1996 PLP 218 (SCMR)

(i) Whether the petitioners were not parties to the appeal filed before the Service Tribunal by one Mubarik Ali against the Government of N: W.F.P. in similar matter and were also not arrayed as parties in the A Petition for Leave to Appeal No. 225‑P/Ol before this Court and thus were not bound by the judgments delivered therein. (ii) Whether the judgments referred to above were judgments in rem or judgments in personam and whether material facts bearing on the point in issue were not brought to the notice of the Court. (iii) Whether two separate cadres were maintained, one main cadre and the other sub‑cadre, of the Central Design Office, with different nomenclature and the incumbent thereof not transferable inter se and having separate seniority list and its effect"

3. In support of the above appeals Mr. K.MA. Samdani, learned A.S.C. for the appellants, has vehemently contended that the Tribunal had non‑suited the appellants on the wrong assumption that the judgment rendered by it earlier in the appeal filed by aforesaid Mubarik Ali and upheld by this Court was a judgment in rem and not a judgment in personam and, therefore, is binding against the world. To reinforce the above submission he has invited our attention to Article 55 of the Qanoon‑e‑Shahadat Order, hereinafter referred to as the Order, and pointed out that a final Judgment, order or decree of a competent Court in the exercise of four types of jurisdiction, namely, probate, matrimonial, admirality and insolvency are conclusive proof as to the legal character referred to therein and that as the jurisdiction of the Service Tribunal is not covered by any of the above four heads, the judgment rendered by the Service Tribunal cannot be treated as judgment in rem. He has referred to the case of Miss E. Scott v. M/s Residence Ltd. (AIR 1956 Calcutta 606) and the case of Secretary of State v. Syed Ahmad Badsha Sahib Bahadur (AIR 1921 Madras 248), which are on the interpretation of section 41 of the Evidence Act, 1872, which corresponded to Article 55 of the Order. On the other hand Mr. Saifur Rehman Kiyani, learned Advocate General N: W.F.P. and Mr. Muhammad Nawaz Abbasi, learned A.S.C. for respondents Nos 1 to 4 have vehemently urged that since the earlier judgment of the Tribunal was as to the interpretation of the Rules and as the NfW.F.P. Government was a party to the aforesaid earlier proceedings initiated by Mubarik Ali, the same was judgment in rem. According to them it was not necessary to implead the appellants or any other employee of the department in the above earlier proceedings. It was also urged by them that under Article 189 of the Constitution of the Islamic Republic of Pakistan, 1973, hereinafter referred to as the Constitution, any. decision of the Supreme Court shall to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on all other Courts in Pakistan and, therefore, the Tribunal was bound to follow its earlier judgment in the appeal filed by Mubarik Ali, which judgment stood merged in the order of the Supreme Court refusing leave.

4. At this stage we may refer to Articles 55 and 56 of the Order, which read as under:‑‑ "

55. Relevancy of certain judgments in probate, etc.. jurisdiction.‑‑A final judgment, order or decree of a competent Court in the exercise of probate matrimonial, admiralty or insolvency jurisdiction, which confers upon or takes away from any person any legal character, or which declares any person to be entitled to any such character, or to be entitled to any specific thing,. not as against any specified person but absolutely, is relevant when the existence of any such legal character, or the title of any such person to any such thing, is relevant. Such judgment, order or decree is conclusive proof‑‑ that any legal character which it confers accrued, at the time when such judgment, order or., decree came into operation; that any legal character, to which it declares any such person to be entitled, accrued to that person at the time when such judgment, order or decree declares it to have accrued to that person; that any legal character which it takes away from any such person ceased at the time which such judgment, order or decree declared that it had ceased or should cease; and that anything to which it declares any person to be so entitled was the property of that person at the time 4bm‑which such judgment, order or decree declares that it had been or should be his property.

