' SALAHUDDIN PANHWAR, J.---The petitioner Messrs Eman Textile Mill through its Chief Executive Abdul Salam Arain has invoked the constitutional jurisdiction of this Court.
2. Concisely, facts set out in this petition, are that the petitioner is owner of Plot No,B-85situated in Industrial Unit Site Area Sukkur; an abundant area of canal, owned by Irrigation Department was located at Muhag of Plot No,B-85, same was in possession of the petitioner, the petitioner raised Boundary wall on that Plot in 1983. The Plot No,B-62 is owned by respondent No,9, which is situated adjacent to the above referred Plot; the respondent No,9 with the help of official respondents demolished Boundary wall of the Plot, which was in possession of the petitioner, being aggrieved petitioner filed Petition Constitutional Petition No,D-2734 of 2011 before this Court, same was disposed of, subsequently petitioner came to know that the Plot in Muhag has been leased out to respondent No,9 by the high-ups illegally and secretly in spite of ban on lease; Irrigation Department has not relinquished the above area to the revenue department, therefore the revenue department was not competent to dispose of the land; the petitioner has got preferential right upon the subject-matter.
3. Record further reveals that the respondent No,9 filed counter-affidavit which discloses that the plot owned by the petitioner admittedly is an industrial plot leased out by SITE limited Sukkur.
Muhag rights do not attach to the Industrial Plots and apply to land meant for Agricultural purpose only. The petitioner only holds to a lease holder rights to an Industrial Plot bearing No,B-85. Muhag rights are applicable only to the agricultural land and they do not attach the Industrial plot; respondent No,9 owns Plot No,B-62 and B-86 which have been leased out to it by SITE. Some portion of abundant area was already leased out to the respondent No,9 in the year 1996, same has not been challenged by the petitioner. The petitioner has no locus standi to file this petition.
The petition is bad for non-joinder of necessary party.
4. The official respondents 2, 4 and 5 have filed their comments in which, they have denied the claim of petitioner on Mohag right in relation to plot meant for establishing Industrial Unit; the subject land was abundant land, not in use, thus was available for allotment; constitution petition is not maintainable on the ground that the same relates to the disputed question of fact which requires recording of evidence.
5. Learned counsel for the petitioner has reiterated his assertions as mentioned in the memo of petition and has relied upon 2008 SCM R 105.
6. Learned counsel for the respondent No,9 has inter alia contended that the petitioner has no locus standi to file this petition as the petitioner and respondent No,9 both having title of 2 plots allotted by SITE, therefore, no one can claim a matter of Mohag right.
7. Learned Addl. A.-G Sindh appearing for the official respondents, adopted the arguments as advanced by the learned counsel for the respondent No,9.
8. Heard the counsel appearing for the respective parties and perused the material available on record.
9. Since the petitioner itself has maintained in this petition that earlier the petitioner filed a petition, being Constitutional Petition No,D-2734 of 2011 "Re-Messers Ehan Textile Mill through Chief Executive v. Province of Sindh & others" before this Court, therefore, before diving into merits of the instant petition we, feel it quite proper and reasonable to examine the judgment of this Court, passed in earlier petition which was reported as 2012 M LD P-902, so as to see the applicability of the principle of res judicata in the instant petition thus we have to draw inference that whether earlier petition was decided on merits, all questions involved in this petition were adjudicated and parties were same? Before responding this proposition it will be proper to see that whether doctrine of res judicata can be pressed in Writ Jurisdiction? On this count, there are numerous decisions of honourable Supreme Court. In the case of Mirza Muhammad Yaqub v. The Chief Settlement Commissioner Lahore and another reported in PLD 1965 SC 254, the honourable Supreme Court observed that:- "A petitioner is not entitled to take different plea at different times so as to file more than one writ petition on the same facts. For a further plea that proper course would be to file a petition for review if such a petition be maintainable. The general principle of res judicata is applicable to writ jurisdiction also".
' In case of Muhammad Saleemullah and others v. Additional District Judge Gujranwala and others reported in PLD 2005 SC 511, it is held that:-- "9. There can be no cavil to the legal position that the judgments of the superior Courts in Constitutional jurisdiction on the questions of law or facts have binding ' force and the parties are not allowed to reopen the settled issues, directly or indirectly but to claim the bar of res judicata, on the basis of a judgment of superior Court rendered in the Constitutional jurisdiction, it is essential to prove that the dispute brought before the Court was previously adjudicated in the proper manner and was conclusively decided in such jurisdiction. The decision on the question of law on the basis of settled principle and a decision on a question of fact on the basis of proved facts and legal evidence, would be res judicata and parties would not be permitted to re-open the settled issues but a decision on a disputed question of fact based on no evidence, would not debar the judicial determination of such question in a subsequent adjudication. The net result of the above discussion is that there can be no departure to the settled law, that the principle of res judicata cannot be pressed into service unless it is established that the matter in issue was earlier adjudicated on merits and conclusively decided".
