P L D 1967 Lahore 18 (PLP)

3. As a result of the aforesaid judgment of the High Court in Writ Petition, the earlier mutation was reviewed by the Assistant Collector, 2nd Grade on 5th April 1958, with the result that Fazal was excluded from a share in the property of Shadi, on whose death it was held by his mother, Mst. Began as widow of Shadi deceased.

4. On 31st May 1960, Fazal filed an appeal against the order of the A. R. C. dated the 5th of April 1958, obviously on the ground that the Full Bench of this Court had taken a view favourable 'to him in Umar Daraz All v. Khurshid Ali and others (P L D 1960 Lab. 834). The appeal was rejected by the D. R. C. on 1st March 1961. He then filed a revision before the Additional Settlement Commissioner, which was rejected vide order dated 16th June 1962, Annexure `B'. In this impugned order, the learned Additional Settlement Commissioner being fully aware of the correct legal position, as laid down by the Full Bench judgment, declined to give effect to the same on the ground that it was not possible for him to go beyond the High Court's judgment in the case between the same parties, unless it was set aside by the Supreme Court. It is this order which has been called in question in the present petition, seeking issuance of a writ of mandamus directing the Rehabilitation Authorities to decide the question in accordance with the instructions contained in paragraphs 46 and 46‑A of the Re‑Settlement Scheme.

5. The main contentions raised by the learned counsel for the petitioners are: (1) that on 16th June 1962, when the Additional Rehabilitation Commissioner had passed the impugned order, dismissing the revision petition filed by Fazal predecessor‑in‑interest of the present petitioners, against the respondents, there was no doubt or dispute as to the correct legal position on the issues involved in the case, which had been decided by the Full Bench of this Court as far back as 11th of May 1960, and as such, the Additional Settlement Commissioner was not justified in taking the view that he was not competent to interfere in face of earlier judgments of the High Court which were , un-favourable to the petitioners: (2) That this is the unique case in which the question of inheritance of the property of a deceased right‑holder held by his widow as life estate had been decided according t o custom contrary to the law on: the point, consistently followed all ever, and as such, it would be only too fair to rectify this mistake in the interest of justice and undo the wrong done to the present petitioners. (3) That the plea of res judicata though applicable to writ petitions could not be invoked in the instant case, inasmuch as the law had already changed during the interregnum, in consequence of which the Rehabilitation Department had issued general instructions to review all such cases decided under custom and decide them afresh in accordance with paragraphs 46 and 46‑A of the Rehabilitation Scheme.

6. As against this, the sole contention of the learned counsel for the respondents is that the matter having already been finally concluded between the parties by a Division Bench of this Court in Writ Petition No. 694/56, decided on 28th of November 1957, the present petition would be barred on the principle of res judicata, particularly when the petitioners had not preferred an appeal before the Supreme Court against this judgment, which as the proper remedy available to them.

7. As regards the correct legal position on the point whether inheritance to the life estate of Mst. Began is to be governed by Custom or Shariat, there is absolutely no doubt or dispute. The position has been frankly conceded by the learned counsel for the respondent that inheritance would be governed by sections 46 and 46‑A of the Settlement Scheme under which the petitioners are entitled to 1/4th share of the property of Shadi deceased, who was succeeded under Custom by his widow Mst. Began. The sole ground on which the present petition is resisted is that of res judicata. It is not disputed that on 16th April 1962, when the Additional Rehabilitation Commissioner passed the impugned order, the legal position had changed in view of the Full Bench authority, and but for the hurdle of the High Court's judgment which stood in his way, the Additional Rehabilitation Commis sioner would have straightway accepted the revision petition. In 'the circumstances, the sole question which falls to be determined by me is whether the present writ petition is to be thrown out on the principle of res judicata being hit by the Division Bench judgment delivered in Writ Petition No. 694 of 1956. 7‑A. Having given my anxious consideration to this point, I am of the view that although by and large the principle of res judicata is also applicable to writ petitions, with a view to situated in shujabad Urban Area district Multan The case of the petitioners is that the area of the land in question being less than three acres the petitioners applied for the allotment of the same. On the said kapplication the record keeper on the 9th of January 1961 put up the following report: The Naib-Tehsilder (Gardens) passed the following order on the said application The provisions of this paragraph shall apply and shall be deemed to have always applied to all cases of inheritance of refugee right‑holders whether decided under this or any other like scheme which had at any time been in force. ' "