56. Relevancy and effect of judgment orders or decrees other than those mentioned in Article 55.‑‑Judgments, orders or decrees other than those mentioned in Article 55 are relevant if they relate to matters of a public nature relevancy the enquiry; but such judgments, orders or decrees are not conclusive proof of that which they state." A perusal of above Articles indicates that a final judgment, order or decree of a competent Court passed in the exercise of‑ (i) . Probate; or (ii) matrimonial; or . (iii) admirality; or (iv) Insolvency jurisdiction; which confers upon or takes away from any person any legal character or which declares any person to be entitled to any such character or to be entitled to any specific thing not as against any specified person but absolutely is relevant to the extent of such legal character or the title of any such person to any such thing is relevant it may further be observed that it also provides that the judgment, order or decree referred to in para. 1 thereof is conclusive proof in the matters, provided in the subsequent portion of the aforesaid Article reproduced hereinabove. It may also be pointed out that under Article 56 it has been laid down that judgments, orders or decrees other than those mentioned in Article 55 are relevant if they relate to matters of a public nature relevant to the enquiry but such judgments, orders or decrees are not conclusive proof of that which they ' 8 state. In other words, if a final judgment, order or decree is passed by a competent Court in the exercise of four categories of jurisdiction mentioned in para. 1 of Article 55 and if it relates to the matters as to the character referred to therein in the subsequent portions of the above Article, it is conclusive 'proof but any other final judgment, order or decree which is passed by a competent Court in exercise of jurisdiction other than the above four types of jurisdiction, namely, probate, matrimonial, admiralty or, insolvency, the same will be relevant but will not be conclusive "'proof .of that which it states in view of Article 56 of the Order.

5. We may now refer to the above two reports referred to by Mr. K.M.A. Samdani. In the case of Miss E. Scott (Supra), a Division Bench of the Calcutta High Court, while construing sections 14(4), 2($), Schedule A, rule 4 of the West Bengal Premises Rent Control Act, held that the standard rent determined in case of a sub‑tenant not a judgment in rein as to bind the other tenants. The relevant observations read as follows:‑ "The judgment of the Rent Controller fixing rent for any particular tenancy does not fall within the class set out in section 41, Evidence Act. It is dangerous for Courts to extend the definition of `judgments en rein' to any judgment which do not fall within the well‑recognised class or judgments in rein, or which the legislature, in express words or by necessary implication, makes binding against all the world. I can find no .provision in the West Bengal Rent Control Act which even remotely, suggests any intention of the Legislature that judgments fixing a standard rent on the application of any particular individual should be binding against `all the world'. The provision in section 30 of the Act that before exercising any other powers of the Act, the Rent Controller shall cause a copy of a notice of his intention to do so to be affixed in a conspicuous place at his office and, shall duly consider any application from any person having interest in the premises does not, in my opinion, indicate any such intention." Whereas in the case of Secretary of State v. Syed Ahmad Badsha Sahib Bahadur (supra), a Full Bench of the Madras High Court, while examining sections 41 and 42 of the Evidence Act, pointed out that the above sections draw a distinction between judgments in rein and judgments in personam and a judgment which does not ,fall within section 41 can only be evidenced but cannot be used for the purpose of preventing the other party from proving facts which he set up. It has been further held in the above report that "It is not open to the Courts to import considerations as to convenience in dealing with matters which have been codified and dealt with by Evidence Act however, attractive the theory may be and however much one would like to have the principle embodied by the legislature in the codes".

6. Mr. K.MA. Samdani has also referred to the definitions of the terms "judgment in personam" and "judgment in rein" given in Black's Law Dictionary, Sixth Edition, which read as follows:‑‑ "Judgment in personam or inter partes. A judgment against a particular person, as distinguished from a judgment against a thing or a right or status. See also Judgment (Personal judgment). `Judgment in rein. An adjudication pronounced upon the status of some particular thing or subject‑matter, by a tribunal having competent Authority. Booth v. Copley, 283 Ky. 23, 140 S.W.Ed 662,

666. It is founded on the proceedings instituted against or on some thing or subject‑matter whose status or condition is to be determined. Eureka Building & Loan Ass'n v. Shultz, 139 Kan. 435, 32 P.2d 477. 480; or one brought to enforce a right in the thing itself, Federal Land Bank of Omaha v. Jefferson, 229 Iowa 1054; 295 N.W. 855,

857. It operates directly upon the property. Guild v. Wallis, 1M Or. 69, 40 P. 2d 737,

742. It is a solemn declaration of the status of some person or thing. Jones v. Teat, Tex Civ. App., 57S. W.2d 617,

620. It is binding upon all persons in so far as their interests in the property are concerned. See also Judgment quasi in rein'."

