2001 PLP 3348 (YLR)

MUHAMMAD YUNUS SURAKHVI, J.‑‑‑This appeal, by way of leave of the Court, has been directed against the judgment passed by the High Court on 7‑6‑2001, whereby the application filed by the appellants herein under section 151, C.P.C. was dismissed.

2. This case has a chequered history as this is the fourth round of litigation between the parties. Plots Nos.48‑A and 48‑B, situate in Sector C/2, Mirpur were marked on open space and allotted in favour of appellants on 23‑12‑1967. The allotment was challenged through writ petition which was accepted by the High Court of Azad Jammu and Kashmir on 19‑3‑1978. The appellants herein filed an appeal in the Supreme Court of Azad Jammu and Kashmir which was dismissed on 30‑5‑1979. A review petition was also tiled by the appellants but the same was also dismissed by the Supreme Court. The appellants got the alternate plots bearing Nos.111‑J and 111‑K in Sector F/3, Mirpur. The appellants again got allotment of Plots Nos.48‑A and 48‑B from the Chairman Municipal Committee on 5‑6‑1990 and temporary allotment orders were issued on 23‑7‑1997. On 5‑11‑1997 Mst. Zareen Akhter, respondent No.1 herein, filed a writ petition, whereby she challenged the allotments made in favour of appellants. Another writ petition was filed by the appellants. Both the writ petitions were decided by a Single Judge of the High Court. The writ petition filed by the appellants was dismissed while the one filed by the respondent was accepted. The appellants filed an appeal in the Supreme Court which was dismissed on 23‑12‑1998. The appellants filed a Miscellaneous Application on 22‑12 1999 in the High Court for setting aside the judgment recorded in three Writ Petitions Nos.141, 142 and 75 of 1997, decided together by a consolidated judgment of the High Court dated 17‑6‑1998. It was alleged by the appellants that the Bench in the aforesaid three petitions was not constituted by the Hon'ble Chief Justice of the High Court as visualised under Rule 8 of the Azad Jammu and Kashmir High Court Procedure Rules, 1984, instead the same was constituted by Mr.Justice Ch.Muhamrnad Taj, who was senior, amongst the Judges sitting at Mirpur Circuit, who entrusted the cases to Mr.Justice Muhammad Siddique Farooqi (who stands retired by now) for their hearing and disposal. The learned Chief Justice of the High Court vide the impugned judgment dated 7‑6‑2001 dismissed the application filed by the appellants on the sole ground that as the matter has finally been decided by the Supreme Court, hence any order on this application would have the effect of setting at naught the findings of the Supreme Court in one way or the other which is beyond the jurisdiction of the High Court.

