2022 PLP 608 (CLC)

AHMAD NADEEM ARSHAD, J.

Through the instant civil revision, the petitioner has called in question the judgments and decrees dated 21.01.2000 and 19.11.2004 of learned Courts below, whereby his suit for declaration was concurrently dismissed.

2. The facts in brevity are that the petitioner/plaintiff instituted a suit for declaration and permanent injunction on 06.06.1976, whereby he challenged the validity of order dated 10.04.1973 passed by Member Board of Revenue, Punjab, Lahore, in a review petition. The suit was hotly contested by the defendants. The learned trial court rejected the plaint vide judgment and decree dated 02.04.1981. Feeling aggrieved, the petitioner/plaintiff preferred an appeal which was dismissed by the learned appellate Court vide judgment and decree dated 01.11.1981, thereafter he filed a revision petition bearing No. 504 of 1981 which was allowed by this Court vide judgment/order dated 20.10.1999 and case was remanded to the learned trial court with a direction to decide the suit afresh on issues Nos.2 and 6-A after allowing the parties to lead evidence on the said issues. The learned trial court after recording of evidence again dismissed the suit vide judgment and decree dated 21.01.2000. The petitioner preferred an appeal against that judgment and decree which was dismissed by the learned appellate Court vide judgment and decree dated 19.11.2004. Hence, this civil revision.

3. The learned counsel appearing on behalf of the petitioner states that both the judgments and decrees of the learned lower courts are against facts and law and result of mis-reading and non-reading of evidence produced by the parties; that the learned lower courts dismissed the suit of the petitioner/plaintiff on the principle of res judicata which is not in accordance with law; that the writ petition was dismissed in limine without discussing the facts in controversy and without giving any findings on those facts; that the principle of res judicata was not attracted; that the learned lower courts wrongly concluded that the suit of the petitioner was barred in the light of principle of res judicata; that the learned lower courts failed to consider the facts that impugned order dated 10.04.1975 passed by Member Board of Revenue, is against facts and law and the Member Board of Revenue, Punjab, Lahore has no jurisdiction to review the order dated 03.07.1973 and the petitioner was entitled to get the allotment of the land under 15 Years Lease Scheme. He while relying upon "Hafiz Noor Muhammad and others v. Ghulam Rasool and others" (1999 SCMR 705), "Tahir Mehmood Durrani v. Shahid Hussain Kazmi and others" (PLD 1986 AJK 31), "Pakistan Steel Mills v. Muhammad Shafique" (1995 CLC 1000), "Muhammad Siddique v. District Magistrate" (1985 CLC 2885), "General Investment Ltd v. Karachi Municipal Corporation" (1993 MLD 1550) and "Mst. Kaneez Fatima v. MBR" (PLD 1973 Lahore 495) prayed for acceptance of this civil revision, setting-aside of the impugned judgments and decrees and decree of his suit.

4. Conversely, the learned law officer on behalf of Province of Punjab strongly opposed the contentions raised by learned counsel for the petitioner and while defending the impugned judgments and decrees argued that the learned lower courts rightly dismissed the suit of the petitioner/plaintiff on the principle of res judicata and prayed for dismissal of the revision petition.

5. I have heard the arguments advanced by the learned counsel for the parties and perused the record with their able assistance.

6. A very short and legal point is involved in this revision petition as the suit of the petitioner/plaintiff was dismissed on the principle of res judicata. As per contention of the petitioner, the suit property was allotted to him by drawing the lot on 24.05.1971 by the Assistant Commissioner, Sahiwal under 15 Years Lease Scheme. Respondent No.2 Muhammad Ramzan preferred an appeal against said allotment order before the Addl. Commissioner, Sahiwal which was dismissed vide order dated 20.04.1972. Being not satisfied, respondent No.2 filed a revision petition against the said order before the Board of Revenue, Punjab, Lahore which was also dismissed vide order dated 03.07.1973, thereafter, respondent No.2 filed a review petition before the Member Board of Revenue, Punjab which was accepted by him through his order dated 10.04.1975 on the ground that the petitioner did not fulfill the eligibility condition as the allotment was made to him on 22.03.1972 whereas the fifteen Years Lease Scheme ceased to operate on 31.05.1971. The petitioner challenged the order of review passed by Member Board of Revenue, Punjab, Lahore dated 10.04.1975 through Writ Petition No.772 of 1975 before this Court which was dismissed in limine vide order dated 21.11.1975. The order of this Court was not challenged further and the same had attained finality in the eyes of law. Thereafter, the petitioner challenged the order dated 10.04.1975 passed by the Member (Colonies) Board of Revenue Punjab, Lahore by instituting the instant suit for declaration which was concurrently dismissed on the principle of res judicata.

