1. ' MUHAMMAD ALI MAZHAR, J.---By this order, I will dispose of CMA No,3015 of 2007 filed by the defendant under Order VII, rule 11 read with section 151, C.P.C. In which it has been stated that the plaintiff filed the instant suit on the basis of cause of action in respect of wharfage purportedly payable by the defendant on "Ship to Shore Cranes and Rubber Tyre Gantry Cranes". It is also mentioned in the application that the Hon'able Supreme Court in Civil Petition No,1103 of 2006 (Karachi International Container Terminal Limited v. Karachi Port Trust) wherein the defendant was petitioner and the plaintiff was respondent held that wharfage is not payable by the defendant in respect of the said cranes. The Hon'able Supreme Court's judgment concludes as under:- "We are not able to find any basis whatsoever either in law or in the agreement or any other equitable principle to justify the claim of the Karachi Port Trust against the petitioners for wharfage.
2. Accordingly this petition is converted into appeal, is allowed, the impugned judgment of the learned High Court is set aside and the demand of the respondent for wharfage on the cranes imported by the petitioner, is declared to be without lawful authority. Since payment of wharfage already made by the petitioner to the respondent was under protest it is directed that the said amount shaJ1 be refunded to the petitioner or adjusted towards the pecuniary liability of the petitioner under the agreement."
3. ' It was further stated that in view of the pronouncement of the Hon'able Supreme Court that wharfage is not payable by the defendant on the subject cranes, the plaint does not disclose any cause of action hence it is liable to be rejected. It is also stated that in view of the judgment of the Hon'able Supreme Court which has decided a question of law, there is no likelihood of the suit being decreed in favour of the plaintiff. Neither any cause of action is subsisting in favour of the plaintiff and against the defendant nor there is any likelihood that any judgment can be passed in favour of the plaintiff. According to the defendant the Judgment of the Hon'able Supreme Court is binding on both the parties and is applicable to the facts of the instant suit.
4. ' The plaintiff filed counter affidavit through its Manager Legal in which it has been stated that the judgment referred to in this application was in respect of Civil Petition No,1103 of 2006 and related to consignment in the month of February, 2004, and was subject of Port dues/wharfage charges.
5. Against this judgment, a Review Petition has already been moved which is pending adjudication in the Hon'able Supreme Court. It has been further stated that till review petition is decided , it would be appropriate by this court to dismiss the instant application as there is a possibility that after hearing review petition, the honourable Supreme Court may amend its earlier order. On the date of hearing of this application the advocate for the plaintiff had also filed a statement in which it was stated that an indentical Suit No,1201 of 2006 is pending in which the same ground was urged but this court did not accept the contention of the defendant and framed issues for further proceedings. In the concluding paragraph of the statement it was stated that if in this matter this court is not inclined to frame the issues then appropriate order may be passed with a direction that the present suit will stand revived in case the Hon'able Supreme Court accepts the Review Petition No 150 of 2007 filed by K.P.T. In Civil Petition No, 1103 of 2006.
6. ' I have heard the learned counsel and perused the material available on record. Learned counsel for the defendant focused his arguments on the judgment passed by the Hon'able Supreme Court in C.P.No,113 of 2006, which was passed between the same parties and the Hon'able Supreme Court set aside the demand of plaintiff for Wharfage on the cranes imported by the petitioner. Learned counsel further stated that since the Hon'able Supreme Court has decided a question of law, therefore, it has the binding effect according to Article 189 of the Constitution of Islamic Republic of Pakistan, 1973. Learned counsel further argued that the alleged review petition is pending since 2007 and the plaintiff has completely failed to produce any stay order for suspending the operation of the judgment dated 12-2-2007 passed by Hon'able Supreme Court. Finally he argued that the entire claim of the plaintiff is based on Wharfage bill and the cause of action is alleged to have been accrued on 7-2-2004 when the plaintiff assessed the Wharfage Charges. At present no cause of action subsisting to be decided by this court after the judgment of Hon'able Supreme Court.
7. ' Learned counsel for the plaintiff emphatically argued that the application under Order VII rule 11, C.P.C. Is liable to be dismissed, since the review petition is pending adjudication in the Hon'able Supreme Court, therefore, the plaint cannot be rejected at this stage. However, he concedes that in presence of judgment of Hon'able Supreme Court the present suit cannot proceed, hence, for the same reasons learned counsel for the plaintiff filed a statement on 17-5-2010 in which it was stated in paragraph 3 that if this court is not inclined to frame issues then the court may be pleased to pass appropriate orders with direction that this suit will stand revived in case Hon'able Supreme Court accepts review petition. On a query of the court, the learned counsel for the plaintiff further stated that though the review petition has been filed but the operation of the order passed by the Hon'able Supreme Court between the same parties which is the subject-matter of the present application has not been suspended so far and it holds the field unless reviewed by the Hon'able Supreme Court. It is an admitted fact that suit was filed in the year 2006 in which the plaintiff has claimed the Wharfage Charges and the cause of action is alleged to have been accrued on 7-2- 2004. While the suit was pending, the Hon'able Supreme Court has decided the case between the same parties in the similar matter and also reproduced the following definition of Wharfage from Karachi Port Trust Manual for the Traffic Department:- "WHARFAGE: Wharfage means the statutory dues which the Importer or his Clearing Agents or Shipper or his Forwarding Agents are liable to pay on the goods imported or shipped. The charges are levied against the merchandise for the use of the wharf or other facilities that have been provided by the Port Authorities in landing or shipping the goods."