7. It will not be out of context to refer to a judgment of this Court in the case of Pir Bakhsh Represented by his Legal Heirs and others v. The Chairman, Allotment Committee and others (PLD 1987 SC 145), pointed out by Mr. S. Inayat Hussain, learned A.O.R. for respondent No.4, and which has direct bearing on the controversy. In the above case Muhammad Haleem, CJ. has very ‑ elaborately dilated upon the principle of stare decisis, principle of ratio decidendi and the distinction between a judgment in personam and a judgment in rein. It will be instructive to reproduce the relevant extracts from the above report, which read as under:‑‑ "Upon a consideration of what has been stated above, the formulation on behalf of the appellants cannot be accepted as it stands. In a controversy raising a dispute inter partes, the thing adjudged is conclusive as between the parties both on questions of act and law, but as to what the Court decides generally is the ratio decidendi or rule of law for which it is the authority. It is this ratio decidendi which is applicable to subsequent cases presenting the same problem between third parties not involved in the original case nor will either of the original parties be bound in a subsequent‑dispute with a third party. It will be misnomer to say that this rule of law acts in rein, that is, as against the whole word as conceptually. the applicability of the rule of law is either founded on the doctrine of precedent as under the English law or rule of stare decisis, and none of the doctrines in its application is inflexible for what has been recalled elsewhere in the judgment. Therefore, the judgment cannot act in rein as is sought to be argued." .."The High Court in dislodging the appellants held that the, judgment of the Supreme Court was not a judgment in rein, but in personam. The terms `in rein' and `in personam' are of Roman Law used in connection with actio, that is, actio in rein and actio in personam to denote the nature of actions, and with the disappearance of the Roman forms of procedure, each of the two terms `in rein' and `in personam' got tagged with the word judgments to denote `the end products of actions in rein and actions in personam. Thus, according to the civil law an action in which a claim of ownership was made against all other persons was as action in rein and the, judgment pronounced in such action was a judgment in rein and binding upon all persons whom the Court was competent to bind, but if the claim was made against a particular person or persons, it was an action in personam and the decree was a decree in personam and binding only upon the particular person or persons against whom the claim was preferred or persons who were privies to them. Monir in his `Principles and Digest of the Law of Evidence' at page 563, gives the import of these terms as under:‑‑ `The point adjudicated upon in a judgment in rein is always as to the status of the res and is conclusive against the world as to that status, whereas in a judgment in personam the point, whatever it may be, which is adjudicated upon, it not being as to the status of the res, is conclusive only between parties or privies. A decision in rein not merely declares the status of the person or thing, but ipso facto renders it such as it is declared; thus, a decree of divorce not only annuls the marriage, but renders the, wrife feme sole: adjudication in bankruptcy not only declares; but constitutes the debtor a bankrupt; a sentence in a prize Court not merely declares the vessel prize, but vests it in the captor.' ` Section 41 of the Evidence Act does not use the term `judgment in rein', but it incorporates the law on the subject of judgments in rein, and makes them relevant not only against strangers but also conclusive of certain matters such as whether a person was entitled to a legal j character or to any specific thing not as against any specified person but absolutely. Judgments in rein are an exception to the rule of law that no man should be bound by the decision of a Court of Justice unless he or those under whom he claims were parties to the proceedings in which it was given. This rule of law is referable to the maxims of Roman Law namely, 'Res inter also. judicata nufun inter alias prejudicium facit', or 'Res inter alias acta alteri nocere non debet'. Such exception of the judgment in rein in the Roman Law was the foundation of the exception in English Law. Section 41 of the Evidence Act is the foundation for the exception of judgment in rein in our corpus juris. The reason why a judgment should not be used to the prejudice of a stranger is that he is denied the fundamental right to make a defence, or to examine or cross‑examine witnesses or to appeal from a judgment which aggrieves him. This is the requirement of most manifest justice and good sense."

8. It may be observed that Black's. Law Dictionary gives simple definition of the above two items by providing that `judgment in personam or inter partes' is a judgment against a particular person as distinguished from a judgment against a thing or a right or status, whereas the term `judgment in rein' has been defined as an adjudication pronounced upon the status of some particular things or subject‑matter by a Tribunal having competent Authority. Such a judgment is binding upon all persons in so far as their interests in the property are concerned.

