1999 PLP 1148 (MLD)

9. I have considered the judgments cited by the learned counsel for the respondents, which have their own peculiar facts and the ratio of none of these judgments is applicable to the fact and circumstances of this case. Haji Muhammad Anwar's case 1994 SCMR 899, has been discussed in a later part of the judgment.

10. The principle laid down in Pir Bakhsh and others v The Chairman, Allotment Committee (PLD 1987 SC 145) is fully applicable in such like situations. That was a case in which a judgment of the Lahore High Court was challenged by some of the parties before the Supreme Court of Pakistan whereas some of the parties to the judgment did not file appeal before the Supreme Court. Those who filed the appeal, they succeeded and their appeal was accepted. At the stage of implementation of the judgment a question arose as to whether those who had not challenged the judgment of the High Court before the Supreme Court would also be entitled to the benefit of the Supreme Court's judgment. The Supreme Court came to the conclusion that it was a judgment in personam contrary to the concept of a judgment in rein, and their lordships held that those who had not challenged the judgment of the High Court before the Supreme Court and had allowed to become final were bound by the judgment of the High Court as the judgment qua them attained finality and principle of res judicata was fully applicable to them. At page 161 of the report, certain passages from American Jurisprudence, were relied upon regarding the principle of res judicata as compared to the principle of share decisis and then the principle of judgment in rein and judgment in personam was discussed at page

166. A passage from pages 167 and 168 can be usefully reproduced as to the application of rule of res judicata laid down by their lordships:- "If he was party then the judgment of the competent Court as a plea is a bar or as an evidence conclusive between the same parties upon the same matter directly in question in another Court or in an other action between the same parties in the same Court. In legal parlance this bar is known as estoppel by judgment or res judicata. Cooley in his 'Treatise on the Constitutional Limitation' at page 47 deals with the bar in these words: And as the first, we understand the rule to be, that a decision once made in a case, by the highest Court empowered to pass upon it, is conclusive upon the parties to the controversy and their privies, who are not allowed afterwards to revive it in a new proceeding for the purpose of raising the same or any other question. The matter in controversy has become re Judicata, a thing definitely settled by judicial decision and the judgment of the Court imports absolute verity. Whatever the question involved whether the interpretation of a private contract the legality of an individual act, or the validity of a legislative enactment, the rule of finality is the same. The controversy has been adjudged and once finally passed upon is never to be renewed." And further The rule of conclusiveness to this extent is one of the most inflexible principles of the law, insomuch that even if it were subsequently held by the Courts that the decision in the particular case was erroneous such holding would not authorize the reopening of the old controversy in order that the final conclusion might be applied thereto. Section 11 of the Civil Procedure Code incorporates this principle. In Tarini Charn v Kedar Nath (28) C.777 the bar of res judicata is stated in these terms. "It matters nothing whether the error on a point of fact or on a point of law" ..... "Courts of law are in no way authorised to alter the rights of parties. They profess at all events, to ascertain the law, and if the binding character of a decision upon a concrete question as to the terms of a particular holding is to fluctuate with every alteration in the current of authority the Courts will become an instrument for the unsettlement of rights rather than for the ascertainment thereof. The principle relied upon is abhorrent to section 11, Civil Procedure Code and to the general intention of the doctrine of res judicata. If authority be wanted for its rejection a very plain authority can be found in the case of Gowri Koer v. Audh Kaur (1884 10 Cal. 1087)." 'The question whether a decision is correct or erroneous has no bearing upon the question whether it operates or does not operate as res judicata. The doctrine is that in certain circumstances the Court shall not try to suit or issue but shall deal with the matter on the footing that it is a matter no longer open to contest by reason of a previous decision. In these circumstances it must necessarily be wrong to a Court to try the suit or issue come to its own conclusion thereon consider whether the previous decision is right and give effect to it or not according as it conceives the previous decision to be right or wrong. To say, as result of such disorderly procedure, that the previous decision was wrong and that it was wrong on a point of law, or on a pure point of law, and that, therefore, it may be disregarded, is an indefensible form of reasoning. For this purpose, it is not true that a point of law is always open to party' . . .. . 'On the other hand it is plain from the terms of section 11 of the Code that what is made conclusive between the parties is the decision Court and that the reasoning of the Court is not necessarily the same thing as its decision. The object of the doctrine of res judicata is not to fasten upon parties special principles of law as applicable to them inter se but to ascertain their rights and the facts upon which these rights directly and substantially depend, and to prevent this ascertainment from becoming nugatory by precluding the parties from reopening or re-contesting that which has been finally decided' ...." Mr. S.M. Zafar, learned counsel for the respondents relied heavily on these observations to support his view point that the decision in the earlier writ petitions was inter parties and conclusively determined the rights of the parties, and, therefore; those judgments in the earlier writ petitions were judgments in personam and could not be reopened in view of the bar of res judicata. He next relied on the Gowri Koer v. Audh Koer and others (1884 10 Cal. 1087). The decision in this case contains the principle that where the decision of a Division Bench on a point of law was disapproved by a Full Bench, the decision of the Division Bench nonetheless is no less a res judicata although it may have been founded on an erroneous view of the law, or on a view of law which the Full Bench subsequently disapproved. " (To emphasise some portions have been underlined by me)

