P L D 1982 Supreme Court 146 (PLP)

MUHAMMAD APZAL ZULLAH, J.‑Leave to appeal is sought from the order dated 15‑11‑1978 of the Lahore High Court ; whereby the petitioners (plaintiffs) 2nd appeal was dismissed in limine. The case relates to a claim for agricultural lama. abandoned in District Robtak‑India. In 1941, the petitioners purchased it, Abdul Sattar, predecessor in‑interest of the respondents obtained a decree for possession through pre emption regarding this land. Petitioners 1st appeal against the decree failed but they succeeded in 2nd appeal in the High Court. Abdul Sattar filed a Letters Patent Appeal which was allowed on 11‑10‑1946. After migration to Pakistan Abdul Sattar filed claim for the land in question on the basis of the decree finally passed in his favour by the High Court in Letters Patent Appeal, while the petitioners preferred a claim on the basis of the original sale in their favour, which was shown in the special jamabandi received from India. It appears that the effect of the decree in favour of Abdul Sattar, was not shown in the jamabandi. After the contest at lower levels the Rehabilitation Commissioner by his order dated 5‑12‑1957 allowed the petitioners claim on the basis of the entries in the jamabandi in preference to the decree. Abdul Sattar filed a Writ Petition (No. 310‑R‑58) in the High Court which was dismissed by a learned single Judge on 12‑1‑1961. His Letters Patent Appeal (No. 24 of 1960) was, however, allowed on 28‑11‑1961 and the order of Rehabilitation Commissioner was quashed. Not having been satisfied by the final decision of the High Court the petitioners filed a Civil Suit (No. 606 of 1970) in the Court of Civil Judge and tried to meet the objection regarding finality of the High Court decision in the Letters Patent Appeal, by asserting that new material had been discovered to show that Abdul Sattar not having paid the pre‑emption amount, the decree in his favour remained in effective. The learned Civil Judge observed in his judgment dated 12‑4‑1972 that although the High Court judgment was binding on him, as he put it "under Article 100 of the Constitution of Pakistan", yet, he decreed the suit because he thought that the bar of res judicata as contained in section 11, C. P. C. did not apply. The respondents filed appeal which was allowed by a learned Additional District Judge on 6‑4‑1978. It was held that "the seal of finality has been affixed on the judgment of the High Court. In view of the authority P L D 1971 Lah. 148 I would hold that the civil Court had no authority in law. after the decision of the High Court, to entertain the suit at all as it was hit by the principle of res judicata". The petitioners then filed regular second appeal in the High Court which having been dismissed in limine by a learned Single Judge, they have filed the petition for leave to appeal. The learned Judge in the High Court noted the pleas of the petitioners and repelled the same as follows :‑ "Learned counsel for the appellants contended that since the judgment of the High Court in Letters Patent Appeal No. 24 of 1960 was given by the High Court in exercise of its constitutional jurisdiction and not in connection with a civil suit, it did not stand in the way of the civil suit brought by the appellants. He also maintained that the plea raised in the civil suit that the decree passed in favour of Abdul Sattar Khan had become unexecutable was not raised in the aforesaid Letters Patent Appeal, and, therefore, the decision given in the Letters Patent Appeal cannot operate as res judicata. I am unable to agree with the learned counsel for the appellants. The questions involved in the Letters Patent Appeal were (1) whether the decree passed in favour of Abdul Sattar Khan holds good and (2) whether he is entitled to claim land on the basis thereof ; and both the questions were answered in the affirmative. The appellants challenged the decree on A the ground that Abdul Sattar Khan had not deposited the pre‑emption money and that the decree was against one of the transferees only, but these contentions were not upheld by their Lordships of the High Court who decided the Letters Patent Appeal. The plea that by the passage of time the decree has become unexecutable could also be raised by the appellants during the course of the hearing of the Letters Patent Appeal and if they failed to do so, they cannot raise a new action on the basis of that plea. It is true that the decision given in the Letters Patent Appeal relates to a writ matter, but this does not constitute a valid ground for not applying the general principles of res judicata to the suit brought by the appellants with a view to avoiding the effect of the decree which had stood the test of scrutiny the High Court, not once but twice firstly on the civil side and then on the writ side. In taking this view I am fortified by the dicta/ in the cases of Muhammad Chiragh‑ud‑Din Bhatti v. The Province of West Pakistan 1971 S C M R 447 and Muhammad Shafi and another v. Muhammad Bakhsh and another P L D 1971 Lah. 148." Learned counsel has contended : that the question