7. Undeniably the petitioner/plaintiff challenged the legality and validity of order dated 10.04.1975 through Writ Petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 and sought declaration that order of S. M. Nasim, Additional Chief Land Commissioner with power of Member (Colonies) Board of Revenue, Punjab Lahore dated 10.04.1975 is ultra vires, without lawful authority and void ab initio as the Member Board of Revenue without any fresh evidence or any error patent on the face of the record accepted the review petition. In this way the petitioner challenged the legality and validity of the order dated 10.04.1975. This court dismissed writ petition after recording the statement of Syed Altaf Hussain, Deputy Secretary (Colonies), Board of Revenue, Punjab, Lahore, who stated that he dealt with various cases of allotment made under various scheme and he after perusing the file submitted that scheme was promulgated on 24th April, 1971 which ceased to operate after 31st May, 1971 and it was not subsequently extended and this court while observing that Muzaffar Qadir Advocate of the petitioner could not make out any case for interference, dismissed the writ petition in limine. The order of this court was not assailed further and it attained finality. The order of this court dated 21.11.1975 was final and binding on sub-ordinate courts and the same cannot be re-agitated before the civil court. The contention of learned counsel for the petitioner that since the order, dismissing the writ petition was in limine so it could not operate, as res judicata, is misconceived. His contention that writ petition was not heard and finally decided on merits so order in limine would not operate as res judicata also carry no weight.

8. Admittedly this Court delivered its judgment dated 21.11.1975 in a writ petition and not in a suit and therefore, Section 11 of the C.P.C., did not, in terms, applies but general principles of res-judicata apply to the instant case. It is a rule of law that a man shall not be vexed twice by one and the same cause. For this rule, two reasons have always been assigned; the one, public policy and the other, hardship on the individual that he should be twice vexed for the same cause and when a party to litigation seeks improperly to raise again the identical question, which has been decided by a competent court. The Court has always-inherent power to prevent/check abuse of its process. Even if section 11 of C.P.C., may not, in terms, apply in support of the plea of res-judicata, the general principles of res-judicata are clearly attracted to debar a party from re-agitating 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 Courts have always power to prevent an abuse of their process which has been recognized to inhere in courts vested with the administration of justice and is expressly saved by section 151 of the Code of Civil Procedure by enacting: - "

