1990 PLP 220 (CLC)

10. Mr. Kitchlew filed C.P.S.L.A. No.372 of 1979, which was dismissed by the Hon'ble Supreme Court of Pakistan upholding the findings recorded in the order of the High Court noted above. So the third round of litigation came to a close vide judgment of the Hon'ble Supreme Court dated 16‑6‑1979

11. Despite the afore‑noted futile attempts to seek the transfer of the property in his favour, Waheed‑ud‑Din Kitchlew did not feel satisfied and once again got the proceedings reopened in respect of the transfer of property in favour of Abdul Aziz by making an application to the learned Additional Commissioner (R)/Settlement Commissioner, Rawalpindi Division, Rawalpindi, to the effect that Revision Petition No.299 of 1971 was still pending and needed adjudication in view of the order of the High Court dated 22‑7‑1974. Waheed‑ud- Din Kitchlew did not bring to the notice of learned Additional Commissioner (R)/ Settlement Commissioner the decision of the Settlement Authorities and the decisions of the High Court and the Hon'ble Supreme Court by which the controversy in respect of the transfer of the property had been finally concluded.

12. The learned Additional Commissioner (R)/ Settlement Commissioner, Rawalpindi Division, Rawalpindi, vide his order dated 31‑3‑1985 accepted the so called revision petition in the following words:‑‑ "Against this order dated 24‑1‑1973 of the Settlement Commissioner. Abdul Aziz filed Writ Petition No.361‑R/1973 and Waheed‑ud‑Din Kitchlew filed Writ Petition No.514‑R/1973 in the High Court Lahore. Both the writ petitions were decided by his Lordship Mr. G. M. Mirza, Judge of the Lahore High Court with a single order dated 22‑7‑1974. He. set aside the order dated 24‑1‑1973 of the Settlement & Rehabilitation Commissioner, Rawalpindi, and remanded the case to the Settlement Commissioner, Rawalpindi, with the direction to hear both the parties and then to decide the case afresh. Against this order dated 22‑7‑1974 of the Single Judge, Abdul Aziz filed C.P.S.L.A. No. 112 of 1974 before the Hon'ble Supreme Court which was dismissed on 26‑1‑1976. It is, in this that I am now required to decide Revision Petition No.299/1971 a titled Waheed‑ud‑Din Kitchlew v. Abdul Aziz (which was earlier dismissed by the ettlement Commissioner on 24‑1‑1973) in compliance .with the remand order dated 22‑7 1974 of the Hon'ble High Court Lahore. Order dated 24‑1‑1973 of the Settlement Commissioner, Rawalpindi, has been set aside by the Lahore High Court on 22‑7‑1974."

13. It will be appropriate at this stage to reproduce the relevant portion of the impugned order, in which the learned Additional Commissioner (R)/ Settlement Commissioner, felt a necessity to decide the grievance of Wahecd‑ud Din Kitchlew:‑ "Under the foregoing views, I transfer the entire Dawn Hotel subject property of this case to Waheed‑ud‑Din Kitchlew, the petitioner, under Settlement Scheme No.I on the basis of C.S. Forms submitted by him on 10‑7‑1959 and 24‑9‑1960 under para.4 of the Settlement Scheme No.1 The Deputy Settlement Commissioner, Rawalpindi, shall work out the transfer price on evaluation basis under Para. 23 of Settlement Scheme No.I and shall issue him Appendix X under para. 29 (i) of the above said scheme. He will also carry out all the other processes for the issuance of title deed to the petitioner after recovery of the transfer price, and other connected dues. Revision is accepted and the impugned order dated 30 7‑1971 of Additional Settlement Commissioner, Rawalpindi, as well as the order dated 10‑11‑1970 of Deputy Settlement Commissioner are set aside:

