Challenge in this revision is to the judgment and decree dated 13.4.2010 passed by the learned Addl. District Judge, Pasrur who affirmed the judgment and decree dated 3.10.2009 passed by the learned Civil Judge, Pasrur whereby the petitioners' suit was dismissed on the principle of res judicata.
2. The facts which form the background of the instant petition are that the Petitioners Nos, 1 and 2 and predecessor of the Petitioner Nos, 3 to 7 through Mutation No, 6030 dated 15.3.1963 sold the land measuring 105 Kanals 9 Marlas to Respondent No, 4 (Muhammad Bashir). Thereafter, Muhammad Bashir resold half of the above said land in favour of the petitioners vide Mutation No, 6078 dated 24.2.1964. On 24.2.1964 Sultan Ali, predecessor of Respondent Nos, 1 to 2, instituted a suit for possession through pre-emption against Muhammad Bashir (Respondent No, 4) in respect of Mutation No, 6030. Muhammad Bashir contested the suit. It is worth mentioning here that in this suit the petitioners were not impleaded. The suit filed by Sultan Ali was decreed by the learned trial Court vide judgment and decree dated 17.7.1967 and as a consequence thereof Mutation No, 6328 was attested in favour of Sultan. On coming to know about the attestation of above said Mutation, the petitioners on 3.5.1968 filed a suit against the respondents and called in question Mutation No, 6326. In the meantime, on the application of Sultan Ali, Mutation No, 6328 was cancelled on 9.5.1973 and resultantly the suit was dismissed as withdrawn on 23.6.1973. Pursuant to cancellation of the said mutation, the Respondent Nos, 1 to 3 on 16.1.1974 filed a suit against the petitioners for possession of the suit land. The petitioners contested the suit. This suit was dismissed as withdrawn vide order dated 15.9.1990 with a permission to file a fresh suit. Meanwhile, Mutation No, 1141 was attested on 4.8.1983 in favour of the respondents. Feeling aggrieved, the petitioners challenged Mutation No, 1141 but the same was dismissed vide order dated 27.12.1986 by the Assistant Commissioner, Sialkot. Against the said order, the petitioners' revision was dismissed by the Addl.
Commissioner vide order dated 21.8.1989. Being dissatisfied, the petitioners filed a revision before the Member Board of Revenue and it was accepted vide order dated 01.12.1991 and the case was remanded to the District Collector, Sialkot who while accepting the petitioners' appeal vide order dated 27.2.1996 set aside the Mutation No, 1141 dated 4.8.1983. The respondents challenged the vires of order dated 27.2.1996 before the Commissioner, Gujranwala Division and the same was accepted vide order dated 23.9.1996. The petitioners assailed order dated 23.9.1996 before the Board of Revenue, Punjab through a revision petition (ROR 1995 of 1996) but the same was dismissed vide order dated 23.10.2000. Feeling aggrieved, the petitioners filed Writ Petition No, 2988/2001 before this Court and the same was dismissed vide order dated 26.2.2003. The petitioners challenged the order dated 26.2.2003 passed by this Court in the above mentioned writ petition before the Hon'ble Supreme Court of Pakistan through C.P.L.A. No, 769-L/2003 but the same was dismissed as withdrawn vide order dated 19.01.2007. Thereafter, the petitioners instituted a suit for declaration along with permanent injunction against the respondents and called in question Mutation No, 1141 dated 4.8.1983. In response to summons, the respondents entered appearance before the learned trial Court and contested the suit by filing a written statement. The learned trial Court by invoking the provisions of Section 11, C.P.C. dismissed the suit vide judgment and decree dated 3.10.2009. The petitioners assailed the legality of the above said judgment and decree through an appeal before the learned Addl. District Judge but it was dismissed vide judgment and decree dated 13.4.2010, Hence, this petition.
3. Learned counsel for the petitioners submits: (i) that the suit filed by the petitioners could not be dismissed on the principle of res judicate without framing issues. In support of this plea, learned counsel for the petitioners referred GHULAM RASOOL son of KALU VS. GHULAM RASOOL and others (2007 SCMR 1924), ABDUL HAMEED and another Vs. DILAWAR HUSSAIN Alias BHALLI and others (2007 SCMR 945), Q.B.E Insurance (International) Ltd. vs. JAFFAR FLOUR AND OIL MILLS LTD. and others (2008 SCMR 1037), ZAHIR SHAH and others Vs. BAHADAR KHAN and others (2001 MLD 1785), NAWAB VS. REHMAT KHAN (1995 MLD 1014), RAJA GHULAM HAIDAR Vs. Major (R) JAMSHAID ALAMA (1991 MLD 1284), MUHAMMAD ANWAR AND OTHERS V. MIAN NOOR AHMAD AND OTHERS (1995 MLD 269) and MEHBOOB ELAHI V. WAPDA and others (1994 CLC 1337); (ii) that the order passed by the Revenue Authorities neither operate as res judicata nor debar the aggrieved party to establish his right or title in respect of immovable property by invoking the jurisdiction of civil Court. In support of this contention, the learned counsel for the petitioners relied upon GHULAM RASOOL son of KALU VS. GHULAM RASOOL and others, (2007 SCMR 1924), Mir REHMAN KHAN and another Vs. Sardar ASADULLAH KHAN and 14 others (PLD 1983 Quetta 52), Mst. GUL PARTI alias GULBARO Vs. ZARIN KHAN and others (PLD 1994 Pesh. 249) and ABDUL KHALIQ and others Vs. KHUDA-E-DAD and others (2008 YLR 781); (iii) that the matter in the suit was different from earlier litigation and, therefore, principle of res judicata could not be applied to the instant case. He made a reference to MUHAMMAD SALEEM ULLAH and others VS ADDL. DISTRICT JUDGE, GUJRANWALA and others (PLD 2005 SC 511), GHULAM MUHAMMAD and others Vs. MUHAMMAD HUSSAIN and others (PLD 2006 Lah. 223), HUSSAIN SHAH Vs. BANO BIBI and 9 others (2007 CLC 680), SARDAR MENHAJUDIN AHMAD VS. SUDHIR KUMAR SINHA and others (PLD 1959 Dacca 316).
