' SHUJAAT ALI KHAN, J--- By means of the instant revision petition, the petitioners have called in question the vires of judgment and decree dated 26-7-1994 passed by learned Civil. Judge, Hasilpur, whereby he dismissed the suit filed by the petitioners as well as judgment and decree dated 17-11-1996 by virtue of which the learned Additional District Judge, Hasilpur dismissed the appeal filed by the petitioners against the judgment and decree passed by the learned Civil Judge.
2. Succinctly, the facts, forming factual canvass of the instant petition, are that one Noor Muhammad was allotted land measuring 404 Kanals, 6 Marlas, along with two ihatas in Chak No,89/F, Tehsil Hasilpur District Bahawalpur under Abadkari 'Scheme. The said Noor Muhammad died in the year 1934 and, he was survived by Mst. Bibi (widow), Abdullah (brother) and Mst. Zenab (sister). Mutation of Tenancy was entered in the name of Mst. Bibi (widow) on 13-9-1934. Further, on 27-9-1.949 the Deputy Commissioner, Bahawalpur passed an order for execution of sale-deed in favour of Mst. Bibi which was challenged by Abdullah (deceased) in revision petition which was dismissed on 25-10-1949 with the direction to file a civil suit. Subsequently, the Collector Bahawalpur issued Patta Malkiyat qua suit-land as well as Ihatas Nos.28 and 38 in the name of Mst.
Bibi (widow) on 28-6-1950 and the same was registered on 24-3-1951 while Ihata No,6 was transferred in the name of said Mst. Bibi on 21-7-1965. In the year 1956, Abdullah brother of Noor Muhammad (deceased), filed a suit before the Senior Civil Judge, Bahawalpur, on 29-5-1951, seeking declaration to the effect that Mst. Bibi was not absolute owner. In 1953, the said Abdullah amended the plaint by urging that since Mst. Bibi had re-married she was no more owner of the suit property and he, along with other heirs, is entitled to inherit the estate left by Noor Muhammad (deceased). However, the said suit was dismissed due to non-prosecution on 5-5-1953. Again, another -civil suit was filed on 19-3-1956 on the ground of another marriage by Mst Bibi. However, the said suit was dismissed. The appeal filed by the plaintiffs in the said suit also met with the same fate, As a result, Abdullah filed R.S.A. No,23 of 957/BWP in the High Court of West Pakistan, Bahawalpur Circuit, at Baghdad-ulJadeed. The said appeal was dismissed vide judgment dated 19-10-1960. However, consequent upon 'amendment in the West Pakistan Muslim Personal Law (Shariat Application) Act, 1962 (hereinafter to be referred as the Act) the legal heirs of aforesaid Abdullah filed a suit seeking declaration to the effect that they being legal heirs of Noor Muhammad (deceased) are entitled to inherit land measuring 404 Kanals, 6 Marlas and the previous orders/judgments rendered in the proceedings instituted by their predecessor-in-interest were not binding upon them. The said suit was contested by the defendants Nos.1 to 6 by way of filing written statement. Out of the divergent pleadings of the parties, the learned trial Court formulated following twelve (12) Issues:- "(1) Whether defendant No,1 was only a limited owner in respect of the suit-land and the said rights had come to an end, irrespective of any orders and judgment in this behalf after the promulgation of Shariat Application Act, 1962? OPP
(2) Whether the plaintiffs are owners of the disputed property as heirs of Noor Muhammad deceased and they are entitled to their legal heirs as mentioned in the plaint? OPP
(3) Whether defendant No,1 has no right to transfer the land in dispute and "Ahata Jat" in dispute and oral mutation of Tamleek No,270 and oral mutation of Tamleek No,143 dated 26-5-1981 on behalf of defendant No,1 in favour of defendants Nos.2 to 6 are illegal, void, against law and facts, collusion and is the result of fraud and ineffective? If so, its effect? OPP
(4) Whether defendant No, 1-Alif to 1-Jeem are entitled to the inheritance of Ghulam Rasool second husband of the defendant No,1 Mst. Bibi to the extent of 1/8th share of the property in dispute? OPD 1-Alif to 1-Jeem.
