1992 PLP 1338 (MLD)

This appeal is directed against the order of District Judge Bagh, dated 24‑8‑1991, whereby the order of Sub‑Judge Bagh passed on 30‑8‑1990 was vacated. The learned Sub‑Judge vide his order had ordered the respondent to maintain status quo.

2. During the course of arguments on 30‑9‑1991, respondent had placed some orders relating to the suit land passed by various Courts and administrative authorities, including High Court, on the file. After perusing the orders, it was deemed just to vacate the ad interim relief granted on 1‑9‑1991. A notice was also issued to the appellant to show cause as to why his plaint may also not be rejected or dismissed as frivolous and barred by law. The arguments in the case on this point were addressed by the learned Advocates on 30‑10‑1991. During the course of arguments, it was brought to my notice that the order, dated 30‑9‑1991, was appealed against before the Supreme Court. It was, therefore, thought proper to wait for the proper orders by the Supreme Court. The Supreme Court was pleased to observe, vide its order, dated 3‑11‑1991 that "it would be proper that learned Judge in the High Court should decide the matter before it is challenged in this Court. Leave is, therefore, refused in respect of para. 2 of the order of the High Court".

3. I have heard the learned counsel for the parties and perused the record, besides going through the orders passed by different Courts with respect to the suit land. The facts, necessary for disposal of the case between the parties are that appellant Zaighum Salim Khan filed a suit before Sub- Judge Bagh on 15‑5‑1982 seeking a declaration that grant of land comprising number Khasra.396 measuring 4 Marlas in favour of respondent is illegal and that he is owner of the land. The land in dispute is situated in a Nullah comprising number Khasra 396. 8 Marlas of land, out of this number Khasra have been allotted in favour of appellant, while 12 marlas from the same survey number have been allotted in favour of Qari Muhammad Yasin and his brothers, who at the moment, are not before the Court. A litigation between the respondent and Qari Muhammad Yasin and his brothers has finally been concluded by this Court with respect to the suit land on 31‑7‑1991 by dismissing their claim. Respondent is also an allottee of 4 marlas of land out of this number Khasra. Appellant as well as Qari Muhammad Yasin and others, who wanted to usurp the disputed land in the garb of their allotments, have resorted to a series of litigation against the respondent, either jointly or separately (though with, a surreptitious collusion). Following is the detail:‑ (i) They had first filed a joint review petition before the Government against the grant of land in favour of respondent on which a Commission was appointed, who finally reported in favour of respondent and against the appellant and Qari Muhammad Yasin. This review petition was rejected through a Government order, dated 4‑12‑1982; (ii) Qari Muhammad Yasin and others challenged the grant of land in favour of respondent through a writ petition before the High Court, which was dismissed on 26‑1‑1983: (iii) Appellant instituted a suit before Sub‑Judge Bagh for a declaration that he is owner of the suit land and for possession, which. was dismissed after regular trial on 29‑7‑1989, and the order was upheld by the High Court on 4‑2‑1990; (iv) A civil suit for a declaration and cancellation of the grant of disputed land in favour of respondent, in which appellant was a pro forma respondent, having common interest with Qari Muhammad Yasin, was also dismissed on 3‑12‑1991 by Sub‑Judge, Bagh. The judgment was upheld by the learned Additional District Judge, Bagh and High Court on 23‑4‑1988 and 29‑5‑1990 respectively. (The latter being an order of dismissal of appeal in default); (v) Qari Muhammad Yasin (an ally of appellant) again filed a suit of similar nature for the disputed land before Sub‑Judge, Bagh which was dismissed and appeal against the order was rejected by District Judge on 5‑2‑1991 and by High Court on 31‑7‑1991; (vi) The instant suit is sixth, in the series of attempts to usurp the land from the respondent.