14. The learned counsel for the petitioners in support of his petition contended that the learned Settlement Commissioner has proceeded to decide the case on the assumptions, which were totally incorrect and non‑existent. It was argued that in pursuance of the order of remand dated 22‑7‑1974, the question of the transfer of the property was decided by the learned Settlement Commissioner vide his order dated 12‑1‑1977; that the order of the learned Settlement Commissioner dated 12‑1‑1977 was upheld by the High Court in the order dated 7‑3‑1979 and by the Hon'ble Supreme Court in the order dated 16‑6‑1979; that the entitlement of the parties stood conclusively determined and on the principle of res judicata, it could not be re‑examined. Elaborating his contention, it was further contended that the learned Settlement Commissioner had no authority to by‑pass the findings of the Hon'ble High Court and the Hon'ble Supreme Court rendered on the question of entitlement of Abdul Aziz and Wahecd‑ud‑Din Kitchlew regarding the transfer of the property. Under Article 189 of the Constitution of Islamic Republic of Pakistan, the judgment of the Hon'ble Supreme Court was binding on both the parties and upon any other forum. 1t was lastly contended that the impugned order was a sheer abuse of authority and needed to be declared as an order having been passed without lawful authority. Additionally, it was brought to the notice of this Court that Waheed‑ud -Din Kitchlew had got re‑started the proceedings before the learned Additional Commissioner/Settlement Commissioner by a fraudulent and deceitful misrepresentation to the effect that the order of the High Court dated 22‑7‑1974 was still not complied with and the revision petition was still pending.

15. In reply, the learned counsel for the respondent supported the impugned decision. The learned counsel for the respondent did not controvert the contentions of the learned counsel for the petitioners on facts, but suggested that both the writ petitions merited to be dismissed on the basis of the legal preliminary objections, which he argued them to be fundamental objections to the maintainability of these petitions. These objections can be summarised as follows:‑ In regard of Writ Petition No. 19‑R/1976, it was argued that this petition was dismissed by his Lordship Mr. Justice Amjad Khan, on the principle of laches on 20‑4‑1987. An application for review of order dated 20‑4‑1987 was filed after a lapse of one year. His Lordship Mr. Justice Amjad Khan, vide his order dated 8 2‑1988 reviewed his previous order without notice to Mr. Kitchlew, and ordered to be set down for hearing in motion. This petition was resultantly admitted to regular hearing on 6‑6‑1988. It was argued that the order dated 8‑2‑1988 was passed without notice to the respondent. It was, therefore, invalid order being in violation of Rule 4, sub‑rule (2), Clause (a) of Order XLVII of the Code of Civil Procedure. On the strength of this argument, it was argued that the order dated 20‑4‑1987 had, therefore, become final and this constitutional petition merited to fail on account of this preliminary objection.

16. Objections in respect of Writ Petition No.25‑R of 1986 were made that the writ petition was dismissed in limine on 20‑4‑1987; that the petitioners filed leave to appeal against the said order before the Hon'ble Supreme Court. He withdrew the aforesaid petition on 19‑2‑1988. It was on 8‑2‑1988 when the review petition before the High Court was filed. In the context of the aforesaid facts, it was argued that the order of the Court dated 20‑4‑1.987 stood approved by the Hon' ble Supreme Court; that it shall be presumed that while permitting to withdraw their petition for cave to appeal, the Hon'ble Supreme Court had accorded approval to the order dated 20‑4‑1987.1t was, therefore, argued that, on the principle of finality of judgment, this writ petition was incompetent. It was lastly submitted that the review petition was filed after the prescribed period of limitation under Article 162 in Schedule to the Limitation Act.

17. The arguments of the parties were heard at length. The material on the record of both the writ petitions was examined by me with care and caution. The facts between the parties are not in dispute. Even the learned counsel for the respondent concentrated his efforts in supporting the impugned decision on the ground of legal objections. It was not disputed by him that the revision petition, in pursuance of the order of remand of the High Court dated 22‑7‑1974, stood adjudicated by the Settlement Authorities in favour of Abdul Aziz; that the decision of Settlement Authorities in respect of Abdul Aziz was upheld by the High Court under Article 199 of the Constitution of Islamic Republic of Pakistan and by the Hon'ble Supreme Court the Court of ultimate jurisdiction. I have, therefore, no difficulty in reaching the conclusion that the revision petition was not a pending matter and it stood finally determined by the Hon'ble Supreme Court of Pakistan and that the decision of the Hon'ble Supreme Court was A binding under Article 189 of the Constitution on parties as well as on all other forum. Now the only questions calling for determination are the legal objections advanced by the learned counsel for the respondent.