4. Conversely, the learned counsel for the respondents vehemently opposes this petition and submits that principles of res judicata in the instant case clearly attracted to debar the petitioners from re-agitating the matter afresh by a civil suit, which had been put at rest by a judgment of this Court passed in W.P. No, 2988/2001. Learned counsel for the respondent further contends that the Civil Court cannot by-pass or over-ride the orders of the High Court competently made in constitutional jurisdiction on the same subject between the same parties. In support of his contention learned counsel for the respondent placed reliance on MUHAMMAD CHIRAGH-UD-DIN BHATTI Vs. THE PROVINCE OF WEST PAKISTAN (Now Province of Punjab) through COLLECTOR, BAHALWAPUR and 2 others (1971 SCMR 447), FAZAL DIN and 14 others Vs. THE CUSTODIAN, EVACUEE PROPERTY, LAHORE and 21 others (PLD 1971 SC 779), MUHAMMAD SHAFI and another Vs. MUHAMMAD BAKHSH and another (PLD 1971 Lah. 148), SHAHIDA PERVEEN VS. DISTRICT JUDGE, SIALKOT and another (PLD 1980 Lab. 7), AZAD GOVERNMENT OF THE STATE OF AZAD JAMMU & KASHMIR and another Vs. KASHMIR TIMBER CORPORATION (PLD 1979 SC (AJK) 139), SYED MIR AHMAD SHAH VS. THE PAKISTAN and 2 others (PLD 1979 Lah. 599), ABDUL MAJEED and others vs. ABDUL GHAFOOR KHAN and others (PLD 1982 SC 146), Mr. SAGHIR ALAM etc. Vs. Mst. KANIZ FATIMA etc. (1982 CLC 68), MUHAMMAD ANWAR Vs. Mst. NAWAB BIBI etc. (1989 SCMR 836), Sh. ABDUL AZIZ vs. MIRZA and three others (PLD 1989 SC (AJK)
78), MUHAMMAD ISMAIL us. PROVINCE OF PUNJAB through Collector, District Jhang (PLJ 1986 Lah. 16), Mst. RABIA BIBI and others Vs. FATEH MUHAMMAD through legal heirs (1994 CLC 1151), and KHURSHID KHAN and 7 others Vs. SARDAR MUHAMMAD (PLJ 2002 Lah. 1842).
5. I have heard the learned counsel for the parties and perused the record.
6. The question raised and argued before me with considerable emphasis is that the learned Courts below have erred in holding that the general principles of resjudicata are applicable to the case. It is well known that the doctrine of res judicata is codified in Section 11 of the Code of Civil Procedure. Section 11 generally comes into play in relation to civil suits but apart from the codified law, the doctrine of res judicata has been applied since long in various kinds of other proceedings and situation by the superior Courts. The rule of constructive resjudicata is engrafted in Explanation IV of Section 11 of the C.P.C. and in many other situations also the principles not only of direct res judicata but of constructive res judicata are also applied, if by any judgment or order any matter in issue has been directly and explicitly decided, the decision operates as res judicata and bars the trial of an identical issue in a subsequent proceedings between the same parties. The principle of res judicata comes into play when by judgment/order a decision of a particular issue is implicit in it, that is, it must be deemed to have been necessarily decided by implication even then the principle of res judicata on that issue is directly applicable. When any matter which might and ought to have been made a ground of defence or attack in a former proceedings but was not so made, then such a matter in the eye of law, to avoid multiplicity of litigation and to bring finality in it, is deemed to have been constructively in issue and, therefore, is taken as decided. The object and purpose of the principle of res-judicata is to uphold the rule of conclusiveness of judgment, as to the points decided earlier of the fact, or of law, or of fact and law, in every subsequent suit between the same parties. Once the matter which was the subject matter of lis stood determined by a competent Court, no party thereafter can be permitted to reopen it in a subsequent litigation.