8. In support of his contention that the principle of res judicata did not apply to the instant case, the learned counsel for the petitioners relied on Mst. Sardar Bibi v. Abdul Latif (P L D 1952 Lah. 294). The Head Note (d) of this D. B. Judgment delivered by Kayani, C. J., reads as follows: "(d) Res judicata‑Principle‑Will not apply if law changed in meantime whether by statute or trend of judicial authority. Where a previous decision had declared the finality of a certain will under custom but in the meantime West Punjab Muslim Personal Law (Shariat) Application Act (IX of 1948) had come into force which governed wills, the previous decision could not stand in the way of will being declared as of no binding force by reason of the new statute." I am definitely of the view that this ruling of their Lordships aptly applies to the instant case. Since the law on the point had been amended from time to time, partly by notification and partly as a result of legal decisions, the present writ petition B would not be hit by the principle of res judicata, which even otherwise is not to be strictly and rigidly applied as an inflexible rule to all cases under writ jurisdiction, irrespective of the circumstances of each case.

9. Equity is obviously in favour of the petitioners who could not pursue the case to the Supreme Court by preferring an appeal against the judgment of the Division Bench of this Court and as stated b the learned counsel for the petitioners it may be a fact that this case is the unique and solitary exception to the application of paragraphs 46 and 46‑A in the matter of inheritance of the property of a deceased right‑holder.

10. When this case came up for the first time before my learned brother Mushtaq Hussain, J. on 16th April 1963, his Lordship while referring it to the first D. B. observed as follows: "This case be placed before the 1st D. B. as the first case was decided by it. Their Lordships may think of treating it as a review petition." The case was accordingly placed before the 1st D. B., consisting of the then Chief Justice Manzur Qadir and J. Ortcheson, J. Their Lordships observed in the admitting note as follows:‑ "The law declared by a Full Bench of this Court and later endorsed by a judgment of the Supreme Court is in favour of the petitioners. The decision in the previous writ petition by the petitioners, however, is against them. The matter is stated to be still pending before the Rehabilitation authorities, and it is said that the Rehabilitation authorities have taken up the position that they are unable to apply the correct law in the case of the petitioners because there is a specific direction in their case, even though erroneous, which is in their way."

11. In view of the above observations of their Lordships it is quite possible that the present petition might have been treated as a review petition, if the procedure in the meantime had not been changed and the case had not been referred to me E in Single Bench. Once the petition had been treated as a review petition, I am absolutely in no manner of doubt that it would have succeeded.

12. The learned counsel for the respondents in addition to some Indian authorities, relied upon Qasim Shah v. Province of West Pakistan and another (P L D 1960 Pesh. 68); Subedar Muhammad Afzal v. Syed Nafis Ahmad and others (P L D 1962 Lah. 45) and Ch. Rehmat Ali and others v. Custodian, Evacuee Property, Lahore and others (P L D 1966 Kar. 31) in support of the application of the principle of res judicata to the instant case. Having carefully considered these authorities, I am definitely of the view that while on the one hand these authorities are unanimously in favour of the application of the principle of res judicata to cases under Writ jurisdiction of the High Court, they are on the other quite distinguishable from the instant case, inasmuch as no change in law had been effected during the interregnum between the earlier and the subsequent decisions and in order to give finality to judicial decisions, the same point was not allowed to be re‑agitated in the subsequent petitions. On the contrary, the position in the instant case as stated earlier is quite different and the case could also have been treated as a review petition with all chances of success.

13. It may be contended on behalf of the respondents with some force that Fazal, the predecessor‑in‑interest of the petitioners did not prefer an appeal before the Supreme Court against the Division Bench authority. May be, as stated by the learned counsel for the petitioners that having twice failed in the High Court, he either did not consider it worth while to go to the Supreme Court or alternatively did not have the means to do. It was after the Full Bench had given a ruling favourable to him that he re‑agitated the matter before the Rehabilitation Authorities which he had every right to do. It was only in view of a technical objection that the authorities refused to give effect C to the Full Bench ruling which had been re‑armed by the Supreme Court, whose legal pronouncements are the law of the land to be followed by all subordinate Courts in the country. Once the Supreme Court had taken this view, the Rehabilitation Authorities, like all subordinate Courts including the High Court were bound to follow the dictum of their Lordships which was in the nature of a decision in rem. Accordingly I hold that the objection that the petitioners did not go to the Supreme D Court, and the judgment of the Division Bench against them had attained finality, has no force and is overruled.

14. For the foregoing reasons, I allow the petition, remand the case to the Additional Settlement and Rehabilitation P Commissioner, Lyallpur with the direction that he should decide the case afresh in accordance with law. The parties are, however, left to bear their own costs. A. H. Petition allowed.