1988 PLP 1807 (CLC)

Syed Riaz Ahmad Pirzada for Petitioner. Ch. Mohammad Akram for Respondents. Date of hearing:22nd May, 1988. This order shall also dispose of connected Civil Revision No. 642 of 1975. It is third round of litigation in the High Court. Therefore, for better appreciation of the points involved in the connected civil revisions, facts need be stated. Dispute concerns a double storeyed building situate in Workshop Mohalla, Rawalpindi City. Its first floor has been separately numbered under Survey No. AA/769 whereas ground floor has been given a separate survey number AA/768‑770‑

771. Upper portion was in possession of one Saeed Anmad and Mohammad Umar. Ground floor was occupied by Behram Hussain. Saeed Ahmad applied for transfer of the upper portion of the building. He was found entitled to it and appendix was issued to him on 2‑9‑1960. Saeed Ahmad associated with Syed Abdul Latif Shah, Abdur Rashid Shah, Mst. Nazir Begum, Mst. Mumtaz Begum and surrendered his rights in the property in their favour. P.T.O. and P.T.D. were subsequently issued in the names of the associates. Behram Hussain occupant of the ground‑floor was a non‑claimant displaced person. He claimed transfer of the portion of the building in his possession and submitted N . C. H. Form in 1966. It did not appear to have been disposed of by the authority before whom it was stated to be pending. Behram Hussain submitted several applications/ representation to the Authorities claiming disposal of his transfer form but to no avail. He also applied to the settlement authorities for seeking correction of the transfer documents issued in favour of Saeed Ahmad in regard to ground‑floor. Eventually, Behram Hussain filed a direct revision in the Court of Mr. M.A.A. Wasty, Settlement and Rehabilitation Commissioner, Rawalpindi Division (Revision No.72 of 1967) claiming that the ground‑floor of the building in dispute was never transferred to Saeed Ahmad or his associates by any order of the competent authority and that the documents indicating such .a transfer were all product of fraud and fabrication. Learned Settlement Commissioner in result of his masterly survey of the facts and examination of the related records concluded that "Transfer of the property in, favour of the respondent Saeed Ahmad as indicated from the orders of learned Dy. Settlement Commissioner of 2‑9‑1960 is particularly for the entire house as no mention about the first floor or any upper portion thereof is found made in it. Thus, the house, of course, in its entirety would be deemed to have been transferred to him. With this petition any change in the particulars of the property or in its number as the documents in which such changes are alleged to have been made would surely be subsidiary to and in implementation of the orders of transfer". Against the dismissal, Behram Hussain filed a petition (Writ Petition No. 602/R of 19688) in the High Court. It was dealt with by Sardar Mohammad Iqbal, J., as his Lordship then was. Learned Judge observed that though the respondent before him had mentioned only AA/769, but had applied for the entire house including the portion in possession of Behram' Hussain and Mohammad Umar. The fact that he had mentioned only No.AA/769 does not mean that he had not applied for the whole house. In the opinion of learned Judge it was only an error of description and not an error in the fact. In the alternative, learned Judge took the view that since the premises consisted of more than one residential units and being in possession of more than one person, the whole unit shall be a house unless ordered otherwise by the Chief Settlement Commissioner. Respondent was held entitled to the transfer of entire premises as a house. On these conclusions, writ petition was dismissed in limine on 8‑7‑1968. Behram Hussain filed an Intra‑Court Appeal (Letters Patent Appeal No.181 of 1968). It was heard by a Division Bench consisting of Mohammad Siddique and Doctor Naseem Hasan Shah, JJ. It was also dismissed on 22‑7‑1968. However, in para 7 of their judgment, their Lordships made certain observations. To the extent of being relevant for our present purpose, these read: "We, may, however, observe in passing that the petitioner's NCH form submitted under Settlement Scheme No.VIII has not been disposed of by the Deputy Settlement Commissioner. There is no doubt that the responsibility for this state of affairs lies on the petitioner himself as he rushed to the superior authorities without waiting for orders to be passed on his application form. We have noted that the order dated 19‑4‑1968 of the Settlement Commissioner passed in Revision is based principally on the assumption that the revision petition preferred before him is directed against the transfer order passed on 2‑9‑1960. The Deputy Settlement Commissioner who has still to pass orders on the appellant's N . C . H . Form submitted in 1966 will no doubt consider the effect of the submission pressed before this Court for the first time namely, that the ground floor portion of this property was included in the auction list in 1964 and will go into the question whether the property was auctioned as an available property and if not, why not? And if this portion of the property is still lying undisposed of". In obedience to the observations of the Division Bench, matter was taken up by Deputy Settlement Commissioner, Rawalpindi who by his order dated 26‑7‑1969 proceeded to observe. '1 have examined the case and gone through the file which shows that prior to the transfer