151. Saving of inherent power of court.

Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court." The reason upon which the Courts claim to be entitled to dismiss such a suit is the prevention of the abuse of process was recognized in "Muhammad Akhtar and others v. Abdul Hadie and others" (1981 SCMR 878), where, in the first round of litigation, it was held that the petitioner before the Supreme Court was the transferee and owner of the property in dispute and the respondent was its tenant. After that round of litigation had ended with the order of the Supreme Court dated 16.12.1979, the tenant started the second round of litigation by filing a civil suit and it was held that: - "It is obvious that after the aforesaid adjudication by this Court, a fresh suit to re-agitate the same matter could not have been filed by the respondent which was nothing but a abuse of the process of law." Even if section 11 of C.P.C. do not apply in terms, in such like cases, the general principles of res judicata would apply whatever the forum whether the special or general jurisdiction it will operate as a bar on the re-opening of the case. The general principles of res-judicata are clearly attracted to debar a party from re-agitating the matter afresh by a civil suit, which had been put at rest by a judgment of the High Court passed in writ jurisdiction. In the case "Muhammad Chiragh-ud-Din Bhatti v. The Province of West Pakistan (Now Province of Punjab) through Collectors, Bahawalpur and 2 others" (1971 SCMR 447) the august Supreme Court of Pakistan held as under:- "Even if 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 re-agitating 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 by-passed overridden the orders of the High Court competently made in another jurisdiction on the same subject between the same parties." The Hon'ble Supreme Court of Pakistan in a case titled as "Sher Muhammad v. Province of Punjab through District Collector, Vehari and 2 others" (1998 SCMR 2636) observed as under:- "After a positive observation of the High Court about his entitlement to the grant of ownership rights, how could he re-agitate the matter in the Civil Court. The highest forum in the Revenue hierarchy i.e. Board of Revenue had for valid reasons excluded him from the contest which had been affirmed by the High Court, but still the petitioner had the audacity to challenge the order of the Board of Revenue in the Civil Court. The suit was clearly hit by the principle of res judicata and the Civil Court should not have re-opened the controversy because the eligibility and claim of the petitioner had been finally decided up to the highest level." Division Bench of this Court in a judgment "Muhammad Shafi and another v. Muhammad Bakhsh and another" (PLD 1971 Lahore 148) held as under:- "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 re-agitated 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 re-agitating the same matter before the Civil Court." The Hon'ble Supreme Court of Pakistan in a case titled as "Abdul Majid v. Abdul Ghafoor Khan" (PLD 1982 Supreme Court 146) it was held as follows:- "There is no force in any of the arguments raised by the learned counsel. He 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 general 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 Chiragh-ud-Din relied 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 any other general principle." It was further observed:- "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, this 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." This Court while dealing with similar type of situation in a case titled as "Mst. Rabia Bibi and others v. Fateh Muhammad through Legal Heirs" (1994 CLC 1151) held as under:- "The principle, on which a suit is held to be barred after a writ petition has been dismissed, is the general principle of res judicata. The reason on which the Courts claim to be entitled to dismiss such a suit is the prevention of the abuse of process of law. As was held in Muhammad Akhtar etc. v. Abdul Hadi etc. (1981 SCMR 878) after the adjudication of a matter in this Court's writ petition and by the Supreme Court, "a fresh suit to re-agitate the same matter could not have been filed by the respondent which was nothing but an abuse of the process of law." I had also had an occasion to consider this question in Syed Shahzad Hussain and 4 others v. Mst. Hajira Bibi and 3 others (PLD 1990 Lahore 222), and if I may venture to quote: "It is now well-established by authority that even if section 11 of the C.P.C. may not, in terms, apply in support of the plea of res judicata, the general principles of res judicata are clearly attracted to debar a party from re-agitating the matter afresh by a civil suit which had been set at rest by a judgment of the High Court passed in writ jurisdiction" and there would be something seriously wrong with our system of administration of justice, if we were to hold that there is no power in the Courts to prevent such an abuse of their process." The High Court of Sindh (Karachi) in a case titled "Mukhtar Ali Khan and 2 others v. Government of Pakistan through Secretary, Ministry of Rehabilitation and Works Islamabad" (1993 CLC 1239) held as under:- "So far as the first contention of the learned counsel is concerned, it may be pointed out that admittedly the entire matter in controversy between the parties was brought before this Court in the said Constitutional petition. The first contention raised therein on behalf of the applicants' predecessors that the order passed by the Settlement Authorities dated the 18th April, 1966 had been passed without notice to the heirs of Mst. Aisha Khatoon was replied by this Court on merits. No doubt, as pointed out earlier, in respect of the second contention it was observed that the question required an enquiry into the facts, nevertheless when the applicants' predecessors had made their choice, of filing a Constitutional petition before this Court, the matter attained finality subject to any review or appeal which might have been filed against the said judgment."

9. It is a matter of fact that the alleged allotment of land was of a bara lot measuring 18 acres of land under 15 years lease scheme. Undeniably that scheme was promulgated on 24th April, 1971 which cease to operate after 31st May, 1971 and it was not subsequently extended. The review was allowed and allotment was cancelled mainly on the ground that alleged allotment was made after ceaser of the scheme. Petitioner's contention is that the allotment was made to him on 24.05.1971, when the scheme was inoperative and to fortify his contention referred Exh.P-3, order of allotment issued by A.C.(S)/Collector dated 24.03.1971. The learned courts below did not rely upon this document on the ground that it did not bear the signature of any competent officer. In rebuttal the respondent produced copy of mutation No.249 which was sanctioned on 31.05.1972 and produced in evidence as Exh.D-5. From perusal of Exh.D-5 it appears that allotment was made to the petitioner on 22.03.1972 and concerned Patwari incorporated the Rapat No.430 on 06.04.1972 and mutation was sanctioned on 31.05.1972 and evidenced that allotment was made after ceaser of the scheme. The learned courts below keeping in view the evidence available on the record rightly decided issue No.6-A against the petitioner.

10. I have minutely gone through the record available on the file as well as the impugned judgments and decrees passed by the learned lower Court. I have seen no any illegality, irregularity and mis-reading or non-reading of evidence on the part of learned lower Courts while passing the impugned judgments and decrees. The findings of learned lower Courts on question of facts and law, having based upon proper appreciation of oral as well as documentary evidence.

11. Learned counsel for the petitioner has been unable to point out any piece of misreading and non-reading of evidence qua the concurrent findings of the learned Courts below. The case laws referred to by the learned counsel for the petitioner are not relevant to the facts and circumstances of the case and are not helpful to his case.

12. Epitome of above discussion is that the instant petition is devoid of any merits, hence, dismissed with no order as to costs. ZH/A-113/L Revision dismisse