9. It may further be observed that in the first extract from the above judgment in the case of Pir Bakhsh (Supra), Muhammad Haleem, CJ. Has succinctly pointed out that in a controversy raising a dispute inter partes the things adjudged is conclusive as between the parties both on questions of facts and law and the reasoning on the question, of law is the ratio decidendi or rule of law. It has been further pointed out that it will be misnomer to say that ,the above rule of law acts in rein i.e. as against the whole world. A perusal of the second extract from the aforesaid judgment indicate that the concept of judgment in personam and judgment in rein was originated under the Roman Law in connection with actio i.e. actio in rein and actio in personam to denote the nature of actions and that the disappearance of E Roman forms of procedure, each of the two terms "in rein" and "in personam" got tagged with the judgments to denote the end products of actions in rein and actions in personam. Whereas Monir in his book "Principles and Digest of the Law of Evidence" has distinguished the above two types of judgments by sting that the point adjudicated upon in a judgment "in rein" is always as to E the status of the res and is conclusive against the world as to the status, whereas in a judgment "in personam" the point whatsoever it may be which is adjudicated upon, it not being, as to the status of the res is conclusive only between the parties or privies. It is also evident from, the above passage that section 41 of the Evidence Act (now Article 55 of the Order though incorporates the principles of a judgment in rein but does not use the above term "judgment in rein". The judgments in rein are exception to the rule of law that no man should be bound by the decision of a Court unless he or those under whom he claims were parties to the proceedings in which it was given.

10. It seems that Article 55 of the Order restricts the application of the principle of judgment in rein to the judgments, orders or decrees rendered in the exercise of jurisdiction pertaining to four types of jurisdictions, namely, probate, matrimonial, admiralty and insolvency, in respect of the legal character of the matters referred to therein, whereas the definition of the above term given in Black's Law Dictionary and the above commentary by Monir in his above book have not restricted the application of the above principles of judgments in rein to the judgments, orders or decrees rendered in the exercise of above four types of jurisdiction referred to in Article 55 of the Order. We are inclined to hold that in the absence of any well‑established principle of Jurisprudence, we cannot enlarge the scope of above Article 55 of the Order as to include a final judgment, order or decree passed by a Court or Tribunal in the exercise of any other jurisdiction than any of the four types of jurisdiction referred to in the above Article: We are of the view that the judgment rendered by the Tribunal in the appeal filed by Mubarik Ali and which was upheld by this Court by refusing leave to appeal is not a judgment of the nature covered by the above four types of jurisdictions referred to in Article 55 of the Order but it falls in the categories of judgments referred to in Article 56 of the Order. In other words, it is relevant for the controversy in issue but is not conclusive proof against the appellants as to what it states.

11. We are not impressed by the arguments of the learned Advocate- General N.‑W.F.P. and Mr. Muhammad Nawaz Abbasi that since the earlier judgment of the Tribunal was as to the interpretation of the Rules and as the N.‑W.F.P. Government was a party to the aforesaid earlier proceedings initiated by Mubarik Ali, the same was judgment in rein. N.‑W. F. P. Government though was a party to the earlier appeal filed by said Mubarik Ali but it cannot be urged that it represented the interest of the appellants, nor Article 189 of the Constitution has any relevance to the controversy in issue, namely, whether the earlier judgment rendered by the Tribunal and upheld by this Court constituted a judgment in rein or a judgment in personam. There is no doubt that the law declared by this Court is binding on all the Courts in Pakistan but simplicitor this fact will not attract the application of the principle of judgment in rem. It was open to the Tribunal in the present case to have 1 taken the same view which it had taken earlier if no distinction could have been pointed out by the appellants, but the appellants could not have been non‑suited on the ground that the earlier judgment constituted judgment in rem as to bind the appellants to whom the cause of action accrued after the circulation of above seniority list on 29‑11‑1992.

12. We have not touched upon question No.3 on which leave was granted as we intend to remand the case to the Tribunal.

13. The upshot of the above discussion is that the above appeals are allowed, the cases are remanded to the Tribunal with the direction to hear the same in the light of observations contained hereinabove. However, there will be no order as to costs. M.B.A./M‑3167/S Appeals allowed.