MUHAMMAD ILYAS, J.--This Letters Patent Appeal has a long and chequered history dating back to 1947 when a house abandoned by an evacuee in, the town of Campbellpur was allotted by the local administration to an Advocate, Syed Mir Ahmad Shah, who happens to be the appellant before us. As a non-claimant local, on 7th November, 1959, he applied for the transfer of the house, under Scheme No. 1, stating that since its value was less than Rs. 10,000 he was entitled to its transfer. According to relevant instructions holding the field at that time he could not be transferred the house in dispute in the absence of a declaration by him that he did not possess his own house and his monthly income being meagre, he was unable to build a, house of himself. As he had not made a declaration to that effect, his application was rejected on 10th March, 1860 by the Deputy Settlement Commissioner.
Subsequently, the aforesaid instructions were withdrawn. The appellant then applied for review of the order whereby his application had been rejected. As the review petition was not legally competent, his case was referred to the Additional Settlement Commissioner who allowed him to file an appeal. In the meantime, the house had been transferred to one Abdur Rehman. On account of this development, the appeal filed by the appellant, was rejected. Faced with this situation, the appellant moved a writ petition in the' erstwhile High Court of West Pakistan; which was also dismissed. He then applied to the Supreme Court for special leave to appeal against the order passed on the writ petition but the same was refused by order, dated the 4th October, 196.5. The appellant then made on application for review of the aforesaid order of the Supreme Court which was also dismissed .On 9th March, 1966, with the observation that the High Court had no jurisdiction to interfere with "a lawful order" passed by the Settlement Authorities.
2. Without being deterred by his aforesaid failures before different forums, the appellant then brought a civil suit in the Court of Senior Civil Judge, Campbellpur. Before the filing of the suit, Abdur Rehman aforesaid to whom the house, in dispute was transferred and who is respondent No. 3 in the present appeal, had sold the house to Mst. Sahibzadi Jamila Begum who figures as respondent No. 2 in this appeal. The appellant, therefore, impleaded Pakistan and the said two respondents as defendants in the suit instituted by him: The relief claimed by him therein was a declaration to the effect that he was owner of the house in dispute and that defendant No. 1, Pakistan was legally bound to transfer, the house to him on payment of Rs. 9,505, and that the transfer of the house in favour of respondent No. 3 Abdur Rehman, and the sale made by him in favour of defendant No. 2, Mst. Sahibzadi Jamila Begum were void and of no legal effect. By way of consequential relief, he prayed for a permanent injunction r6training defendants Nos. 2 and 3 from interfering in his possession over the house in dispute.
3. The suit was resisted on various ground which gave rise to the following issues:
(i) Whether this Court has no jurisdiction to try this suit?
(ii) Whether the plaintiff has got a locus stands to bring this suit?
(iii) Relief.
4. The learned Senior Civil Judge decided both the issues against the plaintiff-appellant and dismissed his suit. He filed an appeal before the District Judge, Campbellpur, which also failed. He then preferred a second appeal before the erstwhile High Court of West Pakistan which met the same fate. Finally, he has come up in Letters Patent Appeal before us.
5. After the filing of the appeal in hand, one of the respondent, Mst. Sahibzadi Jamila Begum died and Mr. Abdul Hamid and five others were brought on record as her legal representative. Also, during the pendency of this appeal, Haji Qadir Bakhsh and six others made an application (C. M.
No. 2580/C/1978) under, Order XXII, rule 10 read with rule 11, of the Code of Civil Procedure stating that during her life time Mst. Sahibzadi Jamila Begum had sold the house in dispute in their favour.
Therefore, they prayed for being impleaded as respondents in the appeal as successors in-interest of Mst. Sahibzadi Jamila Begum. The order passed on the aforesaid application of Haji Qadir Bakhsh and others was that subject to all just exceptions, they could appear to watch/protect their interest in the proceedings.
6. When we were going to hear this appeal on merits, Malik Muhammad Jafar, learned counsel of Haji Qadir Bakhsh and others (who claim to be successors-in-interest of Mst. Sahibzadi Jamila Begum, respondent No. 2) raised a preliminary objection that since the order of the Settlement Authorities rejecting the appellant's application for transfer of the house had stood the test of scrutiny right upto Supreme Court in the first round of litigation, the orders of the Supreme Court referred to above operated as res judicata against the proceedings resulting in the present appeal.