' In the case of Ghulam Akbar Lang v. Dewan Ashiq Hussain Bukhari and others reported in 2012 SCM R 366, it is held that:-- "15. We do not concur with the finding of the learned High Court in regard to the invalidity of the degree on the basis of report of the Assistant Controller. However, the other observations that the degree was not forged, was itself sufficient ground to dismiss the petition of the appellant. The next contention of the appellant that bona fides in a writ of quo warranto, cannot be allowed to be gone into, was also without force. Once the learned High Court has already recorded the finding on the issue of degree raised in the present proceedings by appellant in an earlier writ petition which findings have not been upset in appeal by this Court, the present petition on such issue would be bar on the principle of 'constructive res judicata' besides the fact that the appellant, otherwise, had political connections with the very group which has previously filed the Election Petition. In such like circumstances, bona fides of a petitioner in a writ of quo warranto can be examined to save a party from vexing twice'.
After meticulous examination of above case-law it is suffice to say that the ratio of above judgment is that the principle of res judicata is applicable in writ petitions accordingly the issue, involved in writ petition, is no longer open to contest either on question of law or fact by reason of an earlier decision, if the matter in issue, in, the subsequent writ petition, directly and substantively, is the same, which was involved in the earlier decided writ petition. It is also commanding proposition of law that a party cannot be vexed twice in same jurisdiction which makes it clear that principle of res judicata is a principle of universal applicability.
10. Now we advert on proposition set forth in the instant petition in context of doctrine of res judicata as refuted above. From the perusal of judgment, passed in the earlier petition, reported as 2012 M LD 902 reflects that it was between the same parties and the root of the issue (s) was almost same which is in the instant petition and same was decided on merits. The operative part of the above referred judgment would make it clear that all the issues, raised in the instant petition, were not only brought on record but were responded by this Court. Therefore, for convenience it will be conducive to reproduce the relevant paragraph of the said order:-- Relevant portion of paragraph 10.
"There is another difficulty that the land in question has been leased out to the company by virtue of lease deed dated 12-8-2011, which is 'a registered document. The petitioner's grievance against the registered lease cannot be redressed unless he moves to the civil court for seeking the relief of cancellation of lease deed. In this constitutional petition, neither this court can cancel the registered lease deed (underlining is ours) nor any such relief has been sought in the memo of petition. The documents filed by the respondent No,10 along with counter-affidavit clearly demonstrate that the land in question was properly leased out to CBL. Not only the document of lease was executed and registered, but the possession was also handed over, therefore, in view of this matter, the petitioner must have invoked either the jurisdiction of civil court or to avail other remedies, (underlining is ours) as stated above, but this constitution petition is not maintainable.
The petitioner has raised numerous disputed questions of facts and factual controversies which cannot be decided by us in its constitutional jurisdiction ...
Paragraph 11...........................
11. After examining the entire material, we have no hesitation in our mind to hold that the contentions raised by the parties cannot be decided without evidence. We cannot enter into factual realm or embark upon an exercise to determine complicated question of facts. The resolution of such like controverted issues is ordinary left to the proper forums,prescribed by law indulgence in such exercise would have effect of pre-empting and enforcing upon the jurisdiction lawfully vested in the competent courts".
11. The operative parts of the judgment leave nothing ambiguous that there is specific findings of this Court on the very issue of the status of the lease of the land/ plot in favour of the respondent No,1 and even other questions, including alleged dispossession of petitioner etc. Were also discussed and decided in the above judgment hence we cannot sit 'over the judgment already passed by this court. Thus instant petition is barred under the doctrine of res judicata as the subject-matter involved in this petition cannot be decided again in writ jurisdiction and it is manifest that petitioner in existence of earlier decision, has filed instant petition with unclean hands: However, it was held in earlier decision of this Court that petitioner may approach to the civil Court for determination of his right; therefore this petition is without merits, misconceived and also an abuse to the process of this Court thus same is hereby dismissed.