3. In support of appeal it was vehemently contended by Mr. Liaqat Ali Khan, the learned counsel for the appellants, that the observation made by the learned Judge in the High Court that it could not upset the decision of the Supreme Court is totally misconceived because the appeal tiled earlier by the appellants was dismissed as being incompetent on account of not filing the relevant copies of writ petition alongwith the memorandum of appeal. Thus the Supreme Court on account of non‑compliance of provisions of Order XIII, Rules 1 and 3 of the Supreme Court Rules observed that the appeal was incompetent. However, there was no adjudication by the Supreme Court whatsoever so far as the merits of the case are concerned. The learned counsel contended that by dismissing the appeal, the same would be deemed to be dismissed for non compliance of mandatory provisions of Order XIII, Rules 1 and 3 of the Supreme Court Rules and it could not be construed to be a finding on merits The learned counsel for the appellants in support of his contentions placed reliance upon a case reported as Government of Pakistan and another v. Tariq Hussain Farooqi and 3 others PLD 1984 SC (AJ&K) 47 wherein it was observed as follows:‑‑ "We, therefore, are in agreement with the learned counsel for the respondents that non‑compliance of the mandatory provisions of Order XIII, Rules 1 and 3 would render the petition incompetent. It would thus mean that there was no valid institution of petition within the period of limitation prescribed under the rules." The learned counsel on the strength of the aforesaid authority contended that by dismissing the appeal under the provisions of Order XIII, Rules 1 and 3 of the Supreme Court Rules it would be deemed as if there was no appeal validly instituted and the decision thereof was not a bar for the High Court to determine the real point in controversy as to whether the senior most sitting Judge of the High Court was competent to constitute the Bench or not in absence of the learned Chief Justice. It has also been contended by the learned counsel for the appellants that a notification was issued by the learned Chief Justice of the High Court on 16‑10‑1998 to the effect that in his absence at any Circuit Bench the senior most Judge shall be competent to constitute the Benches but this notification would have no relevancy to the case in hand as in the instant case on 18‑11‑1997 an order was passed by the senior most Judge sitting in the Circuit Bench at Mirpur, i.e. Mr. Justice Ch.Muhammad Taj, that the case be heard and disposed of by Mr. Justice Muhammad Siddique Farooqi, who dismissed the writ petitions filed by the appellants on 17‑6‑1998 on the ground that the allotments made in favour of appellants were illegal and as such were non‑existent. It was also observed by the learned Judge that the claim of appellants has been turned down even by the Supreme Court so the matter has become a past and closed transaction. It was also observed that under section 11, C.P:C. if a ground was available to a party and the same is not raised, it shall be treated to have been decided against that party. The appellants moved a Miscellaneous Application No.6 of 1989 before the Supreme Court seeking declaration to the effect that the judgment of this Court dated 17‑5‑1983 creates no bar to the Chairman, Municipal Committee for considering the question of allotments of Plots Nos.48‑A and 48‑B, Sector C/2 Mirpur Town, in view of fresh rules framed in the year 1985. The appellants claimed that the aforesaid two plots were previously allotted to them by the competent authority but their allotment was cancelled as a result of writ petition filed by Ajaib Hussain and others. This miscellaneous application was also dismissed by the Supreme Court on 29‑1 1989 on the ground that a miscellaneous petition seeking clarification or interpretation of order of this Court is not tenable. The party for the redress of its grievance may approach to the relevant forum, After having exhausted all the possible remedies, the appellants then moved an application before the High Court under section 151, C.P.C. seeking the inherent jurisdiction of the High Court on 22‑12‑1999 for setting aside the judgment of the High Court in three writ petitions bearing Nos.141 of 1997, 142 of 1997 and 75 of 1997 decided together by the Single Judge of the High Court on 7‑6‑1998. The point canvassed on behalf of appellants was that the Bench in Petitions Nos. 141 of 1997 and 142 of 1997 was not constituted by the Chief Justice as warranted by Rule 8 of the High Court Procedure Rules, instead it was constituted by Mr. Justice Ch.Muhammad Taj, who was senior amongst the Judges sitting at Mirpur, who entrusted the cases to Mr. Justice Muhammad Siddique Farooqi. This application was also dismissed by Mr. Justice Manzoor Hussain Gilani, the learned Chief Justice, on 7‑6‑2001 on the ground that from the perusal of file it revealed that the judgments in the above referred petitions were later on challenged in the Supreme Court through Civil Appeal No. 16 of 1998 which was decided by the Supreme Court on 23‑12‑1998 and the appeal was dismissed. It was also observed by the learned Chief Justice that the matter is finally decided by the Supreme Court and the point now taken is neither agitated before the Supreme Court nor has been decided by that Court, hence any order on this application would have the effect of setting at naught the findings of the Supreme Court in one way or the other which is beyond the jurisdiction of the High Court. It is the aforesaid judgment of the learned Chief Justice of the High Court dated 7‑6‑2001 which is the subject‑matter of present appeal.

4. The learned counsel for the appellants submitted with vehemence that the High Court should have attended to the crucial point that the Bench constituted by the senior most Judge in absence of Chief Justice was incompetently constituted and in case the same was illegal, the judgment given by the learned Judge was beyond any jurisdictional competence. The learned counsel also contended that the point being legal and of vital importance should have been attended to by the High Court which failed to resolve the same.

5. In reply Ch. Muhammad Azam Khan, the learned counsel for respondent No. 1, strongly supported the impugned judgment passed by the High Court and pressed into service the submission that the case has finally been decided by the Supreme Court of Azad Jammu and Kashmir and the judgment of Supreme Court being final, the High Court had no jurisdiction to pass any order in respect of the same matter. The learned counsel contended that the miscellaneous application filed after the pronouncement of judgment of Supreme Court is not tenable.

6. Mian Muhammad Saeed, the learned counsel for respondents Nos.2 to 5, also owned the arguments advanced by Ch.Muhammad Azam Khan, the learned counsel for respondent No.1. He submitted that the inherent powers cannot be exercised when the finality had already attached to the judgment of the Supreme Court. The learned counsel also contended that the appellants had been guilty of gross negligence as the order of constitution of Bench was passed by Mr. Justice Ch. Muhammad Taj on 18‑11‑1997 but the miscellaneous application under section 151, C.P.C. was moved on 22‑12‑1999; thus the application was barred by limitation and even on this score the appeal was liable to be dismissed.

7. Ch. Muhammad Mushtaq, the learned counsel for Azad Government, supported the contentions of Ch. Muhammad Azam Khan and Mian Muhammad Saeed.