(5) Whether the suit of the plaintiff is time-barred? OPD
(6) Whether this court has got no jurisdiction to entertain this suit? OPD
(7) Whether the Province of Punjab is. Necessary party if so, its effect? OPD
(8) Whether the suit hit u/o IX rule 8 and section 11 of C.P.C.? OPD
(9) Whether defendants Nos. 1 to 6 have prescribed their title over the suit-land through adverse possession? OPD
(10) Whether the suit is not maintainable in its present form? OPD
(11) Whether the suit is incorrectly valued for the purposes of .Court fee and jurisdiction? If so, what is the correct valuation and to what effect? OPD
(12) Relief. "
3. To discharge their onus, the plaintiffs examined Hidayatullah, Numberdar as PW-1 whereas statement of Ghulam Muhammad son of Hashim was recorded as PW-2. In addition to their oral evidence, plaintiffs also tendered in evidence certified copy of Mutation No,143, certified copy of order dated 6-3-1984 passed by Board of Revenue, certified copies of Patta Malkiyat, certified copies of application before Additional Commissioner, Bahawalpur and order dated 30-8-1983 passed thereon, copy of Fard Taqseem, Copy of Mutation No,270 and copy of order dated 30-8- 1982 passed by the Collector (Exh.P/1 to Exh.P/9 respectively).
4. On the other hand, Muhammad Tufail and Ghulam Rasool, two of the defendants appeared in the witness box as DW-1 and DW-6 respectively whereas Allah Ditta, Ghulam Rasool and Muhammad Tufail were examined as DW-2 to DW-5. In support of their version, the defendants also tendered in evidence copy of order passed by the High Court, copy of decree sheet, copy of order passed by Collector Bahawalpur, copy of Jamabandi and Khasra Girdawari as Exh.D-1 to Exh.
D-5.
5. On conclusion of the defendants' evidence, Ali Muhammad, one of the plaintiffs, got recorded his statement in rebuttal.
6. After going through the evidence, oral as well documentary, produced by the parties in support of their respective pleas the learned trial Court dismissed the suit filed by the petitioners vide judgment and decree dated 26-7-1994. Aggrieved by the said judgment and decree the petitioners preferred an appeal before the Additional District Judge, Hasilpur which too was dismissed vide judgment and decree dated 1-7-11.1996; hence this revision petition.
7. The arguments advanced by the learned counsel for the petitioners can be summed up in the words that while passing the impugned judgments and decrees both the courts below have failed to appreciate that section 2-A of the Act has retrospective effect; that both the forums below have failed to consider that Mst. Bibi (deceased) inherited to the property of Noor Muhammad under the customary law and with the advent of section 2-A of the Act the property in dispute was to be devolved upon the legal heirs under, the Sharia; that the learned trial Court as well as the learned Appellate Court while passing the judgments and decrees under. Attack totally ignored the fact that Mst. Bibi was only a limited owner; that the principle of res judicata is not applicable to the case of the petitioners; that the question of limitation also cannot impede the way of the petitioners and that the impugned judgments and decrees are result of misreading and non- reading of evidence and misapplication of the law on the subject. In addition to his oral submissions, learned counsel has also referred to the cases reported as Mst. Jhando and 6 others v. Muhammad Sharif and 9 others (2006 SCM R 882), Muhammad Yousaf and 2 others v. Mst.
Karam Khatoon and 2 others (2003 SCM R 1535), Raja Muhammad Akbar and others v. Iftikhar Jillani (PLD 1991 SC 71), Muhammad Bakhsh v. Zenab Bibi etc. (1991 SCM R 2397) Nizam Din and others v.
