Iftikhar Muhammad Chaudhry, C.J.--Through the above review petition, the petitioners seek review of order/judgment of this Court dated 22.03.2007 passed in CPLA No, 1468-L/2005.
2. Syed Shahryar Hussain, the predecessor-in-interest of the petitioners, a refugee from non- agreed area of India, filed a claim for 36000 PIUs and was allotted 16302 kanals 6 marlas land in revenue estates of Noorpur, Khai Kalan and Jharkal, District Khushab. In terms of the provisions of MLR 89 of 1961, his entitlement was reduced to 5350 PIUs. Under' a scheme for disposal of lands surrendered under MLR 89 as amended by MLR 91 notified through notification dated 28.12.1961, such lands were offered for sale at the rate of Rs, 10 per PIU and the first option to purchase was given to the persons who had surrendered the same, which option was required to be exercised by making application to the concerned Deputy. Commissioner before 28.12.1962. Syed Shahryar Hussain, exercising his right to purchase the surrendered land, filed two applications dated 17.11.1961 sand 26.11.1961 before the target date for the purchase of his surrendered land, which were received and registered-in the relevant record of the office of EAC, Jauharabad On 20.03.1973, he made an application to the Board of Revenue that he had exercised the option within one month's time limit, but-his application had been misplaced by the staff and requested that he may be allowed to purchase 6650 PIUs out of the land surrendered by him. His application was sent to the Deputy Commissioner, Sargodha who vide order dated 5th April, 1976 consigned it to record on the ground that the applicant had not been able to substantiate his claim of having exercised the option within the prescribed period. Having been unsuccessful before the Additional Commissioner Sargodha, he filed Writ Petition No, 1707 of 1979 before the Lahore High Court, which was dismissed in limine on 24th March, 1979.
3. The Colonies Department vide letter dated 3rd November, 1987, on an application moved by the legal heirs of Shahryar Hussain allowed them to purchase the surrendered land at the rate of Rs, 10/-per PIU up to 8000 PIUs. Further, they were held entitled to additional 3370 PIUs. Subsequently, on an application moved by the legal heirs of Shahryar Hussain, Deputy Commissioner, Khushab allowed them to purchase the entire available surrendered land holding that each of legal heirs could purchase the surrendered land up to the extent of the ceiling of 8000 PIUs. M/S Zahoor Hussain and Falak Sher, lessees of the surrendered land, by means of Writ Petition No, 15010/1997 challenged the orders of sale of the surrendered land to the legal heirs of Shahryar Hussain on the ground that the Member Colonies and the District Collector, Khushab had unlawfully allowed 28000 PIUs to the legal heirs of Shahryar Hussain in excess, raising their holding to more than 15000 kanals of valuable land. Vide judgment dated 11th December, 1997, a learned Judge of the Lahore High Court disposed of the writ petition with the observation that the Board of Revenue having decided to reconsider the matter, it would be open to the writ petitioners to make an application for becoming a party in those proceedings. The Member, Board of Revenue, vide order dated 30th April, 2004 resumed in favour of the State the land allowed to be purchased by the legal heirs of Shahryar Hussain.
4. The petitioners then filed a civil suit for a declaration and permanent injunction that the above order of the Member Board of Revenue was illegal, void and without jurisdiction. An application for the grant of temporary injunction was moved along with the suit, but the same was dismissed by the learned Civil Judge and the appeal filed against it was too dismissed by a learned Additional District Judge on 13th April, 2005. The Civil Revision filed against the said order was disposed of by the Lahore High Court vide order dated 25.05.2005 with a direction that the suit will be heard and decided by the trial Court before the end of the year 2005 and in the meantime the parties were directed to maintain status quo as existing on the date of filing of the suit. The matter came up before this Court in CPLA No, 1468-L/2005, which was converted into appeal and allowed vide order/judgment dated 22.3.2007 sought to be reviewed through the instant review petition.
5. By the judgment under review, while the plaint of the petitioners was rejected under Order VII rule 11 CPC, notices were issued to them to show cause why they should not be punished for contempt of Court for having commenced proceedings in a subordinate Court through the said plaint after the matter had attained finality in terms of the judgment of the High Court dated 24th March, 1979, which was not challenged any further. Notices were also issued to the Advocate who had filed the said plaint as well as the Senior Civil Judge/Civil Judges seized of the suit ever since its filing to show cause as to why proceedings should not be taken against them for having entertained and proceeded with the suit in question where the plaint itself mentioned that the matter stood finally determined by the High Court vide judgment dated 24th March, 1979 passed in Writ Petition No, 1607 of 1979. The petitioners were directed to vacate the suit land and to hand over its vacant possession to the District Officer (Revenue).