in the name of Saeed Ahmad, property No. A A /770‑71 was included in the earmarking list and drawn in the name of one Qurban, Ali but no further documents were issued in his name being not an independent house and I think the claimant must have not been interested in getting the portion in earmarking. Similarly the auction also took place of AA/768 in 1964 and it was purchased by one Mohammad Hafiz but the auction purchaser also did not turn up as the number auctioned was not an independent property but a portion of the house. In the light of the orders passed by the Settlement Commissioner, no portion of the property in suit is available for disposal. Hence the form of the petitioner Bahram Hussain under settlement scheme No. VIII cannot be considered which is hereby rejected". Appeal and revisions filed in the higher hierarchy of the settlement laws having failed, Behram Hussain again approached High Court by filing a petition (Writ Petition No.737‑R/1971). This petition was heard by Karam Elahi Chouhan, J., later a Judge of the Supreme Court of Pakistan. Learned Judge, on consideration of the whole gamut of circumstances took the view that "The question as to whether the whole or part of the house was transferred to the respondents is a question of fact which ordinarily cannot be gone into in the course of jurisdiction under Article 98 of the late Constitution, 1962, especially, when there are documents and other evidence in support of the view which the concerned authorities have taken. The learned counsel wants to refer to some entries in the N . C . H . Form of respondent No.l so as to argue that the said respondent did not claim the whole house. This form has duly been taken into consideration by the learned Settlement Commissioner alongwith the allotment order, the receipts of payment of rent and other attending circumstances and it has been held that merely because the number in the form mentioned was AA/768, it was not conclusive to show that the entire house had not been claimed by respondent No.l or that the Department had not transferred the whole house to him. Merely because another point of view can also be advocated on the basis of relevant evidence is no ground to hold that the orders of the competent authorities are without lawful authority in any manner. Neither any misreading of record nor any omission in that respect has been brought to my notice, and in these circumstances the impugned orders call for no interference. Another thing which has been considered as a hurdle in the way of the petitioner is his own action in executing a document whereby he attorned to the associates hereinbefore mentioned, and agreed to pay rent to them. This document i.e. agreement was executed, as far back as 30th April, 1960. An effort was sought to be made before the Settlement and Rehabilitation Authorities that the petitioner had signed this document merely as a witness and not as a party. Not an iota of evidence was led in support of this plea and on the other hand the tenor of the document shows that the petitioner was an active party in the deal and signed as such. The Settlement and Rehabilitation Commissioner has said that the name of the petitioner occurred in the very opening of the document as a regular party. I have checked up this aspect of the matter from Annexure 'B` which is a certified copy of the aforesaid agreement. I find that the view taken by the learned Settlement and Rehabilitation Commissioner is quite in order, and the position adopted by the petitioner can be termed nothing except dishonest. After having abandoned the claim (if any) for the transfer of this property, it was too late after the promulgation of Scheme No.VIII to come forward and dig up old matters with a view to get settled things as unsettled. The Settlement and Rehabilitation Authorities in these circumstances were justified in not re‑opening the case at the instance of such a petitioner". I have quoted from the judgment of his Lordship only to indicate that the points being agitated now were exhaustively dealt with and found against the plaintiff Behram Hussain. Appeal filed against the decision of learned Single Judge was heard by Division Bench consisting of Mr. Justice Shamim Hussain Kadri and Mr. Justice M.S.H. Quraishi. Bench found no merits in the appeal and dismissed it in limine on 3‑7‑1972. Admittedly, against this decision no appeal was filed before the Supreme Court and these judgments attained finality under the law. It may not be out of place to mention that while the dispute was going on before the Settlement Authorities and the High Court on its constitutional side, Behram Hussain plaintiff had already filed a civil suit for declaration challenging the transfer of property in favour of Abdur Rashid Shah and others. It may also not be out of place to state here that Behram Hussain had also filed a suit for recovery of Rs.1,060 as rent of the house against Syed Abdul Latif Shah in the Court of Administrative Civil Judge, Rawalpindi. Defendants contested the suits. Suits were consolidated for a joint trial. Further proceedings were taken in the suit filed for recovery of money. After settlement of issues, suit was postponed for recording of evidence. However, before evidence could be brought on record, defendants filed an application for dismissal of the suit stating that judgments of the High Court on question of transfer of property operated as res judicata. Plaintiff resisted the application. By order dated 12‑6‑1974, trial Judge concluded that the decisions