Amir and others (1989 SCM R 1958), Hakim Ali and others v. Barkat Bibi and others (1988 SCM R 293), Abdul Ghafoor and others v. Muhammad Shafi and others (PLD 1985 SC 407), Mst. Began v. Mst. Bai (1983 SCM R 80), Barkat Ali v. Mst. Sughran Bibi and another (NLR 1982 Revenue '110). Allah Rakha v.
Siraj Din and others (PLD 1967 SC 559) and Ilam Din v. Muhammad Din (PLD 1964 SC 842).
8. Conversely, learned counsel appearing on behalf of the respondents Nos.1 to 10, while defending the impugned judgments, argue that Mst. Bibi cannot be termed as limited owner as proprietary rights were conferred upon her subsequent to the payment made by her; that the predecessor of the petitioners tried their luck by way of filing two suits before the civil court in addition to proceedings before the revenue authorities but they did not succeed to get a declaration regarding Mst. Bibi as a limited owner and the order passed in R.S.A. No,23 of 1960 having not been challenged before the higher forum had attained finality as the petitioners stepped into the shoes of Abdullah (deceased) they were not obliged to file the suit, subject-matter of the instant petition on the cause of action which was pressed into service in the earlier suit; that concurrent findings of facts recorded by both the courts below are not open to interference by this court in exercise of its revisional jurisdiction and that the suit filed by the petitioners was barred by law.
9. I have heard the learned counsel for the parties at considerable length and have also gone through the voluminous record of documents appended with this petition in addition to the case- law cited by the learned counsel for the petitioners at the bar.
10. A perusal of the file shows that Noor Muhammad (deceased) was survived by Mst. Bibi (widow), Abdullah (brother) and Zenab Bibi (sister). As Noor Muhammad was enjoying tenancy rights on the land in dispute under Abadkari Scheme, the mutation of tenancy was entered in the name of Mst.
Bibi (widow) by virtue of mutation attested on 13-9-1934. Neither Abdullah nor Zenab Bibi raised any objection to the attestation of the said mutation in the name of Mst. Bibi till 29-5-1951 when Abdullah, brother of Noor Muhammad (deceased) instituted a suit before the Senior Civil Judge, Bahawalpur, seeking declaration to the effect that Mst. Bibi was not absolute owner rather she was entitled only to her share. By virtue of an amendment in the plaint of the said suit the aforementioned Abdullah changed the suit from declaration to that of for possession on the ground that Mst. Bibi having re-married ceased to be the owner of the suit property. However, the said suit was dismissed under Order IX, rule 8, C.P.C. Abdullah instead of taking any measure for restoration of his suit opted to file second suit on 9-3-1956 contending that since Mst. Bibi contracted another marriage in the year 1955, fresh cause of action had arisen in his favour. The said suit was dismissed and appeal filed by Abdullah against the dismissal of his suit was also dismissed by the learned District Judge, Bahawalpur. The said Abdullah challenged the order of the District Judge, Bahawalpur, before High Court of West Pakistan, Bahawalpur Circuit, at Baghdad-ul- Jadeed by way of filing of Regular Second Appeal No,23 of 1957/BWP. The same was also dismissed by a learned Division Bench vide judgment dated 19-10-1969 operative para whereof reads as follows:--- "We have carefully considered the proposition put forward by Mr. Chishty and are of the view that it cannot prevail. In the original suit instituted by the plaintiff Abdullah, in the year 1951, this claim rested on the basic assertion that Mst. Bibi had a life estate in the property, irrespective of the acquisition by her of the pata malkiyat the State Government. This basis was common to the two plaints submitted by him in the first suit and an issue was directly framed relating to the nature of Mst. Title in the property. This was issue No,6. In order to succeed vi the previous suit, it was necessary for Abdullah to show that Mst. Bibi had a widow's customary life estate in the property.
