IFTIKHAR MUHAMMAD CHAUDHRY, J.----The petitioners by invoking the jurisdiction of this Court under Article 188 of the Constitution of Islamic Republic of Pakistan, 1973, read with Order XXVI of the Supreme Court Rules, 1980 (hereinafter referred to as "the Rules, 1980") have prayed for review of the judgment dated 11th February, 2005 passed in different appeals jointly, details whereof are as under:--
1. CRP.27/2005 in CA.220/1999M/s Gadoon Textile Mills Ltd:
2. CRP.28/2005 in CA 221/1999M/s Saif Textile Mills Ltd.
3. CRP.29/2005 in CA 222/1999M/s Royal Textile Mills Ltd.
4. CRP.30/2005 in CA 223/1999M/s A.J. Textile, Mills Ltd.
5. CRP.31/2005 in CA 224/1999M/s S.L. Hayat Industries Ltd.
6. CRP.32/2005 in CA 225/1999M/s Hattar Textile Mills (Pvt.)
Ltd.
7. CRP.33/2005 in CA 1443/1999M/s Friends Glass Pvt. Ltd.
8. CRP.34/2005 in CA 2981/2003M/s Gandaf Steel Industries Ltd
9. CRP-35/2005 in CA 228/1999 M/s Muhammad Ali Industries Ltd.
10. CRP.36/2005 in CA 229/1999 M/s Latif Shakir Textile Mills Ltd.
The above judgment, however, has not been challenged by filing review petitions in Appeals Nos.219, 226, 227, 231 and 232 of 1999.
2. Precise facts already noted in the judgment under review reads thus:-- "2. Precisely stating the facts of the case are that vide Notification No,2125-GKD/Tarrif/T-73 dated 3rd June, 1987 issued by Secretary WAPDA Lahore, concession of 50% rebate on electricity tariff was allowed to Industrialists who had established their respective Industries in Gadoon Amazai Industrial Estate (hereinafter referred to as "GAIE"). However, period of 50% rebate was not specified in the Notification. In the year 1992, WAPDA imposed surcharge and additional surcharge on the monthly bills of the Industrialists of "GAIE". The imposition of surcharge and additional surcharge was challenged by the Industrialists and the appellants/petitioner by filing Constitution Petitions before the Peshawar High Court. During pendency of the Writ Petitions before the High Court, the Economic Coordination Committee (hereinafter referred to as "ECC") of the Cabinet vide its decision contained in summary dated 24th August, 1994, fixed the period of 50% rebate in the electricity tariff through letter dated 23rd February, 1995 for an additional period of five years, to be available up to 28th August, 1999, excluding the Industries mentioned in the negative list.
Subsequently, WAPDA changed the time limit prescribed for 50% rebate up to 2nd June, 1997 from 28th August, 1999. Constitution Petitions, challenging the surcharge and additional surcharge, were dismissed by the Peshawar High Court on 2nd October, 1995 and this Court upheld the said order vide judgment dated 30th July, 1996 (Gadoon Textile Mills v. WAPDA (1997 SCM R 641). Later on, appellants/petition and few other Industrialists invoked the Constitutional jurisdiction of the Peshawar High Court to challenge the memorandum dated 8th March, 1995 whereby the period prescribed for 50% rebate in the previous notification dated 23rdFebruary, 1995 was reduced to 2nd June, 1995, on the plea that their contention before this Court was not entertained on the ground that it was not agitated before the High Court. The respondent-WAPDA contested the petitions, inter alia, on the ground that the matter has been finally decided by this Court, as such it cannot be reopened."
