 (348) that :- . "Once a case for interference of the Court has been established, it will have to consider what relief is to be given to the appellant in order to meet the ends of justice."

17. It would thus follow that the Supreme Court may, in the circum stances of a case, in exercise of its powers under section 42-A, expunged and for passages appearing in the judgment of the High Court. Therefore, in view of the inherent apprehension of the appellant to the effect that the observation may be termed to have undone the judgment of the learned Sub-Judge on the issue of adverse possession and if it remains a part of the judgment it may open a way for further litigation the above-quoted passage from the judgment of the High Court stands expunged and it would be deemed as to have been never made.

18. Mr. Basharat Ahmed Sheikh, the learned counsel next argued that the learned Judge in the High Court failed to appreciate the evidence in its true perspective and was erroneous to say that the possession of the suit land lay with the defendants-respondent. We regret we cannot agree with him. The conclusion arrived at by the learned Single Judge that the possession of the suit land was retained by defendant is based on well-reasoned out analysis of evidence on record. Nothing of the sort as misreading or non-reading of the evidence could be brought to our notice. In fact, the statement of Sultan Muhammad a witness examined, by the appellants-plaintiffs puts a stamp of truth to the fact that the possession of the suit land lay with the defendant. For the view we have taken in the matter, the appeal partly succeeds to the extent of expungement of the passage reflected above appearing in the judgment of the High Court. No order as to costs. M. Y. M. Appeal partly succeeds.