before the High Court in writ jurisdiction was only regarding `rehabilitation and compensation'. The decision in the Letters Patent Appeal, therefore, would operate as res judicata only in Rehabilitation forums and not in the civil Court ; that the payment of pre‑emption money was not directly and substantially in issue in the High Court, therefore, the bar of res judicata as contained in section 11, C. P. C. would not apply ; that the remedy sought by the petitioners from the civil Court was that the decree passed in India had‑ become ineffective, the High Court in its writ jurisdiction was not competent to deal with this question ; and that para. 52 of the Rehabilitation Settlement Scheme which dealt with the question of giving effect to the decrees passed in India was subsequently deleted, therefore, it should be presumed that such decrees were not intended to be given preference over the entries in the special Jamabandis. In support of his contention on the question of res judicata learned counsel relied on Commissioner of Income‑tax, East Pakistan, Dacca v. Wahiduzza man PLD1965SC171 and Muhammad Swaleh and another v. Messrs United Grain and Fodder Agencies PLD1964SC

97. There is no force in any of the arguments raised by the learned counsel. Ire admits that the petitioners filed the suit after the final decision by the High Court, to remove its effect, so as to get their claim sanctioned from the Rehabilitation Authorities. It is, therefore, not correct to say that the High Court decision would bar the fresh enquiry before the Rehabilitation Authorities only. Whatever the forum .whether of special or genera jurisdiction it will operate as a bar on the re‑opening of the case, except of course to the extent the law permits by way of review/appeal. As was held by this Court in the case of Muhammad Chlragh‑ud‑Din relied B upon by the learned Courts below, even if the provision of section 11, C. P. C. do not apply in terms, in such like cases, the general principles of res judicata would apply. Therefore, there is no force in the second argument of the learned counsel either. In this connection learned counsel also tried to argue that the principle of constructive res judicata would not apply in cases where section 11, C. P. C. does not apply, in terms. There is no reason to exclude a particular kind of res judicata when considering these questions, neither on the basis of any law nor on any other general principle. The next argument of the learned counsel that the High Court was not competent to deal with the questions which have been raised in the civil suit, thus its decision thereon would not operate as res judicata also, ignores the reality that the main controversy was competently brought before the High Court in its writ jurisdiction. After its decision thereon it was open to the parties to challenge the same in accordance with law governing the question of finality of the High Court decisions namely through review and appeal. It was an attempt to bypass the normal legal course by resort to a remedy which was not available to the petitioners under any law or principle. The reliance of the learned counsel on an observation in the case of Muhammad Swaleh to the effect that even the decisions of the High Court and the Supreme Court could be challenged before a Civil Judge 3rd Class, is mis placed. It is with profound respect pointed out that the remarks in this D behalf were of general nature in the field of jurisprudence on the theoretical side. It was observed that when a nullity is brought before any Court, it is entitled and also bound to ignore it. It was in this connection that the remark relied upon by the learned counsel was also made. When citing the same it is often ignored that it was not ruled by this Court (in case of Muhammad) Swaleh that in a situation visualised in the remarks, the party seeking the redress would not be entitled to bring the matter before the same Court (in case of Supreme Curt by way of review or in other proper pro ceedings, and in case of High Court before the same Court as aforesaid or before the Supreme Court), and that the same Court would not be com petent to deal with it or that the only remedy was by way of a civil suit before a civil Court. These questions did not arise in that case. It is also to be kept in view that ‑although section 44 of the Evidence Act permits party to a decision, to show that it was obtained by the other party by fraud or collusion or that the Court acted without competence ; but it does not lay down a mandate that it must be shown in a separate suit and not b moving the same Court or the appellate Court. Notwithstanding the foregoing comment on this question it is necessary to explain that the High Court or the Supreme Court might itself, in view of peculiar circumstances of a given case, when re‑opened before it on any ground which might require further examination in a proper trial by a lower Court, make. such observations, a might enable that Court to deal with the relevant questions including that of nullity. Before closing the discussion on this question, it needs