3. The appeals and petition filed by the petitioners, details of which have been mentioned hereinabove, were dismissed on 11th February, 2005. Relevant para. Therefrom reads thus:- "Since this question has already been dealt with in the earlier judgment, therefore, we are of the considered opinion that the issue under discussion, between the parties, has been decided in the previous round of litigation, therefore, in view of the provisions of Explanation IV to section 11 of C.P.C., it can be held that the same issue between the parties was finally heard and decided, thus the present proceedings, being barred by the principle of constructive res judicata, are not open for further discussion. Consequently, we are not persuaded to deviate from the view already expressed in the earlier judgment in the case of Gadoon Textile Mills (ibid) (1997 SCM R 641), as enunciated by this Court in Ardeshir Cowasjee v. Karachi Building Control Authority (1999 SCM R 2883). Besides it, since this question was not only available to appellants but actually argued by the learned counsel for the appellants/petitioner at that time, notwithstanding the fact as to whether it was raised or otherwise before the High Court, therefore, it would be found that since the question was also available to them, which they virtually raised, and now in view of the provisions of Explanation IV to section 11, C.P.C., it can be held that instant proceedings are barred by the principle of res judicata. Reliance in this behalf may be placed on Amanul Mulk v. Ghafoor ur Rehman (1997 SCM R 1796). Relevant para. Therefrom reads as under thus:- "6. We have not been impressed by this submission of the learned counsel. The learned Judge in the High Court has held that the suit, out of which, this petition has arisen, was hit by the principle of constructive res judicata. This doctrine is embodied in Explanation IV to section 11, C.P.0 and is an essential constituent of doctrine of res judicata. It is because of principle of res judicata that the doctrine of res judicata is rendered fully effective. The aim of the doctrine is to compel both the parties to the suit to raise before the Court in support of their contentions all the grounds of attack and defence available to them. By force of this doctrine, the parties have to bring their whole case to the Court and cannot reserve for the purpose of a second suit grounds available to them in support of their case. The rationale behind the constructive res judicata is that if the parties have had an opportunity of asserting a ground in support of their claim or defence in a former suit and have not done so, they shall be deemed to have raised such grounds in the former suit and it shall be further deemed that these grounds had been heard and decided as if these matters had been actually in issue. As such, such parties shall be precluded from raising these grounds in a subsequent suit. Such matters will by virtue of this legal fiction be construed to be res judicata Against the above conclusion, instant review petitions have been filed.
4. Mr. Wasim Sajjad learned Sr. Advocate Supreme Court in support of Review Petitions Nos.32 to 34 of 2005 contended:----
(1) That in Writ Petitions filed by the industrialists in the year 1992, the imposition of surcharge and additional surcharge on the monthly bills of the industrialists of the "Gadoon Amazai Industrial Estate (hereinafter referred to as "GAIE") was challenged which culminated in judgment in the case of Gadoon Textile Mills v. WAPDA (1997 SCM R 641) whereas subject-matter of curtailing 50% rebate in the electricity tariff vide letter dated 23rd February, 1995 for an additional period of five years i,e, up to 28th August, 1999, excluding the Industries mentioned in- the negative list and subsequent change in time limit from 28th August, 1999 to 2nd June, 1997 by the WAPDA, was never challenged by the petitioners either originally or by making amendment in the Writ Petitions which were decided by the Peshawar High Court on 2nd October, 1995, nor amendments were sought in appeals/petition pending before this Court from 1996, in view of the judgment in the case of Hafiz Noor Muhammad and others v. Ghulam Rausl and others (1999 SCM R 705).
(2) That vide order dated 24th March, 1999, leave was granted to examine withdrawal of 50% rebate in electricity tariff from the industries mentioned in the negative list with immediate effect and recovery of surcharge and additional surcharge, whereas question of curtailment of 50% rebate was neither raised nor leave was granted in Gadoon Textile Mills's case (ibid) to examine this question, vide order dated 27th January, 1996. Thus, this Court was not supposed to dispose of this question, as such conclusion in the judgment under review that the appeals/petition are barred by the principle of res judicata is not sustainable in law.