6. The learned counsel for the petitioners submitted that the dismissal of the aforesaid writ petition was not a final determination of the issues raised therein, inasmuch the same was dismissed in limine on the ground that it suffered from laches. therefore, there was no bar to file the civil suit or seek any other remedy available under the law. According to the learned counsel, the judgment under review having proceeded on an incorrect premise that the matter had been finally determined by the High Court vide order dated 24th March, 1979, the same was liable to be reviewed. Further, the moot point in the case, namely, whether the predecessor-in-interest of the petitioners had exercised his option to purchase the surrendered land by him remained unsettled, for the determination whereof civil suit was competent, which would be decided after recording of evidence on both the sides. Reference was made to Durvas u. State of UP (AIR 1961 SC 1457), P.I.D.C. v. Pakistan (PLD 1984 Karachi 1) and Habibullah Khan v. Muhammad Ishaq (PLD 1966 SC 505).
7. Mr. A.K. Dogar, learned Sr. ASC for the alleged contemners, apart from the aforesaid rulings has cited Muhammad Sharif v. Inayat Ullah (1996 SCMR 145) and Barkat All v. M.S. Zaman (PLD 1968 Lahore 770).
8. Mr. Saeed-ur-Rahman Farrukh, Sr. ASC has appeared on behalf of applicants seeking implement on the ground that they were bona fide purchasers for value without notice, therefore, their rights were protected under the law. He stated that under MLR 89 read with MLR 91, such persons were allowed to purchase the land in question.
9. Ch. Khadim Hussain Qaiser, learned Additional Advocate General, Punjab has submitted that if writ petition is dismissed on the ground of laches or for the reason that the High Court in exercise of writ jurisdiction is not empowered to go into a question of fact, civil suit can always be filed.
According to him, the civil suit was rightly filed in the instant matter. He has also relied upon the judgment in Durvas case (supra).
10.We have heard the learned counsel for the parties and have perused the judgment under review as also the case-law cited at the bar.
11.In Muhammad Sharifs case, it has been held that the judgment of the High Court dated 01.03.1986 passed in two writ petitions filed by Mst. Munawar Khatoon etc. did not operate as res judicata, inasmuch as the only issue before the High Court in the writ petitions related to the cancellation of the allotment of Inayat Ullah and Ismail who naturally were interested in restoration of their allotment and so were the writ petitioners and, therefore, no question as to the alleged fraud was or could be raised in those petitions. It was further observed that the question of forgery/fraud as set up by the plaintiffs in . their plaint was not examined/dealt with in the judgment of the High Court dated 01.03.1986. The cited case is distinguishable because there the question of forgery and fraud was raised in the civil suit, which could not be raised in the writ petition.
12.In P.I.D.C.'s case (supra), with respect to the objection raised by the counsel for the respondent that the petition was barred under Order XXIII, Rule 1(3), C.P.C. as well as on the principle of res judicata as the previous petition filed by the petitioners on identical ground had been withdrawn by them unconditionally, the Court relied upon Durvas' case and observed that in the absence of an express order by the Court granting permission to file a fresh proceeding in allowing withdrawal under sub-rule (2) of rule 1 of Order XXIII, C.P.C. it would necessarily fallow that such a permission had been granted by the Court or otherwise the Court while allowing withdrawal in such a case could not refuse to grant permission. This precedent too, does not apply to the case in hand as the same dealt with a situation where previous petition was withdrawn without an express order to file a fresh proceeding.
13.In Habibullah Khan's case, it has been held that equity does not, however, proceed upon any a priori basis. It has, therefore, never treated delay simpliciter as a bar. Unless the delay has caused some prejudice to the other party, equity has not intervened to excuse performance of a contract.
So long as matters remain in status quo and there is nothing to show that the party called upon to perform has been misled by the inaction of the other party to alter his position in such a manner as to make it inequitable to force him to perform his part of the contract, lapse of time short of the period prescribed by the Limitation Act should not be allowed to operate as a bar to the claim of the relief. The precedent case emanated from a contractual obligation and cannot be applied to the facts of the present case.
14.In Barkat Ali's case (supra), it has been observed that the general principles of res judicata do apply to proceedings in writ jurisdiction. The necessity for the application of the general principles of res judicata arises from giving finality to the litigation in cases where there is no statutory provision forbidding the re-opening of the matter once it is decided by a tribunal of competent jurisdiction. This rests on public policy that no person shall be vexed twice over the same cause.
However the above statement must be understood subject to one qualification. As observed by the Supreme Court in C.I. T. v. Waheed-uz-Zairian (PLD 1965 SC 171), the general principles of res judicata are applicable with limitation and not with the same strictness as in a dispute of civil nature. In such cases, the bar of res judicata is to be confined to cases where decision is not clearly open to some objection or a decision which is reached after proper enquiry". In other words, it would be permissible to re-open the matter where there has been no enquiry or on grounds of fresh evidence.