The same position obtains in the second suit which is the subject-matter of the appeal. Before Abdullah can ask us to hold that the widow has forfeited her estate because of re-marriage in 1955; he has to show that the widow had only a life estate, and that the acquisition by her of the pata malkiyat did not, in any way, improve her position. In other words, a part of the cause of action 'in the present suit is exactly .The same as in the previous one even though it be agreed that the re- marriage, which is now being alleged, is a different one and contracted subsequently to the dismissal of the first suit. It is, thus, clear that the provisions of Order IX, rule 9, Civil Procedure Code, would immediately come into play so as to preclude the plaintiff from bringing a fresh suit in respect of the same cause of action, namely, that Mst. Bibi had only a widow's estate in the property. It seems to us, therefore, that the two courts below were right in holding that the present suit was not competent. We dismiss the appeal with costs." (Emphasis provided).
' A perusal of the fore-quoted portion of the judgment passed by a Division Bench indubitably establishes that Abdullah, in his life time, failed to establish that Mst. Bibi was a limited owner. In this scenario, the question arises that as to whether the findings of a Bench comprising of two Hon'ble Judges can be substituted by a Single Judge of this Court. The answer definitely would be in negative.
The second question which surfaces on the scene is as to whether the petitioners were precluded to file the instant suit in view of dismissal of the suit filed by their predecessor-in-interest which remained intact upto High Court. In this regard, I am of the humble opinion that since the petitioners stepped into the shoes of said Abdullah and are claiming share in the property in dispute being his legal heirs, they are bound by the outcome of the suits filed by their predecessor- in-interest and they cannot claim that due to some amendment in the Muslim Personal Law (Shariat Application) Act, 1962 in the year 1972 they had a fresh cause of action specially when their predecessor-in-interest (Abdullah) did not take any measure even after promulgation of the Act.
11. Now coming to the most pivotal question involved in this petition, as to whether the provisions of section 2-A are applicable to the legacy of Noor Muhammad (deceased) or not, I am of the view that perusal of section 2-A of the Act would be conducive which for facility of reference is reproduced herein below: "2-A. Succession prior to Act IX of 1948.--- Notwithstanding anything to the contrary contained in section 2 or any other law for the time being in force, or any custom or usage or decree, judgment or order of any Court, where before the commencement of the Punjab Muslim Personal Law (Shariat) Application Act, 1948, a male heir had acquired any agricultural land under custom from the person who at the time of such acquisition was a Muslim:--- . (a) he shall be deemed to have become, upon such acquisition, an absolute owner of such land, as if such land had devolved on him under the Muslim Personal Law (Shariat);
(b) any decree, judgment or order of any Court affirming the right of any reversioner under custom or usage, to call in question such an alienation or directing delivery or possession of agricultural land on such basis shall be void, inexecutable and of no legal effect to the extent it is contrary to the Muslim Personal Law (Shariat) Act;
(c) all suits or other proceedings of such a nature pending in any Court and all execution proceedings seeking possession of land under such decree shall abate forthwith: ' Provided that nothing herein contained shall be applicable to transactions past and closed where possession of such land has already been delivered under such decrees. "
12. According to proviso to clause (c) (supra), the provisions of section 2-A are not applicable to the transaction past and closed where possession of such land has already been delivered.
Insofar as the case in hand is concerned, on the basis of the orders passed by the revenue authorities and observation of the High Court in F.A.Q. No,23 of 1957 possession of the land in dispute had already been handed over to Mst. Bibi (deceased). Further, according to the petitioners themselves, in Para C 7 of the plaint of the suit filed by them Mst. Bibi had already transferred the land in dispute along with Ihata No,6 in favour of defendants No,2 to 6 by virtue of Mutations Nos.147 and 270 attested on 26-5-1981, thus the property in dispute is not covered under section 2-A as the same fairly and squarely falls within the domain of past and closed transaction. While dealing' with somewhat similar question, the august Supreme Court of Pakistan in the case of Mst. Fatima Bibi and others v. Mst. Bibi and others (2010 SCMR 760) has inter alia observed as follows:- "13-A. Another aspect of the case is that the petitioner/defendant remained a tenant of the suit property until 1962, when she was assigned proprietary rights by an instrument executed on 12-2- 1962. This instrument of ownership had not been challenged by the plaintiff in the suit for she assailed only Mutations Nos.72 dated 7-8-1947 and No,5 dated 19-4-1964, whereby Mst. Fatima Bibi had gifted the property to her husband. The petitioner's ownership of the suit property, therefore remained unchallenged."
