1982 PLP 68 (CLC)

2. Issue No. 1 relating to res judicata was partly decided in favour of the respondents and Issue No. 2 was decided in favour of the appellants and the suit was dismissed as being barred by time vide judgment and decree of the trial Court dated 14‑1‑1978. The learned Additional District Judge observed that the case of the respondents being based on fraud the suit was not barred by time and remanded the case for fresh decision on merits vide his judgment dated 21‑7‑1979.

3. The learned counsel for the appellants has challenged the findings of the trial Court on Issue No. 1 and that of the lower appellate Court on the question of limitation. It is contended that after the decisions of the Settlement Authorities, the High Court and the Supreme Court the respon dents could not be permitted to challenge the same orders in a civil suit and the proceedings were barred under the principle of res judicata. It was next contended that there was no material placed on record for the alleged fraud having come to the knowledge of the respondents after the decision of the Supreme Court. Both the contentions raised by the learned counsel need thorough examination. The precise fraud on the basis of which the suit bad been filed has been detailed in paragraph 12 of the plaint which may be reproduced below:‑ "

12. That from the facts and circumstances, as submitted above, it is abundantly clear that defendant No. 1 obtained the transfer of the property in dispute by committing fraud and misresentation of acts by having collusion with the Settlement Authority and also without having the disposal of the various applications of the plaintiffs disposed of in accordance with law. It was the plaintiffs who had either applied for the transfer of the property in dispute under Settlement Scheme No. I mentioned above earlier than the defendant No. 1, or it were the plaintiffs who had approached the Settlement Authorities for the transfer of the property in dispute on negotiations prior to any attempt on the part of the defendant No.

1. Keeping plaintiffs in dark about the disposal of the property and also not disposing of the applications for transfer of the plaintiffs was a mala fide act on the part of the Settlement Authorities as well as the Defendant No.

1. Moreover, the Chief Settlement Commissioner had not been empowered before 30th of May, 1960, to dispose of `Big Mansions' under Negotiation Scheme. The transfer in favour of the defendant No. 1 by the exchange of the letters referred to above by the Settlement Commissioner and defendant No. 1 had been completed before 30‑5‑1960 which transfer on the very face of it was ab initio void and no transfer in the eye of law." In paragraph 14 it was stated that the facts of fraud and misrepresentation committed by defendant No.1 upon the plaintiff's has resulted in the passing of void order of transfer and this fraud and misrepresentation had neither been adjudicated upon by the Settlement Authorities nor the higher Courts and that it was only in the civil Courts that the dispute of fraud and mis representation could be challenged and the details of fraud were given in the sub‑paras. As regards the cause of action it was stated in paragraph 16 that the action firstly arose on 15‑6‑1960 when the property in dispute was, originally, transferred. Secondly when the plaintiffs lost their case in the Supreme Court and lastly a week ago when the defendants Nos. 1 to 4 refused to treat the said order of transfer as void. In the prayer all the orders of the Settlement Authorities including that of the higher Courts were prayed to be declared void, inoperative with a direction to respondents Nos. 5 to 7 to transfer the property in dispute in favour of the plaintiffs. In support of the two issues referred to above Riaz‑ul‑Haq, Special Attorney of the plaintiff No. 1, appeared as a witness and in his statement he narrated as to how the Settlement Authorities and the High Court and Supreme Court decided the case against the plaintiffs, The only point brought in the evidence was that during the proceedings the file was not traceable and was not even produced before the Supreme Court and that a fictitious application had been produced. In the statement it was not explained as to when this alleged fraud had come to the knowledge of the plaintiffs. On the contrary the filing of the suit was connected with the dismissal of the review petition before the Supreme Court. It would be pertinent to mention in the exact words of P. W. 1 as to how the plaintiffs got the cause of action to file a suit. From the narration of the statement above, it would be abundantly clear that the sole purpose of the filing of the suit was to set at naught the decisions of the High Court in writ petition, L. P. A. and also those of the august Supreme Court on the flimsy grounds of the alleged fraud. The finding of the learned trial Court on the question of res judicata was that the plaintiffs had yet to show as to what was the active fraud and collusion on the part of the defendants Nos. 1 to