(3) That in Gadoon Textile Mills's case (ibid) learned counsel appearing on behalf of industries other than the industries mentioned in the negative list; had not argued the case of curtailing the period of 50% rebate on electricity tariff nor cited judgments in this behalf as it is evident from perusal of the judgment and statement/argument, being attributed to Mr. Abdul Hafeez Pirzada, learned Sr. Advocate Supreme Court that he argued this question, is not correct because he was holding brief on behalf of the industrialists in the negative list. Contrary to it, Mr. Fakhr-ud-Din G.
Ibrahim learned Sr. Advocate Supreme Court for WAPDA made certain observations in this behalf but no opportunity was given to petitioners even to rebut his stand, therefore, for this reason the appeals/petition cannot be declared barred by res judicata.
(4) In the majority judgment no final verdict has been given in this behalf, therefore, the minority view expressed in the judgment by Mr. Justice Saleem Akhtar (as then he was), at the best, could be treated as obitar dicta.
5. Mr. Abdul Hafeez Pirzada, learned Sr. Advocate Supreme Court contended:
(a) That the Court has proceeded on the assumption that withdrawal of 50% concession would suppose to curtailment of the period from 28th August, 1999 to 26th June, 1997, whereas withdrawal does not infer to curtailment of the period of rebate on monthly bills of the industries mentioned in the negative list as in this category of the industries, withdrawal was made with immediate effect and he being the counsel for industries in negative list, had not uttered a single word in respect of the cases of the industries, falling under the other category (positive list), nor it is indicative from the judgment in Gadoon Textile Mills's case (ibid), therefore, such error, being apparent on the face of record, is required to be rectified by reviewing the judgment.
(b) That the Court had not finally decided/determined the question of making time bound concession without notice in respect of industries, other than in negative list, therefore, appeals/petition were not barred by principle of res judicata. In support of his contention he relied upon the judgments reported as Abdul Ghafoor v. Chief Settlement Commissioner (1985 SCM R 464), Adalat Khan v. Mst. Begum Bibi (1991 SCM R 1381), Muhammad Sharif v. Inayat Ullah (1996 SCM R 145), Hafiz Noor Muhammad and others v. Ghulam Rasul and others (1999 SCM R 705), Khushi Muhammad v. Province of Punjab (1999 SCM R 1633), Province of Punjab v. Malik Ibrahim and Sons (2000 SCM R 1172).
(c). That the Code of Civil Procedure is not applicable on proceedings before this Court as per Order I, Rule 5 of the Rules 1980 read with law laid down in Dost Muhammad Khan v. Mst Bibi Rukia (PLD 1986 SC 353), therefore, the Court may have not terminated the proceedings in view of the proxisions of Explanation IV to section 11 C.P.C.
(d) To substantiate the plea that if an error in the judgment is apparent on the face of record, it can be rectified in exercise of jurisdiction under Article 188 of the Constitution of Islamic Republic of Pakistan, he relied upon the judgments in the case of Fecto Belarus Tractors Ltd., v. Pakistan (2001 PTD 1829) and Managing Director, SSGC Ltd., v. Ghulam Abbas (PLD 2003 SC 724).
(e) That the judgments cited at the time of hearing of appeals/petition i,e, Collector of Central Excise and Land Customs v. Aziz-ud-Din Industries Ltd., (PLD 1970 SC 439), M.Y. Electronics (Pvt) Ltd., v. Government of Pakistan (1998 SCM R 1404) and Friends Textile Mills v. Government of Pakistan (2004 SCM R 346), have not been discussed, due to which the judgment of the Peshawar High Court to the effect that time bound concession can be unilaterally curtailed without notices, have become final against the principle laid down in the reported judgments, therefore, such error ought to be rectified otherwise interest of justice will suffer.