4. Any order to be passed in this case has to be viewed in the light of above facts. Though the jurisdiction of this Court at the moment has been invoked against an order, whereby order of injunction in favour of appellant has been cancelled by District Judge, Bagh, but the Court has noticed the above facts during the course of arguments and feels, that it is the fittest case in which it should intervene for the ends of justice. A suit on behalf of appellant first instituted in the Court of Sub‑Judge, Bagh on 15‑5‑1982 and dismissed on 29‑7‑1989 having consumed about six precious years of the parties, was dismissed with these observations: This order was upheld by the High Court. Another suit which was filed by Qari Muhammad Yasin and others in which appellant was pro forma defendant, sharing common interest with Qari Muhammad Yasin, was also dismissed as stated above. Appellant (pro forma defendant in that case) had also appeared as witness on behalf of Qari Muhammad Yasin plaintiff. The judgment was also upheld upto High Court. Besides other facts, these two judgments operate as res judicata and therefore, the suit of the appellant before trial Court is barred by law. An adjudication in an earlier case ordinarily may not operate as res judicata against the pro forma defendant, but if it is apparent that the interest of pro forma defendant was identical with that of the plaintiff, the decision operates as res judicata. I am supported in holding this view by AIR 1942 Cal. 1, which reads as: "In order to apply the rule of res judicata as between co‑defendants in a previous suit, three conditions are requisite: (1) There must be a conflict of interest between the defendants concerned; (2) it must be necessary to decide this conflict in order to give the plaintiff the reflief he claims; and (3) the question between the defendants must have been finally decided. Even a pro forma defendant is ordinarily bound by a decree which has been obtained in his presence. A decision in a former suit to which the pro forma defendant was a proper party, which affects the interests of the pro forma defendant operates as res judicata in a subsequent suit between the same parties even if no relief was claimed against the pro forma defendant".

5. It was argued by the learned counsel for the appellant that as his earlier suit decided on 29‑7‑1989 was under section 9 of Specific Relief Act, while the nature of the instant suit before trial Court is different, hence according to the learned counsel the principle of res judicata does not apply in this case. He has referred to 1989 CLC

318. This authority does not find place in the relevant book. I have gone. through the earlier judgment, though the plaint apparently mentions section 9, but it has been drafted, treated and tried as a regular suit for declaration, in which the entitlement of the parties and their right to possession of the suit land is also decided. Ordinarily under section 9 of Specific Relief Act, the question of illegal dispossession has to be gone into and it is a summary procedure for possession. But when a suit has regularly been tried and all possible issues, e.g. proprietorship and the right of parties to possession etc. are decided, it cannot be said to be a suit of summary nature, as visualized by section 9 of Specific Relief Act. A suit for a declaration with an extended scope (may it be under section 9 of Specific Relief Act) if substantially tried and decided, will operate as res judicata between the parties, if a subsequent suit with the identical facts and controversy is brought before the Court. Section 11 Explanation (111), C.P.C. covers the case fully which reads as: "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."

6. In another case which was instituted by Qari Muhammad and others against respondent and finally decided by the High Court on 31‑7‑1991, the right of respondent to the disputed land has been accepted. The Court would make a mockery of itself if, a settlcd right of a party through an earlier order is reopened, simply on the pretext that some other person (especially one who has been in league with the judgment‑debtor in the former suit) has come afresh before the Court, unless earlier order is set aside in appeal. A judicial C precedent in a case itself operates as res judicata, even if a person is not a party to that litigation. I am forted in holding this view by AIR 1955 SC 481, relevant part reads as: "Where the Privy Council had construed a certain document, namely a will of a person not a party to that litigation, yet the decision operates as judicial precedent." As the entitlement of the respondent and his right to the grant of the disputed land, besides having been decided in the regular suit filed by the appellant himself, has been adjudicated and settled by the High Court in a suit filed by Qari Muhammad Yasin and others, it definitely operates as judicial precedent and the appellant is precluded from challenging the same, as the right of the party has been settled on the construction of the documents challenged afresh before the trial Court. The Courts while deciding the cases, besides laying down the judicial precedents, settle disputes of the parties, and disputes, whicb relate to a piece of land, definitely affect the persons of the locality. Th_ confidence of the public in the Courts will shatter, if settled matters are repeatedly reopened just on one pretext or the other. It is the duty of every Court to throw out a matter, when it is brought to its notice that the matter has once been settled. The parties cannot be allowed to reopen the settled matters' on the flimsy legal or procedural techniques. The substance of the matter is of essence in a judicial administration not :he technique, unless it goes to the root of the matter. Dispensation of justice is a sacred duty, which has to be performed in accordance with the provisions of law, with a humane attitude. It is not a computerized function, but has to be performed keeping in view the human relations, affinity, mental attitude, conduct of the parties and nature of the case etc. It may be a business for the lawyers, petition‑writers, police and others who are benefited by the origin and continuance of disputes, but it is a sort of war between the parties. Courts have to keep in mind the horrifying effects of such a strife to put an end to it, moreso, when litigation is futile and flimsy. A prolonged false litigation first affects locally and when followed by one after other cases on the same subject between parties, it shakes the confidence in the legal institutions and the system as a whole which ultimately affects the nation. It is the duty of the Courts to uphold the confidence of the general public in the national institutions, the least one can do, is to stop the litigation like one in hand.