18. The questions calling for consideration are:‑ (1) Whether the order dated 8‑2‑1988 by which the previous order dated 20 4‑1987 was recalled is unlawful being in violation of the provisions of Rule 4, Sub‑rule (2), Clause (a) of Order XLVII of the Code of Civil Procedure? (a) Whether the application for review was barred by time under Article 162 of the Limitation Act? (3) Whether the Court had inherent jurisdiction to recall its previous order without notice to the other party, if the Court comes to a conclusion that the order suffers from patent illegality on the face of the record? These questions were proposed to the learned counsel for the parties, vide my order dated 20‑9‑1989. The learned counsle for the respondent made the submissions exclusively on the questions proposed above.

19. I am afraid, I do not subscribe to these hyper technical objections. The arguments of the learned counsel for the respondent appear to be Iceberg. Like Iceberg they appear to be on the face of them to be very formidable and very strong argument but on deeper study they were found to be without any force. The arguments are of hyper-technical nature; far fetched from the calls of dispensation on merits and legal principles for indispensable determination of the rights of the people in accordance with law. 19‑A. Such questions have been the subject‑matter of examination in a number of cases before the superior judiciary. In Janaki Nath Hore and another v. Probhasni Dasi (30 1 C 898) the appeal had been dismissed summarily by a Division Bench of the High Court acting under rule 11 of Order XLI, but that order was recalled on a review application having been made by the appellants without issuing any notice to the respondent, and it was ordered that the appeal should be heard. A preliminary objection was raised on behalf of the respondent that the order granting review was inoperative because it was made in contravention of rule 4 of Order XLVII which required that no application for review shall be granted without previous notice to the opposite‑party to enable him to appear and be heard in support of the decree or order a review of which is applied for. The learned Judges observed: "1t need not be disputed, to use the language of Lord Macnaghtan in the case of Muhammad Zahuruddin v. Nuruddin (14 Madras Law Journal 7), that as a general rule no order of review can be made without previous notice to the person in possession of the decree which is to be reviewed. But the substantial question is who is the opposite‑party upon whom notice of the application should have been served in this case. The expression `opposite‑party' is not defined in the Code but it may be taken to mean the party interested to support the order sought to be vacated or modified upon the application for review." "If we accede to the contention of the respondent the result would be that he would be subject to needless harassment from which the Legislature intended to protest him by the introduction of rule il of Order XLI of the Code. If it is obligatory upon the Court to issue notice upon the respondent when application is made to review an order of dismissal under rule 11 of Order XLI, the respondent must appear in answer to the rule to support the order of dismissal without the record before the Court; and if the rule is made absolute and the appeal directed to be heard in the presence of the respondent, he would have to appear a second time to support the decree under appeal. This result could never have been intended by the Legislature."

20. The rule laid down in Janaki Nath Hore case was affirmed in Official Trustee of Bengal v. Benods Behari Ghose Mal (A I R 1925 Cal. 114) and the view expressed in the earlier case was followed. I am in respectful agreement with the reasoning adopted in both these cases and consider that where the review sought is in respect of an order dismissing an appeal in a summary manner, no notice is necessary to the respondent in the appeal for the reason that he is at that stage not yet an opposite‑party within the meaning of the proviso to rule 4 (2) of Order XLVII of the Code. This objection, therefore, fails.