15.Notably, the above judgments followed the principle laid down by the Indian Supreme Court in Durvas' case (supra), wherein the question for consideration was as to whether or not a subsequent petition to the Supreme Court under Article 32 of the Indian Constitution on the same facts and for the same reliefs filed by the same party would be barred by the general principle of res judicata where the High Court had dismissed a writ petition under Article 226 of the Constitution. The Court held as under:-- "19. We must now proceed to state our conclusion on the preliminary objection raised by the respondents. We hold that if a writ petition filed by a party under Art. 226 is considered on the merits as contested matter, and is dismissed the decision thus pronounced would continue to bind the parties unless it is otherwise modified or reversed by appeal or other appropriate proceedings permissible under the Constitution. It would not be open to a party to ignore the said judgment and move this Court under Art. 32 by an original petition made on the same facts and for obtaining the same or similar orders or writs. If the petition filed in the High Court under Art. 226 is dismissed not on the merits but because of the laches of the party applying for the writ or because it is held that the party bad an alternative remedy available to it, then the dismissal of the writ petition would not constitute a bar to a subsequent petition under Art. 32 except in cases where and if the facts thus found by the High Court may themselves be relevant even under Art. 32. If a writ petition is dismissed in limine and an order is pronounced in that behalf, whether or not the dismissal would constitute a bar would depend upon the nature of the order. If the order is on the merits it would be a bar; if the order shows that the dismissal was for the reason that the petitioner was guilty of laches or that he had an alternative remedy it would not be a bar, except in cases which we have already indicated. If the petition is dismissed in limine without passing a speaking order then such dismissal cannot be treated as creating a bar of res judicata. It is true that, prima facie, dismissal in limine even without passing a speaking order in that behalf may strongly suggest that the Court took the view that there was no substance in the petition at all; but in the absence of a speaking order it would not be easy to decide what factors weighed in the mind of the Court and that makes it difficult and unsafe to hold that such a summary dismissal is a dismissal on merits and as such constitutes a bar of res judicata against a similar petition filed under Art. 32. If the petition is dismissed as withdrawn it cannot be a bar to a subsequent petition under Art. 32 because in such a case there has been no decision on the merits by the Court."
Thus, it was held by the Indian Supreme Court in the above cited case that if a writ petition filed by a party under Art. 226, which is pari materia with Article 199 of the Constitution of Pakistan, is considered on merits as a contested matter, and is dismissed, the decision thus pronounced would continue to bind the parties unless it is otherwise modified or reversed by appeal or other appropriate proceedings permissible under the Constitution. It would not be open to a party to ignore the said judgment and move the Supreme Court under Art. 32, which is pari materia with Article 184(3) of the Constitution of Pakistan, by an original petition made on the same facts and for obtaining the same or similar orders or writs. The precedent case does not apply to the facts and circumstances of the present case, inasmuch as the matter was dealt with by the Indian Supreme Court in different jurisdictions, which is not the case here.
16. At this juncture, reference may be made to the case of Abdul Majid v. Abdul Ghafoor Khan (PLD 1982 SC 146), wherein this Court, in somewhat similar circumstances, had dealt with the controversy raised therein as under:-- "The next argument of the learned counsel that the High Court was not competent to deal with the questions which have been raised in the civil suit, thus its decision thereon would not operate as res judicata also, ignores the reality that the main controversy was competently brought before the High Court in its writ jurisdiction. After its decision thereon it was open to the parties to challenge the same in accordance with law governing the question of finality of the High Court decisions namely through review and appeal. It was an attempt to bypass the normal legal course by resort to a remedy which was not available to the petitioners under any law or principle. The reliance of the learned counsel on an observation in the case of Muhammad Swaleh to the effect that even the decisions of the High Court and the Supreme Court could be challenged before a Civil Judge 3rd Class, is misplaced. It is with profound respect pointed out that the remarks in this D behalf were of general nature in the field of jurisprudence on the theoretical side. It was observed that when a nullity is brought before any Court, it is entitled and also bound to ignore it. It was in this connection that the remark relied upon by the learned counsel was also made. When citing the same it is often ignored that it was not ruled by this Court (in case of Muhammad) Swaleh that in a situation visualised in the remarks, the party seeking the redress would not be entitled to bring the matter before the same Court (in case of Supreme Court by way of review or in other proper proceedings, and in case of High Court before the same Court as aforesaid- or before the Supreme Court), and that the same Court would not be competent to deal with it or that the only remedy was by way of a civil suit before a civil Court. These questions did not arise in that. case. It is also to be kept in view that although Section 44 of the Evidence Act permits party to a decision, to show that it was obtained by the other party by fraud or collusion or that the Ccurt acted without competence; but it does not lay down a mandate that it must be shown in a separate suit and not by moving the same Court or the appellate Court. Notwithstanding the foregoing comment on this question it is necessary to explain that the High- Court or the Supreme Court might itself, in view of peculiar circumstances of a given case, when re-opened before it on any ground which might require further examination in a proper trial by a lower Court, make such observations, as might enable that Court to deal with the relevant questions including that of nullity." Abdul Majid's case was further clarified in Asif Jah Siddiqi v. Government of Sindh (PLD 1983 SC 46) wherein it was, inter alia, held as under:-- "Before closing this judgment while reiterating the principles laid down in the case of Abdul Majid, it needs to be clarified that depending upon the circumstances of each case ordinarily it would not apply to the observations or decisions by the Superior Courts in the orders which arise out of proceedings in the nature of interim relief like temporary injunctions. Normally a case does not get decided in such a situation and in most of the cases the facts and circumstances are not fully presented and/or noted. Although when deciding the question like an interim injunction observation might be made that the decision thereon would not affect the result of the trial of the suit but even if such an observation is not made, ordinarily the effect would be the same."