Such a rule was brought into the statute book with a view to bring the litigation to an end so that the other side may not be put to harassment. In the instant case Mutation No, 1141 attested on 4.8.1983 in favour of predecessor of the Respondent Nos, 1 to 3 is the bone of contention between the parties. The validity of the said Mutation came up for consideration before this Court in W.P. No, 2988/2001. Having examined the entire available record, relied upon by both the parties, this Court did not exercise jurisdiction to set aside Mutation No, 1141 dated 4.8.1983. It is worth mentioning here that the High Court also considered the issue of referring the party to the Civil Court but it was not found advisable and, therefore, writ petition was decided on merit and all the pleas raised by the petitioners were repelled. The learned counsel for the petitioners canvassed with vehemence that the Hon'ble Supreme Court of Pakistan in C.P. No, 796- L/2003 granted permission to the petitioners to approach the civil Court for the enforcement of rights and, therefore, the suit could not be dismissed on the principle of res judicata. I am afraid this contention has no force. The Hon'ble Supreme Court recorded the statement of the learned counsel for the petitioners and disposed of the petition as withdrawn vide order dated 19.1.2007. In the above said order the Hon'ble Supreme Court has not granted permission to the petitioners to approach the civil Court so as to impugn the findings recorded by the High Court in W.P. No, 2988/2001. It is true that any order made by Revenue Authorities under the West Pakistan Land Revenue Act, 1967 do not bar any party to establish his right or title in respect of immovable property by invoking jurisdiction of civil Court. There is also no cavil to the proposition that order passed by the Revenue Authorities does not operate as resjudicata under Section 11, C.P.C. In the instant case, it is not the decision of the Revenue Authorities but the order passed by this Court in W.P. No, 2988/ 2001 which is operating as res judicata. Hence, the contention raised by the learned counsel for the petitioner to this effect has no substance as the law is now well established that where the validity of certain orders passed by a statutory or quasi judicial authority are questioned through a constitutional petition before the High Court but this attack fails and the High Court finds that the orders impugned before it are valid and not liable to be interfered with, any subsequent attempt to again impugn the same orders and to question their validity by filing a civil suit before the ordinary Civil Court will be barred on the general principle of res judicata. In this regard, guidance may be had from MUHAMMAD SHAFI and another Vs. MUHAMMAD BAKHSH and another (PLD 1971 Lah. 148), FAZAL DIN and 14 others Vs. THE CUSTODIAN, EVACUEE PROPERTY, LAHORE and 21 others (1971 SCMR 447), ABDUL MAJID and others Vs. ABDUL GHAFOOR and others (PLJ 1982 SC 286) and Ch. REHMAT ALI Vs. Haji JAN MUHAMMAD and others (PLJ 1983 SC 463). The findings recorded by the learned Courts below are unexceptionable and do not warrant any interference.
7. Mr. Muhammad Iqbal Mohal, learned counsel for the petitioner, in his usual eloquence laid much emphasis on the point that the learned trial Court could not dismiss the suit on the principle of res judicata without framing an issue to this effect. It is correct that the Court cannot examine or reject a suit on the ground of res judicata unless an issue is framed focusing the parties on that bar to suit. The pleadings in the earlier suit should be exhibited or marked by consent or at least admitted by both the parties. It is settled principle of law that the plaintiff should have an opportunity to explain or demonstrate that the second suit was based on a different cause of action. But the above said principles, in the instant case, in my view, are not applicable and the learned trial Court was not required to frame an issue to examine or reject the suit for the reasons: firstly, the petitioners in their plaint not only recorded all the facts in detail but also highlighted the pleadings of the earlier litigation and the judgment passed by this Court in W.P. No, 2988/2001; and, secondly, the parties were not at variance on question of earlier litigation. It may be added that the judgment of the High Court in the petitioners' Writ Petition No, 2988/2001, wherein the validity of the impugned Mutation No, 1141 dated 4.8.1983 was upheld, was, indeed, a decision rendered by the High Court on a point of law and, as such, this finding was binding on the subordinate Courts by virtue of Article 201 of the Constitution of Islamic Republic of Pakistan, 1973. Such being the legal position, the learned civil Court could not have, in the present case, held the same orders to be illegal and ultra vires, when the High Court had already found them to be legal and valid. The judgment of the High Court, which was passed in exercise of its constitutional jurisdiction, had left no question in issue undecided. It had, on the other hand, after applying its mind to the questions in issue, given a clear position on it for the reasons stated in the said judgment and proceeded to uphold the Mutation No, 1141 sanctioned by the Revenue Authorities. It is obvious that before the Civil Court the same issue was re-agitated and sought to be reiterated all over again. Thus they were precluded from doing both on the general principle of res judicata and also on the ground that the decision of the High Court deciding question of law is binding on all Courts subordinate to it. In view of this matter the learned Courts below are clearly justified in dismissing the petitioners' suit.
8. In view of above, this petition lacks merit and is dismissed with no order as to cost.