11. The principles approved, laid down and highlighted above, get attracted to this case. The matter having been contested and fought by the parties in the earlier round wherein Ghulam Haider the original owner was party and also the present respondents Nos. l to 22/plaintiffs. The sale transaction in their favour was adjudged to be illegal and void which judgment after the dismissal of the appeal of the present respondents Nos.1 to 22 attained finality. The subsequent suit on the principle of res judicata and the rule laid down in Pir Bakhsh case was not competent, thereafter, between the same parties on the same subject- matter and the same was clearly barred. The view of the learned trial Court on this point was perfectly in accordance with law, which has been reversed by the learned appellate Court on an erroneous view of the facts and circumstances of the case and the law applicable thereto.

12. The learned appellate Court has simply noted that the claim of the plaintiffs in the previous suit related to 20 Kanal of land. However, it has ignored the judgment and decree passed in the said suit, the operative part of which was as follows:- "The sale-deeds dated 2-5-1965 and 21-5-1965 registered on 19-12 1965 and consequent mutation Nos.309 and 310 are against the provision of Martial Law Regulation 64 and accordingly are set aside."

13. Admittedly, respondents Nos. l to 22 were purchasers through sale-deed dated 21-5-1965 (mutation No.309) which was set aside by the civil Court in' that suit. The basis of the sale in favour of respondents Nos. l to 22/plaintiffs having been nullified as a result of judgment of the civil court which as noted above had become final, no suit was competent on the basis of the same sale deed nor any relief could be granted to them in the subsequent suit. The view of the learned appellate Court in the impugned judgment that the said judgment'' does not affect the rights of respondents Nos. 1 to 22 for the reason that they were the bona fide purchasers is not in accord with the rule laid down by the Supreme Court in Pir Bakhsh case. They were estopped by the principle of res judicata to re-open and reagitate the same controversy once again.

14. The contention of the learned counsel for the respondents that the restriction on the power of alienation of the owner has since been declared as repugnant to the injunctions of Qur'an and Sunnah vide judgment of the Supreme Court reported in Haji Muhammad Anwar v. Government of Pakistan, Ministry of Justice and Parliamentary Affairs. (1994 SCMR 899), therefore, the sale in their favour should be upheld, is not tenable, as the judgment does not permit the reopening of transactions past and closed. In the present case the previous suit was decided by the learned trial Court on 26-5-1976 and the appeal there against filed by the respondents Nos. l to 22 was dismissed on 22-5-1984 which judgment became final between the parties, whereas the judgment of the Shariat Appellate Bench in Haji Muhammad Anwar (supra) case became effective from 28-2-1994. During this period the land was purchased by the petitioner in the year 1990-91 and judgment cannot be invoked against them to unsettle their rights in the land. The said judgment, therefore, is of no help to the respondents Nos. 1 to 22 in this case. In view of the above, the revision petition is accepted. The judgment of the learned appellate Court is set aside and that of the learned trial Court is restored. No order as to costs. A. A./A-317/L Revision accepted.