to be mentioned that resort to fresh .litigation in lower forums wherein decisions by Supreme Courts are brought under challenge,, depending upon circumstances of each case, might come in conflict with the provisions of the Constitution where under certain decisions are binding on all Courts. It might also, again depending upon circumstances of each case, involve the criticism of a decision of one Bench of the same Superior Court, by another Bench. For example, in this very case, if the arguments advanced before the learned Single Judge in the High Court, would have prevailed, it would have resulted in the criticism of . a Division Bench ,judgment of the same‑ Court, which decided the Letters Patent Appeal in an earlier round of litigation. Such a course, it is obvious, might lead to, if not entirely illegal at least undesirable consequences. At this stage, it would be instructive to reproduce a passage from the judgment. of this Court in the case of Mian Jamal Shah v. The Member Election Commission, Government of Pakistan., Lahore and others PLD1966SC1. " The learned Judges of the Full Bench next proceeded to consider the contention raised before them that as the Election Commission was constituted of persons having the status of Superior Judges, and as in particular the Member whose order was placed before the Full Bench for judicial review, was himself a Judge of the High Court, no writ could be issued to him.. The learned Judges agreed that no writ could issue to a Superior Court, and this is clearly in accordance with the direction derivable from the definitive provision in Article 98, that no order under that Article shall issue to the Supreme Court or a High Court. But they found that the Member was persona designata in the case, and did not act as a Judge of the High Court and relying on two cases from the English jurisdiction in which it was held that certiorari could issue in respect of an order of a High Court Judge acting as a Tribunal, they came to the conclusion that the Member was "subject to the control of the High Court under Article 98 and is amenable to an order passed by it under that Article". In the two decisions from the English Courts, which have been cited, there was an express provision to the effect that a decision by the Tribunal will not be deemed to be a decision by the High Court, but for the interpretation of Article 98, in respect of this question that considera tion is not of appreciable weight. The learned Judges were in all probability right in considering the Member to be persona designata, and not the High Court or a Judge of the High Court, when acting under section 53, but one may be pardoned for referring here to a small observation in one of the judgments cited by the Full Bench with reference to the idea of a Superior Court issuing a writ to itself, ,viz. :‑ "the process involves the rather ludicrous position that Judges are called upon themselves to show cause to themselves." why their orders should not be quashed. In the present case, the order in question is made by a. Single Judge of the High Court acting as the relevant authority, but it is conceivable that a statute may appoint a Tribunal of any two or three High Court Judges to adjudicate matters arising thereunder, and then indeed the aspect of `ludicrousness' might arise if a writ were sought from a single Judge of the High Court to avoid actions by such Tribunals. In a number of statutes in the United Kingdom express provisions are included which avoid the writ jurisdiction in relation to such adjudications, and it is a matter for consideration whether such provisions should riot be made use of in Pakistan as well. Quite apart from the aspect of `ludicrousness' there are other and more weighty considerations involved, such as the necessity of maintaining a high degree of comity among the Judges of the Superior Courts, which could be urged in support of such a provision." The question involved in the other case relied upon by the learned counsel (Commissioner of Income‑tax, East Pakistan, Dacca) was whether principle of res judicata was applicable to decisions of the Income‑tax Authorities. The observations made therein have no relevance to this case and it does not need any detailed examination. The rule which is fully attracted to this case, as already mentioned, was laid down in Muhammad Chiragh‑ud‑Din Bhatti that even if section 11 of the Civil Procedure Code may not, in terms, apply in support of the plea o res judicata, it can hardly be disputed that the general principles of res judicat are clearly attracted to debar a party from re‑agitating the matter afresh b a civil suit, which had been put at rest by a judgment of the High Courq passed in writ jurisdiction. The last argument of the learned counsel based on the deletion of para. 52 of the Rehabilitation Settlement Scheme deals with the merits of the case, which we are of the view could not be reopened on account of bar of res judicata. Otherwise too, the argument is of no substance. We do not find any force in this petition. It is accordingly dismissed. S. A. H. Petition dismissed.