6. Mr. Abdul Latif Yousafzai, Advocate Supreme Court contended: -
(i) That the subject-matter before this Court in Gadoon Textile Mills's case (ibid) was in respect of surcharge and additional surcharge imposed upon the industries in GAIE on monthly consumers bills, therefore, Court had not decided the question of curtailment of time bound concession at all, thus holding conversely in the judgment under review, has given rise to an error in it, warranting its rectification in exercise of review powers conferred upon this Court under Article 188 of the Constitution of Islamic Republic of Pakistan.
(ii) That in the earlier round of litigation, culminated into judgment in Gadoon Textile Mills's case (ibid), the Court was seized with two issues; first with regard to surcharge and additional surcharge on the monthly bills and; second with regard to 50% rebate in electricity tariff in respect of industries in the negative list in GAIE, but so far as curtailment of time bound concession of five years up to 28th August, 1999, which was subsequently reduced to 2nd June, 1997, is concerned, it was never the subject matter and he being an advocate for some of the appellants adopted the arguments of Mr. Abdul Hafeez Pirzada, Sr. Advocate Supreme Court, who was holding brief for the industrialists in the negative list, therefore, the conclusion of the Court vide judgment under review, that the appeals/petition are barred by res judicata, suffers from error, which may be rectified in the interest of justice.
7. Mr. Muhammad Asif, Advocate Supreme Court adopted the arguments of Mr. Abdul Hafeez Pirzada and Mr. Wasim Sajjad, learned Senior Advocate Supreme Court.
8. We have heard the petitioners counsel and have also gone through the judgment under review.
At the very outset, we consider it A appropriate to observe that C.P.0 is not applicable on the proceedings before this Court as per Order I, Rule 5 of the rules, 1980, as the same are regulated by its rules itself, as held in the case of Dost Muhammad .Khan (ibid). Thus, in pursuance of inherent powers available to this Court under Order XXXIII of the Rules 1980, the Court, to do complete B justice, is not debarred to follow the principles of res judicata to ensure certainty, stability and finality to its decisions. There is no gain in saying that the principle of res judicata is based on public policy and necessity, to ensure an end to a litigation as it has been noted in the case of Wasi Ahmed Rizvi v. Federation of Pakistan (PLD 1982 SC 20). To have the benefit of the observation, relevant para. Therefrom reads thus:--
15. Taking up the principle of res judicata first, we find that it has been given a statutory form in section 11 of the Civil Procedure Code. One is therefore justified in concluding, by way of first impression, that it is more a matter of procedure of Court then anything else. In the case of Sheoparasan Singh and others v. Ramnandan Prasad Narayan Singh and others (i) Sir Lawrence Jenkiins, while delivering the judgment of the Board observed: "Their Lordship desire to emphasize that the rule of res judicata, while founded on ancient precedent is dictated by a wisdom which is for all time. "It hath (has) been well said." "declared Lord Coke, interest republicae ut sit finis litium---otherwise great oppression might be done under colour and pretence of law" (6 Coke-9a)
16. In the case of Kalipade de and others v. Dwijapada Das and others (2), it was held that the terms of section 11 are not exhaustive.
17. Res judicata, it is observed in Corpus Juris Secundum is a rule of universal law pervading every well-regulated system of jurisprudence, and is put upon two grounds, embodied in various maxims of the common law; the one of public policy and necessity, which makes it in the interest of the State that there should be an end to litigation interest republicae ut sit finis litium: the other, the hardship on the individual that he should be vexed twice for the same cause:
18. Res judicata is a part and a form of estoppel----estoppel by matter of record or quasi of record: "Estoppel of record or quasi of record, also known as estoppel per rem judicatam, arises (1) were an issue of fact has been judicially determined in a final manner between the parties by a Tribunal having jurisdiction, concurrent or exclusive, in the matter and the same issue comes directly in question in subsequent proceedings between the same parties (this is sometimes known as cause of action estoppel): (2) where the first determination was by a Court having exclusive jurisdiction, and the same issue comes incidentally in question in subsequent proceedings between the same parties this is sometimes known as issue estoppel; (2) in some cases where an issue of fact affecting the status of a person or thing has been necessarily determined in a final manner as a substantive part of a judgment in rem of a Tribunal having jurisdiction to determine that status, and the same issue comes directly in question in subsequent civil or criminal proceedings between the parties whatever.