8. ' Keeping in view the definition of Wharfage, the Hon'able Supreme Court held that the liability to Wharfage is that of the importer or his clearing agent or shipper or forwarding agent of the goods imported or shipped and the charges are levied against merchandise for the use of the Wharf or other facilities that have been provided by the port authorities in loading or shipping the goods.
9. This definition clearly excludes payment of any Wharfage on the equipment which is necessary to provide these services. The Hon'able Supreme Court has further held that these cranes, as per plain reading of the definition of "Wharfage", are not the goods imported or shipped against the "merchandise" to attract the Wharfage. Finally the petition was converted into appeal, the impugned judgment of this Court dated 13-9-2006 passed in C.P.No,1401 of 1998 was set aside and the demand of the K.P.T. Raised in connection with the Wharfage on the cranes imported by Karachi International Container Terminal Ltd. (Defendant) was declared to be without lawful authority.
10. ' Now for this court, it is to be seen whether the suit can proceed even after the detailed judgment passed by the Hon'able Supreme Court on the same subject-matter and whether filing of review petition in any way prevents or hinders the binding effect of original judgment passed by the Hon'able Supreme Court of Pakistan. Article 189 of the Constitution of Islamic Republic of Pakistan, 1973 enunciates that the decision of Supreme Court to the extent that it decides question of law or is based upon or enunciates the principle of law, be binding on all other Courts of Pakistan. For the ready reference Article 189 is reproduced as under: "189. Decision of Supreme Court binding on other Courts.b Any decision of the Supreme Court shall, to the extent that it decides question of law or is based upon or enunciates a principle of law, be binding on all other courts in Pakistan."
11. ' The Hon'able Supreme Court in its judgment reported in Sh. Muhammad Rafique Goreja and others v. Islamic Republic of Pakistan and others 2006 SCM R 1317 has held that the law declared by the Supreme Court is binding on the State and its officers and they.Are bound to follow it whether the respondents in a particular case were parties or not to the previous petition. The ultimate responsibility of interpreting the law of the land is that of the Supreme Court. Therefore, any decision by the Supreme Court shall, to the extent it decides a question of law or is based upon or enunciates a principle of law, is binding on other Courts in Pakistan. Law declared by Supreme Court becomes law of the land and is binding not only on all Courts in Pakistan but also on all functionaries of the Government.
12. ' Another judgment is reported in Farhat Azeem v. Waheed Rasul PLD 2000 SC 18 in which the Hon'able Supreme Court has held that Supreme Court is the highest judicial forum in the country, it has to interpret the law while hearing appeals from the judgments of the High Court and the subordinate judiciary. Invariably such matters are considered by more than one Judges having long experience and thrash out the proposition brought before them in the light of the chain of judgments rendered on the controversy in issue and ensure that continuity of law is maintained as it is essential for good judicial administration. The subordinate judiciary should always give its utmost respect, regard and consideration to the judgments, decrees, directions and orders of the Supreme Court, for, it is necessary apart from the binding nature of the same for maintaining discipline in all ranks of the judiciary. When the Supreme Court itself gives due consideration to earlier decisions rendered by it, it is not understood as to why the subordinate judiciary in Pakistan should turn a deaf ear to the judgments, awards findings or observations of the Supreme Court.
13. The Courts and authorities subordinate to the Supreme Court are under legal obligation to follow the law laid down by it, and if they consider that the case-law cited before them is not relevant or applicable to the facts and circumstances of the case they are dealing with, then they should distinguish it with reasons showing application of mind by them. This exercise would enable the party citing the case law to understand as to why the precedents relied upon by it were. Not followed.
14. ' According to the dictum of superior Courts every judgment has two classifications one is "judgment in personam" or "inter parties" and "judgment in rem". According to Black's Law Dictionary 6th Edition, a "judgment in personam" means a judgment against a particular person, as distinguished from a judgment against a thing or a right or status. While "Judgment in rem" means adjudication pronounced upon the status of some particular thing or subject-matter, by a tribunal having competent authority. It is founded on a proceedings instituted against or on some thing or subject-matter whose status or condition is to be determined. Though the judgment of the honourable Supreme Court is judgment in rem but in this particular case, it is judgment in personarn also for the same issue which has been decided by the honourable Supreme Court between the same parties in earlier proceedings, therefore, the bar of res judicata is also applicable. The doctrine of res judicata is of universal application and in fact a fundamental concept in the organization of every jural society. Section 11, C.P.C. Provides that no court shall try any suit or issue in which the matter directly and substantially in issue in a former suit between the same parties. It has been further provided that the expression "former suit" shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto.