' Similarly, in Bashir Ahmed v. Abdul Aziz and others (2009 SCMR 1014) apex court of the country has held that when the property devolves upon a person under any custom, he becomes the absolute owner. The relevant portion of the said judgment is reproduced herein below:--- "9. Once it is settled that rule of inheritance at certain time was custom and some person acquired the property under custom from a Muslim, he shall be deemed to have become an absolute owner of such land as if such land had devolved on him under the Muslim Personal Law (Shariat) provided such acquisition had occurred prior to the enforcement of Punjab Muslim Personal Law (Shariat) Application Act, 1948."
' Similarly, a Division Bench of this court while dealing with said proposition in Ch. Salah ud Din Khan v. Ali Ahmad and 8 others (1987 CLC 584) inter alia held that-- "The law laid down by the Supreme Court of Pakistan in Abdul Ghafoor v. Muhammad Shafi PLD 1985 SC 407, while interpreting section 2-A of the West Pakistan Muslim Personal Law (Shariat) Act, 1962 (V of 1962), added by section 2 of the Punjab Muslim Personal Law (Shariat) Act (Amendment) Ordinance, 1983 (XIII of 1983) disentitles the appellant to dispute the legality of the alienations under custom because Nemat Khan would be deemed to be full owner of the land in dispute. Consequently, the appellant's suit insofar as it sought to get declared the sale transactions to be void and ineffectual on his rights on account of their being violative of the rule of custom would not be maintainable and he could very well be non-suited on that account. It follows that the appellant's appeal to question the imposition of condition of payment of Rs,2,04,000 becomes redundant and infructuous."
If we adjudge the instant case on the touchstone of the afore-quoted paragraph of the judgment of the apex court, the conclusion indefinite is that since the petitioners did not challenge the registration of pata malkiyat in favour of Mst. Bibi, they were not obliged to, challenge the subsequent events. Furthermore, the dismissal of the suit filed by their D predecessor-in-interest for declaring Mst.. Bibi as limited owner uptill the High Court also debarred them to file the instant suit. The case of Allah Rakha (supra) relied upon by the petitioners is not applicable for the reason that in the said case the plaintiff earlier filed suit on the ground of being a presumptive reversioner whereas after the death of the life estate holder the same plaintiff filed a suit claiming the entire property as the last male. Holder. Insofar as the case in hand is concerned, Abdullah, predecessor-in-interest of the petitioners not only filed a suit claiming relief on the ground of Mst.
Bibi being limited owner but also subsequently sought transfer of land in his name on the ground that the said Mst. Bibi ceased to be owner of the suit property on account of her re-marriage. In the suit in hand the claim of the petitioners is also that Mst. Bibi being limited owner was not obliged to transfer the entire land in dispute by way of oral gift While dealing with this situation, the august Supreme Court of Pakistan in S. Azhar Hussain Shah and others v. Muhammad Arshad and others (1988 SCMR 1320) had laid law to the following effect:--- "The facts which have given rise to this appeal are that respondent No,3 herein sold agricultural land measuring 590 Kanals and 9 Marlas situate in Chak No-. 37, Tehsil Ferozewala, District Sheikhupura to Lt. -Col. (Retd.) S. Mazhar Hussain Shah predecessor-in-interest of the respondents by a registered sale-deed dated 9-6-1964. Four years later on 3rd of June, 1968, respondents Nos.I and 2, the minor sons of respondent No,3 through their mother Mst. Fazal Begum instituted a suit in the Court of Senior Civil Judge Sheikhupura to seek a declaration that the impugned sale after the demise of respondent No,3 will not affect the reversionary rights of the said respondents as it was illegal and of no effect. This suit was resisted on the ground that it was incompetent as no declaratory relief could be had under custom in view of Act V of 1962 and further that the contesting respondents had no locus standi to file the suit.