Where the earlier decision is that of a Court of record the resulting estoppel is said to be 'of record': where it is that of any other Tribunal, where constituted by agreement of the parties or otherwise, the estoppel is said to be 'quasi of record'. The fact that the estoppel of record or quasi of record arising" (HaIs., 4th Edn., Vol.16, para. 1503."
Later on, this very question came up for consideration before this Court in the case of Mubarik Ali v.
Fazal Muhammad (PLD 1995 SC 564), concerning maintainability of an application under section 12(2), C.P.0 and it was held as under:- " It is a different matter whether this Court would take up petitions filed under section 12(2), C.P.0 for disposal considering that under Rule 5 of Order I of the Supreme Court Rules, 1980, the Code of Civil Procedure does not apply to any proceedings in the Supreme Court, unless expressly provided by the Rules. Whether it would act in review under Order XXVI of the Rules or under Rule 6 of Order XXXIII under its inherent powers to secure the ends of justice, or on the basis of observations contained in Abdul Majid's case PLD 1982 SC 146 that a party who desires to show that a decision was obtained by fraud, need not to do so by separate suit, but may do so by moving the same Court, would depend upon each case separately..
9. In addition to above observation, reference may also be made to Corpus Juris Secundum Vol. 34 wherein it is observed that "it is a rule of universal law providing every well regulated system of jurisprudence and is put upon two grounds embodied in various maxims of common law. The one of public policy and necessity which makes it to the interest of the State that there should be an end of litigation and the other hardship on the individual that he should be vexed twice for the same cause". Thus it is held that this Court being the Court of ultimate jurisdiction is equally responsible to ensure certainty, stability and finality of its decisions and in the larger interest of public, it can invoke any acceptable principles for the advancement of the object, instead of expressing its inability not to exercise its jurisdiction merely for technical reasons.'
10.. Learned counsel for petitioners have sought review of the judgment mainly on the ground that in the case of Gadoon Textile Mills's case (ibid), the question of curtailing the period of 50% in the electricity tariff for five years i,e, 28th August, 1999, which was reduced later on to 2nd June, 1997, was never the subject-matter of the proceedings, nor they have argued this point before the Court, therefore, the appeals/petition filed by them were not barred by res judicata. In this behalf it may be noted that to attract the provisions of section 11, C.P.C. Or the application of principle of res judicata or otherwise, certain standards have been laid down in the judgments, which have been relied upon by Mr. Abdul Hafeez Pirzada, learned Sr. Advocate Supreme Court for the petitioners. In one of the same, i,e, Province of Punjab v. Ibrahim and Sons (2000 SCM R 1172) the following five conditions to attract the principles of res judicata have laid down:---
(1) The matter directly and substantially in issue in the subsequent suit or issue must be the some matter which was directly and substantially in issue either actually or constructively in the former suit.
(2) The former suit must have been a suit between the same parties or between parties under whom they or anyone of them claim.
(3) The parties as aforesaid must have litigated under the same title in the former suit.
(4) The Court which decided the former suit must have been a Court competent to try the subsequent suit in which such, issue is subsequently raised.
(5) The matter directly and substantially in issue in the subsequent suit Must have been heard and finally decided by the Court in the first suit."
It is important to note that during the arguments, at the time of hearing of appeals/petition, which resulted in passing of the judgment under review, learned counsel for petitioners opposed the arguments of learned Attorney-General and the arguments so raised by them were as follows:--- "6. Learned counsel appearing for the appellants, however, contended that the doctrine of res judicata was never a question of law for decision but its application depends upon pleadings, when opportunity to counter the case of other side, on this score, by producing evidence had been provided and not otherwise."
