MAULVI ANWARUL HAQ, J.---This Judgment will decide Writ Petition No. 13059 of 2006 and Writ Petition No. 13060 of 2006 as these proceed against a consolidated judgment.
2. Four civil suits, inter se, the private parties to this writ petition are pending. These were consolidated. Inter alia, following issues Nos. 11 and 12 were framed by the learned Trial Court:--- "11 Wnether the suit titled Muhammad Mazhar ul Haq v. Sheikh Ijaz ul Haq was hit by Section 10 CPC? OPP
12. Whether suit titled Muhammad Mazhar ul Haq v. Sheikh ljaz ul Haq could not proceed in view of decree dated 23.10.1977 passed on award dated 3.11.1976? OPP"
The learned Trial Court was directed by the learned District Judge to treat the said two issues as preliminary. The said issues accordingly were taken up, evidence of the parties was recorded and the learned Trial Court answered both. The issues in favour of Muhammad Mazhar ul Haq, petitioner in these cases, vide finding recorded on 30.10.2004. These findings were questioned by respondents Nos. 2 and 3 on the one hand and respondents Nos.4 to 9 on the other hand by filing separate civil revisions. These revisions were heard together by the learned Additional District Judge, Toba Tek Singh who allowed the same on 28.11.2006.
3. The learned counsel for petitioner in these cases contends that the learned Additional District Judge has acted without jurisdiction while holding the suit to be barred by res-judicata on the basis of a judgment to which admittedly the petitioner was not party.
4. The learned counsel for contesting respondents, on the other hand, contends that keeping in view the facts and circumstances of the case the learned Additional District Judge has not committed any error of jurisdiction or of law while reversing the findings of the learned Trial Court on the said issues.
5. I have gone through the copies of record. I may note here that the certified copies of entire record are appended with Writ Petition No. 13060 of 2006. The suit referred to in the said issues was filed by the petitioner against the private respondents on 25.09.1999. It was stated that the property mentioned in para 1 of the said plaint was allotted to Muhammad Sadiq and Muhammad Afzal sons of Noor Mahi by Settlement Department and PTD was issued on 31.10.1966. They were owners in equal share. On the death of Muhammad Sadiq his share devolved upon the petitioner, respondents Nos. 3, 14 to 17 while on the death of Muhammad Afzal his share devolved upon petitioner, respondents Nos.4 to 13. He accordingly claimed separate, possession of 1/5th share by partition. Respondents Nos. 2 and 3 filed a joint written statement. It was in this written statement that an objection was raised that the dispute regarding assets of Muhammad Afzal, father of the said respondents were referred to arbitration and an award was made on 13.11.1976 and the suit property was declared to be in the ownership of legal representatives of Muhammad Afzal. At that time the factory stood nationalized and it was decided that whenever the Government will pay compensation it would be divided amongst heirs of said Muhammad Afzal. This award or its proceeding were never questioned. The award was made rule of Court and decree was passed by the learned Civil Judge on 23.10.1997. Since this decree remained unchallenged the suit could not proceed. The said award is Ex. P-2. The learned Arbitrator has narrated that the dispute had arisen regarding the assets of Sheikh Muhammad Afzal son of Sheikh Noor Mahi and the defendants had referred the dispute to him. The matter was accordingly decided. The arbitration agreement is Ex.P.3 while the application for making award rule of Court is Ex. P.1, I find that, neither the petitioner nor any other heirs of Muhammad Sadiq were party to the arbitration agreement award or to the said proceeding under Sections 14 and 17 of the Arbitration Act, 1940. The learned Trial Court, therefore, very correctly observed that the said award or the decree passed in terms thereof is of no relevance in the present suit. His observations are fully supported by the provisions of Section 11 CPC as also Article 54 of Qanun-i- Shahadat Order, 1984.
6. The learned Additional Sessions Judge has observed in para 8 of the impugned order dated 28.11.2006 that no doubt the petitioner was not party to the said agreement award or the decree, however, according to the learned ADJ since the decree has been passed by the Court of competent jurisdiction until the said decree remains intact the Court could not decide the matter otherwise. He has advised the petitioner first to get the decree set aside. The said observations of the learned ADJ are wholly without lawful authority. Articles 54 to 58 of the Order ibid deals with the relevancy of the judgment of the Court of justice. Since the judgment has not been rendered in probate,. Matrimonial, admiralty or insolvency jurisdiction; neither it relates to the matter of public nature, of course, it does not constitute resjudicata and does not prevent any Court to take cognizance of the suit for partition because the petitioner admittedly was not party thereto. By virtue of Article 57 of the Order ibid it has no relevance.
7. Apart from the above, Article 58 of the Order ibid lays down that even if a judgment relevant under Articles 54 to 56 of the Order ibid is proved by a party, the other party can demonstrate in that very suit that it was delivered by a Court not competent to deliver or was obtained by fraud or collusion. Thus, from whatsoever angle seen tile learned ADJ has acted without lawful authority while holding the judgment to be relevant and it bar to the suit filed by tile petitioner. Both the writ petitions are accordingly allowed and the impugned order dated 28.11.2006 is set aside being illegal, without lawful authority and of no consequence. Copy of this judgment shall be immediately sent to the learned Trial Court to proceed in the matter accordingly. .