' The trial Court dismissed the suit. Aggrieved by this judgment and decree, the respondents filed a regular first appeal in the High Court of West Pakistan, Lahore, which was allowed by judgment dated 10-3-1979 and the case was remanded to the Court of Senior Civil Judge, Sheikhupura, for deciding the suit on merits.
' The learned counsel for the appellants relied on- section 2-A of Ordinance XIII of 1983 to contend that the suit was incompetent and in support of it also relied on Muzaffar Khan v. Mst. Roshan Jan PLD 1984 SC 394 and Abdul Ghafaor v. Muhammad PLD 1985 SC 407.
' Upon an examination of the contention, we are of the view that the order of the High Court in allowing the appeal and remanding the case for trial on merits is against the provision of law, and, therefore, merits setting aside and we do so accordingly. "
In pith and substance, the claim of the petitioners in the suit, subject-matter of the instant petition, and that of their predecessor-in-interest was the same, therefore, the instant suit was not maintainable on the same cause of action.
13. Another important feature of the instant case is that according to averment contained in the plaint the claim of the petitioners is that after G introduction of section 2 of the Punjab Muslim Personal Law (Shariat)
' Application (Removal of Doubts) Ordinance, 1972 they were entitled to the legacy of Noor Muhammad and Mst. Bibi ceased to be the owner of the property in dispute w,e,f,.31st December, 1962. A bare reading of subsection (2) of section 2 of the Punjab Muslim Personal Law (Shariat)
Application (Removal of Doubts) Ordinance, 1972 brings it to light that previous decrees, judgment and orders passed in any suit appeal or other proceedings were open for decision afresh subject to the condition that an application was to be made by the concerned person in that behalf.
Insofar as the case in hand is concerned, neither Abdullah predecessor-in-interest of the petitioners nor any of the petitioners filed an application for fresh decision of the suits filed by Abdullah and the proceedings instituted by the predecessor-in-interest of the petitioners. In this scenario, the observation of the learned trial Court that suit of the petitioners was not maintainable is well-reasoned.
14. It is also interesting to note that the petitioners filed the suit subject-matter of the instant petition on the strength of section 2 of the Punjab Muslim Personal Law (Shariat) Application (Removal of Doubts) Ordinance, 1972 but the learned counsel for the petitioners has argued the whole case on the basis of section 2-A of the Act despite the fact that the petitioner/plaintiffs instituted the suit after insertion of section 2-A in the Act in the year 1983 but did not base their claim on the said section. In this situation, I am of the view that the petitioners were bound to confine their claim to the averments of the plaint and no switch over from section 2 of the Punjab Muslim Personal Law (Shariat) Application (Removal of Doubts) Ordinance, 1972 to section 2-A of the Act was to be allowed especially when section 2-A was already in the field.