4. The allegations of fraud and collusion have not been discussed in the judgment Exh. D/1 and Exh. P. 4 and as such the principle of res judicata does not apply. The above principle is contrary to the dictum of their Lordships as laid down in Muhammad Chiragh‑ud‑Din Bhatti v. Province of West Pakistan (1971 S C M R 447). It was held in this case that even if section 11 of the Civil Procedure Code does not in terms apply in support or the plea of res judicata, in a writ proceedings it can hardly be disputed that the general principles of res judicata are clearly attracted to debar the petitioner from reagitating the matter afresh by a civil suit, which had been put at rest by a judgment of the High Court passed in writ jurisdiction. It was further observed that the civil Court could not bypass or override the orders of the High Court competently made in another jurisdiction on the same subject between the same parties. In this case the order of removal made by the Commissioner was challenged by the petitioner in the writ jurisdiction and the same matter was reagitated in a civil suit. The observations of their Lordships while refusing to grant leave to appeal against the order of High Court dismissing the suit may be quoted below:‑ "The principle on which the petitioner had attacked the Commissioner's order in his civil suit was also directly and substantially raised by him earlier in his writ petition in the High Court for the same reliefs. The High Court had finally settled that issue between the parties by observing that the services of the petitioner had been competently terminated by the Government, and that the defect in the Commis sioner's order was covered by the order subsequently made by the Provincial Government. Even section 11 of the Civil Procedure Code may not in terms apply in support of the plea of res judicata, it can hardly be disputed that the general principles of res judicata were clearly attracted to debar the petitioner from reagitating the matter afresh by a civil suit, which had been put at rest by a judgment of the High Court passed in writ jurisdiction. The civil Court could not have bypassed or overridden the orders of the High Court competently made in another jurisdiction on the same subject between the same parties." We see no substance in this petition, which is dismissed."

4. In Muhammad Shafi v. Muhammad Bakhsh (P L D 1971 Lah. 148), it was observes'.. that where a decision has been given by High Court, on the merits of a. matter, even though the case was decided in limine it should, subject to appeal, etc. be treated as final and should not be allowed to be reagitated before the civil Courts merely because certain pleas which could have been taken were not taken. The observations in this behalf at page 151 may be reproduced below:‑ "From this point of view we consider that where a decision has been given by this Court, on the merits of a matter, even though the case was decided in limine it should, subject to appeal, etc. be treated as final and not open to be reagitated merely because certain pleas which could have been taken were not taken. Since the decision was on the merits of the case, failure to raise a particular contention cannot be pleaded as a sufficient justification for reagitating the same matter before the civil Court. In the proceedings under Article 98 this Court had not left the case undecided on merits but had consciously for reasons stated in its order, upheld the validity of the orders passed by the Settlement Authorities. Consequently we consider that the subordinate Courts were bound by the decision made by this Court and hence the Additional District Judge was justified in accepting appeal on that short ground. We are, therefore, in agree ment with the learned Single Judge that the second appeals were liable to dismissal."

5. In a D. B. judgment of this Court reported as Syed Mir Ahmad Shah v. The Pakistan etc. (P L D 1979 Lab. 599), it was observed that the pronouncement by Supreme Court regarding merits of a case shall operate as res judicata even the same has been made while disposing of a matter in limine. In this case the Supreme Court while deciding the review petition had observed that the impugned order of the Settlement Authority was a lawful order. It was held that the subsequent suit and proceeding thereon including the L. P. A. were not competent on the principle of res judicata. The deference which should be shown to the decisions of the Supreme Court would be evident from this judgment. The facts of the Division Bench case were that the appellant in the first instance, challenged the order of transfer before the High Court in writ jurisdiction and had also filed a petition for special leave to appeal. A review application was filed which had been dismissed with the observation that the High Court had no jurisdiction to interfere with a lawful order passed by the Settlement Authorities. The appellant then filed a suit out of which the L. P. A. had arisen which was dismissed holding that in view of the decision of the Supreme Court on the general principle of res judicata the suit and the subsequent proceedings were held to be not competent.

6. Reference may also be made to Mst. Tauheed‑un‑Nisa v. Chief Settlement Commissioner, Baluchistan, etc. (P L D 1978 Quetta 74), in which it was held that a transfer of a plot made in favour of the petitioner and approved in the writ petition would operate as res judicata between the two contestants and the Chief Settlement Commissioner was not authorised to re‑open the matter and reverse the judged issue. The appellant had only produced Exh. D/1, copy of the judgment of the Supreme Court, dated 14‑1‑1971, disposing of the Civil Appeal No. 210 of 1970 in which all the contentions raised by the appellant were dealt with.

7. The learned counsel appearing for the respondents submitted by this Court did not have the power to deal with the question of res judicata a decided by the trial Court. The contention has no force. The suit had bee dismissed by the trial Court as being time‑barred and the question o ,g res judicata had been partly decided in their favour. The appellants can even now challenge the findings of the trial Court. The powers of the Court to decide a matter in appeal on any point arising out of the case are unfettered and reference may be made to the provisions of Order XLI, rule 2, C. p. C. which has been made applicable to the appealable Orders under rule 2 of Order XLII, C. P. C. Rule 2 of Order XLI, C. P. C. is reproduced below:‑ "

2. Grounds which may be taken in appeal.‑The appellant shall not, except by leave of the Court, urge or be heard in support of any ground of objection not set forth in the memorandum of appeal; but the Appellate Court, in deciding the appeal, shall not be confined to the grounds of .objection set forth in the memorandum of appeal or taken by leave of the Court under this rule Provided that the Court shall not rest its decision on any other ground unless the party who may be affected thereby has had a sufficient opportunity of contesting the case on the ground."