In the present case too, the main controversy was competently brought before the High Court in its writ jurisdiction. After its decision thereon it was open to the parties to challenge the same in accordance with law governing the question of finality of the High Court decisions, namely, through review or appeal. In the circumstances, the filing of suit instead was an attempt to bypass the normal legal course by resort to a remedy which was not available to the petitioners under any law or principle.
18.The judgments from Pakistani jurisdiction relying upon Durvas' case cited on behalf of the petitioners were rendered prior to the judgment of this Court in Abdul Majid's case (supra) wherein the principle of finality attaching to the decisions of the High Court and the Supreme Court was expounded and it was held that where the matter is decided by the High Court or the Apex Court, the same cannot be brought before the civil Court for reopening of the same.
19.Under Section 25 of the Settlement & Rehabilitation Act, 1958 jurisdiction of the civil Courts is barred, and though in certain cases, it has been observed that the ouster of jurisdiction is not absolute and a civil suit may, in certain circumstances, be filed, but the same would depend upon the facts and circumstances of each case. In Abdul Majid's case (supra), this aspect of the matter was highlighted as under:- "There is a further reason for repelling the argument of the learned counsel. Section 9, C.P.C. provides that the civil Court shall have jurisdiction to try all suits of civil nature "excepting suits of which their cognizance is either expressly or impliedly barred". The ratio underlying the decision in the case of Abdul Majid is law declared. It would thus appear that the suit filed by the petitioner in this case would be barred by Section 9, C.P.C. both expressly and impliedly. When looking at various aspects of the question of res judicata, it is expressly barred, because the Supreme Court has declared it as a law. And impliedly, because even if it had not come strictly within the four corners of the facts of the case of Abdul Majid, the ratio of the said case and the principle discussed therein, would impliedly bar the suit."
20.The entitlement of the predecessor-in-interest of the petitioners in the instant case was determined by the Revenue Authorities against which, as noted hereinbefore, a civil suit is barred.
The learned Judge of the High Court, in his order dated 24.03.1979, after noting the contention of the petitioner that despite the fact that the petitioners' predecessor-in-interest had been pursuing the matter, no action was taken came to the conclusion that his learned counsel was not in a position to show that any effort from 1962 to 1976 was ever made, therefore, either the petitioner had acquiesced or was not interested. As a matter of fact, he had already lost the case before the Revenue Authorities. Had he been interested in pursuing his case, he would have approached the High Court earlier because his claim had been consigned to record by the Deputy Commissioner on 05.04.1976 on the ground that he had not been able to substantiate his claim of having exercised the option within the prescribed period. He then remained unsuccessful before the Additional Commissioner Sargodha Division. The learned Judge of the High Court dismissed the writ petition for the reason that the petitioner could not justify his claim coupled with the fact that it suffered from laches. This order was accepted by him to be final for all intents and purposes. Once the order was finally accepted and conceded to, it is very difficult to re-agitate the same matter ordinarily before any forum in respect of the cause of action, which was the subject matter initially before the Revenue Authorities and finally before this Court. The predecessor-in-interest of the petitioners could have exhibited his interest by challenging before this Court the order of the High Court passed in 1979. The petitioners being bound by the actions and deeds of their predecessor- in-interest are legally estopped to re-agitate the matter. Therefore while dismissing the CPLA, this Court had rightly directed to initiate action of contempt of Court against all concerned responsible for making an attempt to sit in appeal over the judgment passed by the High Court. In these circumstances, if we were to review the impugned judgment, it would open a Pandora's Box in a matter where the rights of the parties stand already determined.
21.As far as interveners' application for impleadment is concerned, in view of above conclusion, no relief can be granted to them in the present proceedings.
22.No one has appeared on behalf of appellants/applicants in CM Appeal and the miscellaneous applications. The same are dismissed accordingly.
23.The review petition is dismissed in view of the above discussion.