8. After hearing the learned counsel for the parties and perusing the relevant record, it may be stated that when Plots Nos.48‑A and 48‑B were allotted to appellants on a writ petition filed by Muhammad Fazil and others, the allotments of the said plots were cancelled from the name of appellants on the ground that on the open space no plots could be marked vide the judgment of the High Court dated 19‑3‑1978. Against the aforesaid judgment of the High Court an appeal was preferred in the Supreme Court which was also dismissed on 7‑5‑1979. The review petition filed against the judgment of Supreme Court dated 7‑5‑1979 was also dismissed vide the order of Supreme Court dated 17‑5‑1983. Thereafter a miscellaneous application was moved before the Supreme Court seeking declaration to the effect that the judgment of Supreme Court dated 17‑5‑1983 creates no bar to the Chairman, Municipal Committee for considering the question of allotments of Plots Nos.48‑A and 48‑B, Sector C/2 Mirpur, in view of fresh rules framed in the year 1985. This application was also dismissed by the Supreme Court on 29‑1 1'989 on the ground that a miscellaneous petition seeking declaration or interpretation of order of this Court is not tenable. It was further observed by this Court that party for the redress of its grievance may approach to the relevant forum. On 31‑1‑1988 Plots Nos.111‑J and 111‑K, measuring 1 Kanal each situate in Sector F/3, Mirpur, were allotted to the appellants as alternate plots in lieu of Plots Nos.48‑A and 48‑B which were cancelled. On 22‑12‑1999 a miscellaneous application was moved by the appellants before the High Court under section 151, C.P.C. for setting aside the judgment of the High Court recorded in three writ petitions bearing Nos. 141 of 1997, 142 of 1997 and 75 of 1997, decided together on 17‑6‑1998.

9. It is astonishing to point out that in all the three writ petitions, mentioned above, the appellants had been appearing before the learned Judge, Mi. Justice Muhammad Siddique Farooqi, and had been pursuing their remedy but during the pendency of all these writ petitions never raised any objection to the effect taut the Bench in the said cases has not been constituted by the Chief Justice as required under Rule 8 of the Azad Jammu and Kashmir High Court Procedure Rules, 1984, but has been constituted by a Senior Judge sitting at Circuit Mirpur. The abovementioned three writ petitions were decided by the learned Judge in the High Court through a consolidated judgment dated 17‑6‑1998, whereby he allowed the writ petition filed by Mst. Zareen Akhter and quashed the allotments of Plots Nos.48‑A and 48‑B, whereas the other two writ petitions filed by Khurshiu Ahmed and Ch. Ajaib Hussain were dismissed. This judgment of the High Court dated 17‑6‑1998 was challenged by way of appeal by Ch. Ajaib Hussain and Khurshid Ahmed which was dismissed by the Supreme Court on 23‑12‑1998 on account of non‑filing of certified copy of grounds of application for ‑‑issuance of writ of mandamus. ' Even in this appeal no such ground was taken by the appellants that the Bench constituted in the aforementioned three writ petitions was not in accordance with the provisions of Rule 8 of the Azad Jammu and Kashmir High Court Procedure Rules, 1984, as such it has rendered the judgment recorded by Mr. Justice Muhammad Siddique Farooqi on 17‑6‑1998 as invalid.

10. The appellants after submitting themselves before the jurisdiction of the learned Judge in the High Court and thereafter when the ultimate decision of the case went against them, they challenged the judgment recorded by Mr. Justice Muhammad Siddique Farooqi before the Supreme Court but failed to take the ground that the Bench was not properly constituted either before the High Court or before the Supreme Court. It is now a settled law that if a party submits itself before the‑jurisdiction' of a Court and never raises the objection of lack of jurisdiction of that Court, cannot turn round with a voltaface when the judgment is given against that party to say that the Court hearing the cause had no jurisdiction to hear' the same. It may also be pointed out that the Bench was constituted by Mr. Justice Ch. Muhammad Taj on 18‑11‑1997, but the miscellaneous application for the first time was moved by the appellants on 22‑12‑1999, which on the face of it, seems to be hopelessly time‑barred. 11. . So far as the question of exercising inherent powers is concerned, it may be pointed out that when a remedy is available to a party by way of appeal or revision, the inherent powers cannot be exercised in favour of that party. In the instant case the appellants availed the remedy of appeal before the Supreme Court but when their appeal was dismissed on 23‑12‑1998 they moved the miscellaneous application on 22‑12‑1999 even after the lapse of one year from the date of judgment of the Supreme Court. The conduct of appellants throughout during the proceedings has been negligent and indolent, as such they never deserved that inherent powers should have been exercised in their favour by the High Court or by this Court. The matter of plots in dispute stands finally concluded by the judgment of this Court dated 23‑12‑1998, therefore, the same could not have been reopened either by the High Court or by this Court.

12. Even otherwise we are of the view that the appellants could not be allotted Plots Nos. 48‑A and 48‑B as in lieu of these plots on 31‑1‑1988 they obtained the allotments of Plots Nos.111‑J and 111‑K, measuring 1 Kanal each, situate in Sector F/3, Mirpur.

13. In the light of what has been stated above, finding no force in this appeal, the same stands dismissed with costs. In view of dismissal of appeal, the stay order already confirmed by this Court vide order dated 23‑10‑2001 also stands vacated. H.B.T./213/SC(AJ&K) Appeal dismissed.