7. It is borne out from the record that the appellant and the other party (Qari Muhammad Yasin and others) have changed the sides and have come under new pleas and pretexts before the Court to deprive the respondent of the fruit of his legal grant by harassing him through different processes of Courts. I think this is the fittest case, in which the Court should, in view of the, circumstances‑ stated above, invoke its inherent powers under section 151, C.P.C., read with section 35 of the Courts and Laws Code Act, 1949, which respectively read as follows: "151 ‑ Saving of inherent powers of Court: Nothing in this Code shall be deemed to limit or otherwise affect the inherent powers of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court." "35(1) Subject to such rules and regulations as the Azad Jammu and Kashmir Government may make, the High Court shall have superintendence and control over all Courts for the time being subject to its appellate or revisional jurisdiction and all such Courts shall be subordinate to the High Court." In PLD 1983 SC (AJ&K)13 it was held: "

8. We have here also the Azad Jammu and Kashmir Courts and Laws Code Act, 1949 which invests the High Court with authority of superintendence and control over the Courts subordinate to it. Section 35 of the Courts and Laws Code Act, 1949 gives wider powers of superintendence and control over all Courts subject to the appellate and revisional jurisdiction of the High Court. It further empowers the High Court to give directions in matters not provided for by law as may be necessary to secure the due administration of justice. The prerogative and privilege of the High Court to superintendence and control subordinate Courts is quite independent and in addition to the powers of the High Court under section 115, C.P.C. this right imposes a corresponding duty to see that Courts subordinate‑ to it do not invade vested rights of subject by usurping jurisdiction. This view is supported by authorities as well. In AIR 1920 Pat. 568 (Brindaban Chander Choubey v. Gour Chandra Roy and others, it was observed: "It is the privilege and prerogative of a High Court, once a record is before it which is erroneous and so erroneous as manifestly to amount to an injustice, to exercise its powers of superintendence to revise such order, or set it aside and direct such further proceedings to be taken as justice may require". Therefore, in our view, the High Court in exercise of the powers of superintendence and control over the subordinate Courts under section 35 of the Azad Jammu and Kashmir Courts and Laws Code Act, 1949, was competent to revise the order. Even otherwise too, it is not a case of total lack of jurisdiction. The High Court was competent even otherwise to exercise the revisional jurisdiction and we cannot find fault with the order simply on the ground that the order is defective, if the order can be saved under some other provisions of the law and does not suffer from total lack of jurisdiction. Reference may be made to 1982 CLC 2511 (Sulaiman v. Khurshid). In this case it has been observed: "Where a Court does not lack in its inherent want of jurisdiction, but the procedure or mode of hearing, it adopts is defective or irregular and in such a position a party joins issues and participates in the proceedings without raising any objection on such defect or irregularity touching upon the jurisdiction; later on it cannot be allowed to challenge the jurisdiction when the result of the proceedings goes against it."

8. The contention of the learned counsel for the appellant that `the trial Court had almost completed the evidence and therefore, let that Court decide I the case on merits first', is untenable. There is no bar for this Court to intervene in exercise of its own powers, and pass proper orders for preventing the abuse of process of Court and to secure the ends of justice. The jurisdiction and powers of the High Court are not dependent upon the decision of the Trial Court, whenever it comes to the notice of the High Court, that the process of a Court is being abused, it is its duty to intervene and secure the ends of justice.

9. Keeping in view the conduct of the appellant, I hereby dismiss the suit filed by the appellant before Sub‑Judge Bagh. In view of the protracted collusive litigation at different forums, the appellant shall pay a sum of Rs.15,000 as costs to the respondent. The appeal against the order of District Judge Bagh, dated 24‑8‑1991, consequently also stands dismissed. A.A./507/H.CA. Order accordingly.