21. In Dr. M. Fazil Zahir and others v. Mst. Begum and others (PLD 1966 (W.P.) Lahore 53), the rule laid down in the afore‑quoted precedents was re affirmed and it was held that there was no necessity to give notice to the respondent in the stage of recalling an order passed in limine on the simple B ground that the opposite‑party had a right to support the impugned decision in original cause at the time of final hearing. It was held that the notice envisaged under Clause (a) of sub‑rule (2) of Rule 4 of Order XLVII of the C.P.C. was not attracted to recall of tire order dismissed in limine. Even otherwise, this objection, is mere fetish a technicality, It is well -settled principle of law that if a Court comes to a conclusion that the order passed by it is without jurisdiction or suffers from illegality on the face of the record, it has inherent powers incidental to the dispensation of justice to recall that order. In the Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others (P L D 1975 Supreme Court 331), "it was held that it seems to us that while there are cases in which the power of a Court or Tribunal of special or limited jurisdiction to suo moto recall or review an order obtained from it by fraud has been doubted, yet the preponderance of judicial authority is in favour of conceding such a power to every authority, tribunal or Court on the general principle that fraud vitiates the most solemn proceedings, and no party should be allowed to take advantage of his fraud. There can be no rational basis for discriminating between the powers available in this behalf to a Court of general jurisdiction and a Court or tribunal of special or limited jurisdiction, for in either case the effect of fraud is the same, and the duty to undo that effect must lie on the authority on which fraud is practised. We are, therefore, of the view that even a tribunal of limited or special jurisdiction has the power to suo moto recall or review an order obtained from it by fraud."

22. Following the afoie‑noted principle, I am clear in amy mind that the order of this Court dated 20‑4‑1987 by which the order dismissing the writ petition was recalled, is not open to any objection. The objection of the learned counsel for the respondent is accordingly repelled.

23. As far as the second contention is concerned, that the order of the Hon'ble Supreme Court, by which the petitioner was permitted to withdraw the petition, amounted to an impediment in the way of hearing of this writ petition on the principle of finality it is totally misconceived. The Hon'ble Supreme Court did not pass any order. The petitioners were permitted to withdraw the petition. The objection in the context of sub‑rule (3) of rule 1 of Order XLII of the C.P.C. is not applicable to the facts of the instant case. The relevant sub‑rule (3) is as follows: "Order 23, Rule 1(3): Where the plaintiff withdraws from a suit, or abandons part of a claim, without the permission referred to in sub‑rule (2) he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject‑matter or such part of the claim." A bare reading of the above rule indicates that a person is precluded to raise the same controversy before the same Court, if he withdraws the cause without the permission. But it cannot be constituted as a road‑block seeking E remedy from the other Court, if he establishes that the order of that Court is illegal and without lawful authority on the face of it.

24. There is yet another aspect of the case. The objections of the learned counsel have to be noticed from another angle also, that the question of entitlement of Abdul Aziz and Kitchlew was determined by the High Court after hearing both the parties and the order of the High Court was upheld by the Supreme Court after hearing both the parties. The rights of the parties, their entitlement, their locus standi were finally determined by the High Court as well as the Supreme Court. Therefore, the parties were bound under Article 189 of the Constitution of Islamic Republic of Pakistan. They had no right to get these decisions by‑passed or short‑circuited.

25. The constitutional jurisdiction is an extraordinary jurisdiction. The hall mark of this jurisdiction is to keep the various functionaries of State within the orbit of their authority. If the Court comes to the conclusion that the impugned order has been passed in excess of authority, or has been passed without authority, or has been in defiance of Law laid down by superior judiciary, the Court strikes down such orders and issues the writ. In this case, the respondent procured the impugned order by suppression of facts. Even he did not bring it to the notice of Settlement Commissioner that the entitlement of parties had been adjudicated by the Settlement Authorities in pursuance of order of remand; that the orders of the Settlement Authorities have been upheld by the High Court and Supreme Court; that the order passed by the High Court as well as Supreme Court was binding on Waheed‑ud‑Din Kitchlew.

26. In result, I have no option but to accept Writ Petitions No.19‑R of 1986 and 25‑R of 1986, holding that the order passed by Settlement Commissioner, Rawalpindi Division dated 31‑3‑1985, is without jurisdiction and without any legal effect. It is declared as such. It is based upon sheer abuses of authority and amounts to contempt of Court. Had the Additional Commissioner/Settlement Commissioner, Rawalpindi, not retired, I would have taken action against him.

27. The respondent Waheed‑ud‑Din Kitchlew shall bear the costs of proceedings throughout. A.A./W‑77/L Petition accepted.