In support of this contention, he cited the case of Muhammad Chiraghud Din Bhatti v. The Province of West Pakistan etc. 1971 SCMR 447 in which it was ruled as follows: "It was argued by the learned counsel for the petitioner that the order of the High Court made in writ jurisdiction did not oust the jurisdiction of the civil Court to determine the legality of the order of the petitioner's dismissal from service, as made by the respondent. We do not agree with this contention. The principal point on which the petitioner had attacked the Commissioner's order in his civil suit was also directly and substantially raised by him earlier in his writ-petition in the High Court for the same reliefs. The High Court had finally settled that issue between the parties by observing that the services of the petitioner had been competently terminated by the Government, and that the defect in the Commissioner's order was covered by the order subsequently made by the Provincial Government. 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 or over-ridden the orders of the High Court competently made in another jurisdiction on the same subject between the same parties."
Learned counsel for the respondents also endorsed the plea raised by Malik Muhammad Jafar and placed reliance on the case of Muhammad Shafi and another v. Muhammad Bakhsh and another PLD 1971 Lah. 148 in this regard. In this case a Division Bench of this Court observed as under :- "From this point of view we consider that 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. In the proceedings under Article 98 this Court had not left the case undecided on merits but had consciously, for reasons stated in its order, upheld the validity of the orders passed by the Settlement Authorities., Consequently we consider that the subordinate Courts were bound by the decision made by this Court and hence the Additional District Judge was justified in accepting appeal on that short ground."
7. In reply, learned counsel for the appellant, Ch. Muhammad Ismail, urged that since the order of the High Court dismissing Writ Petition (W. P. No. 590/64) in limine as also the order passed by. The Supreme Court were made without hearing the opposite- party they 'could not operate as res judicata. In support of this view, he cited the cases of Sh. Barkat Ali v. M. S. Zaman, Additional Settlement Commissioner and 2 others PLD 1968 Lah. 770 and Rana Zafarullah Khan v.
Muhammad Usman and others PLD 1978 Lah. 901. All these authorities are of no help to the appellant. In the case of Sh. Barkat Ali, the earlier writ petition was dismissed In limine on the ground of laches and in the case of Rana Zafarullah .The writ petition filed before that case was disposed of as having become infructuous. Thus, in both- these cases there was no verdict of the Court on the merits of the case. As against this, in the instant case the High Court as well as the Supreme Court considered the question of the legality of the order assailed before them and finally their Lordships of the Supreme Court were pleased to remark that it was "a lawful order". Thus, the present case is clearly distinguishable from the cases cited by the learned counsel for the appellant.
8. The mere fact that the orders passed against the appellant in the. First round of litigation were made without summoning the opposite-party is not enough to save the first appeal from the operation of the principle of res judicata. If there is a pronouncement by the-Supreme Court regarding the merits of any case it will operate as res Judicata even if it is made while disposing of a matter in limine. Same view was expressed in the case of Muhammad Shafi and another to which a reference has already been made.
9. We are, therefore, of the considered view that the original order of the Supreme Court as also the one passed on the review petition filed by the appellant operates as res judieata against the civil suit brought by the appellant as also the proceedings arising out of the suit, including the appeal in hand. While deciding the review petition of the appellant on 9th March, 1966 the Supreme Court had clearly observed that the order made by the Settlement Authorities was "a lawful order". It will, therefore, be nothing short of the abuse of the process of law if the aforesaid .Verdict by the Supreme Court is questioned before a Civil Judge or for that matter any other Court on the ground that the order made by the Supreme Court is in connection with a constitution writ and not a civil suit. With a view to ensuring smooth and harmonious working of our judicial system, it is necessary that any order competently passed by the Supreme Court should not be open to attack before a subordinate Court even though such subordinate Court happens to do dealing with a matter in a category different from the one which is decided by the Supreme Court. This view also derives support from the following comment on the doctrine of res judicata appearing at page 187 of the Halsbury's Laws of England (Third Edition, Volume 15): "The doctrine applies equally in all Courts, and it is immaterial in what Court the former proceeding was taken, provided only that it was a Court of competent jurisdiction or what form the proceeding took, provided it was really for the same cause."
10. In view of the decision of the Supreme Court, therefore, we hold that, on the general principle of res judicata, the suit filed by the appellant and all other proceedings based thereon, including the instant appeal, e are not competent. Consequently, without going into the merits of the case before us, we dismiss the appeal for the aforesaid reason, with costs.
11. Before concluding his arguments learned counsel for the appellant prayed that if his appeal were dismissed a certificate may be issued in favour of the appellant enabling him to file an appeal before the Supreme Court. Since the question on which the appellant has lost before us has been authoritatively resolved by the Supreme the-appellant we are not inclined to issue the desired certificate. The request made by the learned counsel is, therefore, not acceded to.