8. The case was argued, firstly, on 2‑11‑1980 on which date 1 had called upon the respondents to address me on the question of res judicata for which the time was taken and the arguments concluded on 3‑11‑1980. A perusal of the judgment of the learned Additional District Judge would show that much emphasis had been placed on the so‑called fraud and misrepresentation. Assuming that there was some fraud, the same could be made a ground for review and actually the review petition had been filed before the Supreme Court. The point that arises for consideration is whether a litigant who has lost his case up to the Supreme Court can be permitted to reagitate the matter in the civil Courts and pray for cancellation of the orders of the superior Courts by terming the same as having been obtained by fraud and misrepresentation. The judgments which I have examine above clearly show that such a practice should not be permitted. The relevant portion of the statement of P. W. 1 has been quoted above t show that the alleged fraud was not independent of the proceedings and the point could be agitated before the High Court and the Supreme Court.

9. As a result of the above discussion I upset the finding of the learned trial Court on Issue No. 1 as contained in his judgment dated 14‑1‑1972 and hold that not only the points which were taken before the B superior Courts in writ jurisdiction shall operate as res judicata but also the points which could be taken and had not been taken. The principle of constructive res judicata is as much applicable to the decision given in the writ jurisdiction as in ordinary civil suits. Provisions of the Civil Procedure Code have been made applicable to the writs and reference in this behalf may be made to Hussain Bakhsh v. Settlement Commissioner, Rawalpindi etc. (P L D 1970 S C 1). If the orders passed in writ jurisdiction are not to attain finality there will be no end of litigation and the present case is a conspicuous example of the same. The fresh proceedings have been vitiated only on the ground that the original settlement file had not been produced before the High Court or for that matter before the Supreme Court and as such all orders of the Settlement Authorities, those of the High Court and the Supreme Court be declared to be void. I think there cannot be any more abuse of the process of the Court than the filing of the present suit in the circumstance of the case.

10. Undoubtedly, fraud vitiates all solemn proceedings and is an accepted principle of law and even no authority is needed in support of this proposition. The fraud which vitiates proceedings is external to the matter in issue. If the Courts have to decide the question of transfer then the authority of transfer duly examined by the Court cannot be said to be vitiated by fraud, which pertains to the very merits of the case. This is exactly what the respondents intend to prove in the case. The so question before the High Court and the Supreme Court was whether the transfer had been validly made in favour of the respondents and if a finding had been given that will operate as res jwdicata in all subsequent proceeding including the civil suit.

11. Now the question of limitation relating to Issue No. 2 may also be adverted to. As already shown above there was nothing on record to show as to when the alleged fraud had come to the knowledge of the respondents. The decision of the Supreme Court could not furnish a starting point in the filing of the suit. Article 120 of the Limitation Act was not attracted to the facts of the present case. The learned counsel for the respondents has relied on Article 95 of the Limitation Act which may be reproduced below: To set aside a decree obtained Three years When the fraud be by fraud, or for other relief on comes known to the ground of fraud. party wronged. The learned counsel for the respondents argued that the case of the respon dents fell under the latter part of the Article, i.e. "for other relief on the ground of fraud." The prayer made in the suit has already been noted above. The case of the respondents was directly under the first part, i.e. "to set aside the decree obtained by fraud" and as ever the limitation would start when the fraud becomes known to the party wronged. This being a specific fact in the knowledge of the respondents the onus would lie on the respondents to show as to when they acquired the knowledge and for that reference may be mule to section 106 of the Evidence Act. In the present case neither the respondents have proved when the alleged fraud had tom to their notice nor any fresh cause was disclosed after the dismissal of the appeal in the writ petition Since the original order of transfer dated 960 had been impugned before the trial Court the suit cannot be said to be within time as provided under Article 120 of the Limitation Act. The findings of the learned Additional District Judge on Issue No. 2 are hereby set aside with the result that the suit would be ordered to be dismissed both on the question of res judicata as well as the question of limitation.

12. This appeal is accepted and order of the Additional District Judge, Lahore dated 21‑7‑1979 is hereby set aside and also the findings of the trial Court dated 14.1‑1978 on Issue No.

1. However, in the circumstances of the case, there will be no order as to Costa. W. Y. H. Appeal dismissed.