15. Now coming to the point of limitation, I have noted that the petitioners challenged the entries in the Revenue Record pertaining to the years prior to 1964 and they have founded their claim on the basis of section 2 of the Punjab Muslim Personal Law (Shariat) Application (Removal of Doubts)
Ordinance, 1972 which was promulgated in the year 1972 and no reasons for such belated delay have been mentioned in the suit filed by them, therefore, the observations of the Courts below, that the suit filed by the petitioners was hopelessly time-barred are not open to exception by this Court in its revisional jurisdiction. While dealing with somewhat similar situation, the Hon'ble Supreme Court in the case of Mst. Fateh Bibi (supra) has held that:- "*** The High Court, therefore, misdirected itself in proceeding on the premises that the dispute between the parties was regarding Shari share of Mst. Fatima Bibi. Limitation would be a hurdle in the plaintiff's way in seeking relief. The plaintiff filed the suit fifty years after the impugned mutation and according to the statement of Mst. Fatima Bibi, she did not claim her share earlier due to her respect for her uncle Bhawala. By her own statement, the plaintiff thus demonstrated that notwithstanding her knowledge of the entries in the mutation she deliberately desisted from claiming her share in the suit property. This can hardly be legal ground for condoning delay. The plaintiff's suit was, therefore, barred by time having been filed fifty years after the cause of action arose to her."
If we consider the case of the petitioners on the basis of the dictum laid down in the aforementioned judgment, the conclusion in affirmative would be that since they are claiming ownership of the J property in dispute on the basis of some enactment in the year 1972, their move for relief on the basis of such enactment in the year 1985 is time-barred.
16. Insofar as the case-law cited by the learned counsel for the petitioners is concerned, it is observed, with due respect to their lordships the Hon'ble Judges of the apex court of the country, that the same are distinguishable for the reason that in none of the cases it was held that despite the dismissal of the suit of their predecessor-in-interest upto the High Court on the same point were held entitled to bring fresh suit on the same cause of action let alone the case of Allah Rakha (supra) which has already been distinguished in the afore-going paragraph. Further, the cases relied upon by the learned counsel for the petitioners relate to section 2-A of the Act, whereas the claim of the petitioners in the suit as well as appeal was in regard to section 2 of the Act, though they were filed after insertion of said section. 2-A, are not of much help to them.
17. Even otherwise, concurrent findings of facts cannot be upset by this court in its revisional jurisdiction in a casual manner rather it has to be proved that the same are perverse or arbitrary or the same are based on misreading or non-reading of evidence. In this regard, reference can safely be made to the case reported as Muhammad Idrees and others v. Muhammad Pervaiz and others (2010 SCMR 5) wherein it has inter alia been held that--- "It is settled proposition of law that each and every case is to be decided on its own peculiar circumstances and facts as law laid down by, this Court in Muhammad Saleem's case 1994 SCMR 2213. It is also settled law that findings on question of fact or law, erroneous the same may be, recorded by the Court of competent jurisdiction, cannot be interfered with by the High Court in exercise of its revisional jurisdiction under section 115, C.P.C. Unless such findings suffer from controversial defects, illegality or material irregularity as law laid down by the Privy Council in Hindu Religious Endowments Board, Madras' case PLD 1949 PC 26. With regard to section 115, C.P. C.
It is observed by the Privy Council as under:
(i) This section empowers the High Court to satisfy itself upon three matters:---
(a) That the order of the subordinate Court is within its jurisdiction.
(b) That the case is one in which the Court ought to exercise jurisdiction.
(c) That in exercising jurisdiction, the Court has not acted illegally, that is in breach of some provision of law, or with material irregularity, that is, by committing some error of procedure in the course of the trial which is material in that it may have affected the ultimate decision. If the High Court is satisfied upon those three matters, it has no power to interfere because it differs, however, profoundly, from the conclusion of the subordinate Court upon questions of fact or law."
18. For what has been discussed above, I am of the view that the petitioners were estopped to file fresh suit on the cause of action on the basis whereof the earlier suit filed by their predecessor-in- interest stood dismissed upto the High Court. Further, the filing of the suit on the basis of an enactment in the year 1972 was time-barred. Moreover, the plaintiffs were not obliged to file a suit especially when according to subsection (2) of section 2 of the West Pakistan Muslim Personal Law (Shariat) Application (Removal of Doubts) Ordinance, 1972, the affected party was given a right to file an application for decision of the cases which were decided earlier afresh. Consequently, I see no force in this petition which is accordingly dismissed with no order as to costs.