1983 PLP 974 (SCMR)

Muhammad Afzal Zullah C, J.‑Ghulam Rasool petitioner has given the facts and urged this petition for contempt. During the hearing he was assisted by a person who claimed to be his brother. The opposite party is absent ; however, a person who claimed to be the son‑in‑law of Abdul Ghani respondent remained present and participated in the proceedings. According to the facts stated in the petition, Hussain Bakhsh, the pre decessor of respondents 3 to 5 sold land in favour of Muhammad Khan predecessor‑in‑interest of the petitioner in 1963. Ahmad Din the predecessor of respondents 1 and 2, while challenging the said sale through a declaratory suit under custom, inter alia, alleged that the sale was without consideration and in fact against the right of Ahmad Din to inherit the land after the death of Hussain Bakhsh vendor as his nearest reversioner. During the pendency of the case, Muhammad Khan, Ahmad Din and Hussain Bakhsh all died. They are now represented by their successors‑in‑interest. After prolonged litigation the petitioners succeeded in Supreme Court in their Civil Appeal No. 143 of 1977, decided on 2‑4‑1980. As a result thereof the suit against them stood dismissed. An attempt by the other party to seek review of the judgment of this Court failed on 22‑6‑1980. The petitioner further asserted in the petition that notwithstanding the finality of the decision by this Court, the other party tried to reagitate the same question before the learned civil Judge through a suit without disclosing facts of the earlier proceedings. This suit having been filed on 31‑5‑1980, that is, after the decision of the civil appeal by this Court on 2‑4‑1980, was dismissed by the learned trial Court on 14‑9‑1982. The plaintiffs therein challenged the dismissal of their suit through an appeal which was pending before the Additional District Judge, Sialkot, it is further stated in this peti tion, when it was filed on 3‑11‑1982. The petitioners grievance is that notwithstanding the finality of the judgment by this Court, the respondents' side has reagitated the question civil Court and that this act amounts to contempt of Court. It is mentioned in the petition itself that formal plea of res judicata having been raised the learned trial Judge in the second suit had upheld the plea and had dismissed the suit and it is on that context that the respondents' plea is pending in the Court of the learned Additional District Judge. If these facts are correct then it is a pure question of merits of the case in which the plea of res judicata has been raised. As to whether it would be attracted therein or not, the first Court having decided in favour of the petitioner, the appellate Court is now seized of the matter. There is another aspect of the matter. Respondents' representative has alleged that Ghulam Rasool has not disclosed the true fact in this Court. According to him initially two suits were filed from the respondents' side one was for declaration and the other was a suit in the alterntative for pre‑emption. He has further asserted that the second suit, namely, for pre‑emption remained pending throughout the period that the declaratory suit was tried and that it having been revived the proceedings are continuing therein. Ghulam Rasool has now admitted the revival of the pre‑emption suit but has in reply asserted that the suit was decreed in respondents' favour with a certain condition regarding deposit of the amount which not having been deposited, it (the pre‑emption suit) stood dismissed. But all this he bad admittedly withheld from this Court in so far as this petition is con cerned. He has made another. assertion that it was after the decision of the High Court in the declaratory suit when the respondents' party had succeeded (at that stage) that they obtained the possession in execution of the decree then passed in their favour (which was ultimately reversed by the Supreme Court). But at the same time he has asserted that the respondents' side had then taken the possession from the petitioner forcibly. When questioned as to why all these circumstances are not men tioned in the petition, Ghulam Rasool bad put the blame on' his lawyers including the one who drafted the petition, but it is not shown to have been drafted by a lawyer. In the above confused state of facts it would not be appropriate for this Court, in the peculiar circumstances of the case, to proceed against the respondents for contempt of Court. The petitioner it seems from the contents of paragraph 10 of the petition, is primarily interested in obtain ing the possession of the suit land in pursuance of the final decree. If that is so and if the respondents have already obtained possession of the same land, their remedy might be an application for restitution. This petition is misconcieved and is, accordingly dismissed. M. Z. M. Petition dismissed.