The above contention did not find favour as a result whereof the question of res judicata was examined, therefore, same question cannot be allowed to be re-agitated in exercise of review jurisdiction as it has been held in the case of Abdul Ghaffar-Abdul Rehman v. Asghar Ali (PLD 1998 SC 363) i,e, "the powers of.Review cannot be invoked as a routine matter to re-hear the case which has already been decided nor change of a counsel would warrant sustaining of review petition, but the same can be pressed into service where a glaring omission or patent mistake has erupt in earlier by judicial affability".
11. It may be noted that while examining whether appeals/petition are hit by the principle of res judicata, we have already held that the question stands disposed of finally, therefore, it cannot be re-opened on the same grounds, which were agitated during earlier round of litigation. In this behalf, it is to be noted that in Mohanlal v. Benoy Kishna (AIR 1953 SC 65), it has been held that "even erroneous decision on the question of law operates as "res judicata" between the parties to it.
The correctness or otherwise of judicial decision has no bearing upon the question whether or not it operates as `res Judicata". A decision in the previous execution case between the parties that the matter was not within the competence of the executing Court even though erroneous is binding on the parties". In this behalf reference may also be made to Sobhag Singh v. Jai Singh (AIR 1.968 SC 1328).
12. It is equally important to note notwithstanding the fact whether in the earlier round of litigation, the question under consideration was not specifically pleaded by the petitioners, but fact remains that the question arose during the hearing of the case, which was attended to by the majority opinion as well as by the learned Single Judge, who recorded the minority opinion and on this question all the. Judges were unanimous, therefore, now the petitioners are debarred to re-agitate the same question. Reference in this behalf may be made to Prem Narain v. Ram Charan (AIR 1932 Privy Council 50) wherein it has been held as follows:- "Where a point is not properly raised by the plaint, but both parties have without protest chosen to join issue upon that point, the decision on the point would operate as res judicata between the parties."
In addition to above, in the earlier round of litigation, which culminated in the case of Gadoon Textile Mills's case (ibid) and in the proceedings which have given rise to instant proceedings and judgment under review, question with regard to curtailment of period of 50% rebate in the electricity tariff for a period of five years through letter dated 25th May, 1995 i,e, 28th December, 1999, which was subsequently reduced to 2nd June, 1997, was directly, substantially and incidentally the same, therefore, it had rightly been held that the appeals/petition filed by them are barred by principle of res judicata.
13. It may be noted that after the pronouncement of the judgment in Gadoon Textile Mills's case
(ibid) review petitions were filed and appellants/petitioner, who are now before us were also party to the same but they did not opt to file review petition against the judgment and opted to invoke the jurisdiction of the Peshawar High Court for the same relief, which was opposed by the WAPDA on the question of res judicata as well, as it has been observed in the judgment under review, therefore, it is difficult for us to persuade ourselves that appeals/petition of the petitioners were not barred by the principle of res judicata.
14. It is also to be noted that on merits no decision has been given in the judgment under review, therefore, it was not necessary to discuss the judgments in the case of Collector of Central Excise and Land Customs v. Aziz-ud-Din Industries Ltd., (PLD 1970 SC 439), M.Y. Electronics Industries (Pvt)
Ltd. v. Government of Pakistan (1998 SCM R 1404) and Friends Textile Mills v. Government of Pakistan (2004 SCM R 346). Had the Court decided to examine the merits of the case, only then it was bound to consider the ratio decidendi of these judgments.
15. As we are of the considered opinion that there is no error apparent on the face of record, therefore, the judgments which have been relied upon by learned counsel for petitioners relating to power to review the judgment in exercise of jurisdiction under Article 188 of the Constitution of Islamic Republic of Pakistan, need no discussion because there is no cavil with the principles laid down therein.
Thus for the foregoing reasons, we are of the opinion that no case is made out for review of the judgment, as such all the petitions are dismissed. No order as to costs.