15. The Hon'able Supreme Court in its judgment reported in Mustufa Kamal v. Dawood Khan PLD 2004 SC 178 has discussed the principle of res judicata and held that finality should impart to judicial decisions and if a case is res judicata, it may not be reopened as to adjudge again. Once the matter between the parties to a suit or proceedings is decided and the decision has become final either because no appeal lies or an appeal was taken or if taken, it was dismissed, none of the parties shall be allowed to canvass the same matter again in a subsequent suit or proceedings between the same parties and as a result of the application of principle of res judicata as embodied in section 11, C.P.C. All future litigation at any length between the parties must proceed on the presumption of correctness of the previous decision. Res judicata is a rule of universal law pervading in every well regulated system or jurisprudence and is put open two grounds, embodied in various maxims of the common law: the one of the public policy and necessity which makes it in the interest of State that there should be an end to litigation-interest republicae ut sit finis litium.
16. The binding character of judgment pronounced by Courts of competent jurisdiction is itself an essential part of the rule of law and the rule of law obviously is the basis of the administration of justice on which the Constitution lay so much emphasis. In another judgment reported in Muhammad Salimullah v. Additional District Judge, Gujranwala PLD 2005 SC 511 the Hon'able Supreme Court has held that in certain circumstances, court shall not try a suit or issue involving a matter no longer open to contest, either on a question of law or fact, by reasons of an earlier decision if the matter in issue in the subsequent suit directly and substantially is the same which was involved in the earlier litigation. The plaint in the subsequent suit can certainly be rejected under Order VII, rule 11, C.P.C. On the basis of principle of res judicata without framing issues and recording evidence but Order VII, rule 11, C.P.C. Contemplates rejection of plaint only on the basis of averments made in the plaint to consider whether there is a failure of the cause of action or the suit is barred under some provisions of law but the plaint cannot be rejected under Order VII, rule 11, C.P.C. On the basis of pleas raised by the defendant in the written statement in his defence as at this stage the pleas are only contentions which are not based on the evidence. Order VII, rule 11, C.P.C. Become operative only when the plaint if liable a be rejected on the basis of its contents taken to be true and correct but the court can also rely upon the documents annexed to the plaint and brought on record with written statement to consider the question of application of Order VII, rule 11, C.P.C.
17. ' The Hon'able Supreme Court has already decided the question of law therefore, it also operates res judicata between the parties. The judgment F is binding and this court has no jurisdiction to proceed further in the matter. Mere filing of review does not operate any stay by the Hon'able Supreme G Court suspending its original judgment in which review has been sought. he Hon'able Supreme Court has itself held in its judgment reported in Muhammad Ashiq and others v. Water and Power Development Authority 2009 SCM R 749 that the scope of review being very limited, review cannot be treated as a substitute for appeal proceedings. Principles of law and norms as enumerated by the Supreme Court in Abdul Ghaffar-Abdul Rehman and others v. Asghar Ali and others PLD 1998 SC 363 still hold field and cannot lost sight while deciding a petition for review. It has been further held that unfortunately, a trend has developed during recent years to challenge each and every judgment through review petition treating and considering the review as a substitute for appeal proceedings. I feel no hesitation to hold that after the pronouncement of judgment of the Hon'able Supreme Court, no cause of action subsists in favour of the plaintiff and to proceed the matter any further will be nothing but a futile exercise which will ultimately culminate with the dismissal of the suit. It would be advantageous to rely upon a judgment of this court reported in Diamond Rubber Mills v. Pakistan Television Corporation Ltd. And 2 others 1989 CLC 1989. In this judgment, the learned Single Judge of this court has discussed Order VII, rule 11, C.P.C. In detail and held that when at any given time, cause of action ceases to subsist or bar under any law comes into operation and the position is discernible from the plaint, recourse to Order VII, rule 11, C.P.C. Can be taken. This is an old age golden principle of law that for the purposes of rejection of the plaint, only the averments of H the plaint should be looked into to ascertain and discover whether the plaintiff has any cause of action or not but in the case in hand, this important aspect cannot be lost sight or overlooked that according to Article 189 of the Constitution of Islamic Republic of Pakistan, the judgment of honourable I Supreme Court has binding effect on this court, this court cannot proceed the matter any further except the rejection of plaint.
18. ' The bottom line of this discussion leads to me a conclusion that even the averments of the plaint are deemed to be true, no relief can be granted to the plaintiff keeping in view the decision of the Hon'able Supreme Court. In the result thereof, the plaint is rejected, however, it is clarified that if at any point of time the Hon'able Supreme Court reviews or revisits its judgment dated 12-2-2007 and in result thereof, any cause of action accrues to the plaintiff, a fresh suit for recovery may be instituted by the plaintiff in this court.
19. ' The application is disposed of in the above terms.
20. Plaint rejected.