given on merits in writ jurisdiction by the High Court were binding upon the subordinate Courts which were prohibited from reopening the issues already covered by the decisions of the High Court. Plaintiff filed two separate appeals. These were dismissed on 18‑11‑1974 by Additional District Judge, Rawalpindi who endorsed the conclusions of the trial Court. It is contended on behalf of the appellant by Syed Riaz Ahmad Pirzada Advocate that decisions of the High Court were not res judicata and the Courts below took an erroneous view of law in holding it to be so. In his lengthy address, learned counsel tried 'to show that transfer documents were product of fraud and fabrication and the allegations in regard to fraud and fabrication could only be proved by leading evidence of the appropriate kind which exercise could not be performed by the High Court in its extraordinary jurisdiction. It was also argued that the civil suits were instituted prior in time to the filing of writ petition in the High Court. Therefore, decisions given by the High Court being subsequent in time shall not bar the civil Court to hold enquiry into the allegations of fraud and fabrication and give appropriate relief to the plaintiff. Ch. Mohammad Akram Advocate appearing on behalf of respondents countered the arguments of Mr. Pirzada and submitted that the suits were barred by rule of actual as well as constructive res judicata. Mr. Akram also referred to decisions of the Supreme Court and the High Court in support of his arguments. Seen from the above, fundamental question cropping up for examination is about the effect of the decisions of the High Court on the pending civil litigation. To put it differently, real point is whether the decision of the High Court in writ jurisdiction operated as res judicata and prevented the Civil Court from reopening the issues already decided by the High Court. Allegations of fraud, fabrication and mutilation in the record raise mixed questions of fact and law and are required to be proved by leading evidence. If the dispute had not been taken for decision to the High Court in its extraordinary jurisdiction, point raised by Mr. Pirzada may have some force. But when the superior Courts have already recorded decisions on merits even though in writ jurisdiction, party aggrieved of cannot be heard to say that Civil Court was still competent to reagitate the same issues. The point whether the decision on merits given by the High Court in writ jurisdiction operates as res judicata and not res integra appears to be covered by a long line of decisions of the superior Courts wherein it has been observed that there is no good reason to preclude decisions on matters in controversy in writ proceedings from operating as res judicata in regular suits on the same matters in controversy between the same parties and thus to give effect to the principle of finality of decisions after full contest. Reference in this behalf can be made to the cases of Muhammad Shafi and another v. Muhammad Bakhsh and another P L D 1971 Lah. 148, Dr. Saghir Alam etc. v. Ntst. Kaniz Fatima etc. 1982 C L C 68, Mir Ahmad Shah v. Pakistan and 2 others 1984 CLC 897, Abdul Majid and others v. Abdul Ghafoor Khan and others P L D 1982 SC 146, Asif Jah Siddiqi v. Government of Sind and others P L D 1983 SC 46, Ch. Rehmat Ali v. Haji Jan Muhammad and others 1983 S C M R 1109, Syed Mir Ahmad Shah v. Pakistan and others 1986 S C M R 1200. I have extensively quoted from the judgments of the High Court to indicate that the points agitated in the civil suit were commented upon an decided on merits against the plaintiff. It has been specifically held that the ground floor of the building was transferred to Saeed Ahma and his associates. In presence of this express finding by the High Court, it is extremely difficult to concede jurisdiction to the sub ordinate Courts to reopen this issue for decision afresh. Cases relied B upon by Mr. Pirzada to hold that allegations of fraud, forgery, fabrication and interpolations can only be gone into by the civil Court in a properly constituted suit are beside the point and proceed on totally distinguishable facts. Decisions of the High Court did decide the question of entitlement to the property between the parties. These decisions have attained finality which cannot be permitted to be whittled down. Argument of Mr. Pirzada that the suits were filed first makes no material difference. It was the appellant himself who in presence of pending suits chose to invoke the extraordinary jurisdiction of the Court. Therefore, the decision given by the High Court though subsequent to the filing of civil suits shall still be res judicata. I there is one principle more fundamental than any other underlying the whole system of law which we administer, it is this that the decision of a superior Court on merits prevents the subordinate Courts to question its correctness. Facts are not in dispute. Only effect o the judgment of the High Court on the pending civil litigation is required to be seen. In this view, it was not necessary to record evidence. Suggested remand shall serve no useful purpose. In my opinion, judgment of the Court below which is a well‑written document clearly indicates that it took care to examine all the material placed on the record before it came to conclude against the plaintiff and hold that suits were barred by res judicata. For the reasons set out above, revision are found to have no substance and are dismissed with costs throughout. A.A./B‑68/L Revisions dismissed.