' MEHMOOD MAQBOOL BAJWA, J. --- Question the legality and validity of judgment and decree drawn gnu 25th of June, 2010 by learned Additional District Judge Bhakkar, Camp at Mankaira, whereby while accepting the appeal preferred by Aman Ullah (now succeeded by respondents) while setting aside the judgment and decree of learned Civil Court at Mankaira, dated 13th of January, 2007, suit instituted by the present petitioners was dismissed.
2. Facts in brief resulting in filing of present revision petition are that present petitioners instituted suit for declaration and perpetual injunction claiming proprietary and possessory rights in respect of land subject-matter of the suit, assailing the vires of mutations No, 539, 541, 542, 543 and 544 attested on 31st of March, 1996 to the extent of predecessor-in-interest of present respondents in which he was shown as owner of the property to the extent of 8/17 share.
3. In the suit, it was the claim of the petitioners that Korra s/o Malook (predecessor-in-interest of the petitioners) was owner of land falling in different khatas (detail of which was given in the heading of the plaint) who sold land measuring 29-Kanals, 19-Marlas in favour of Noor and Meer son of Murad without shamlat rights but in mutation No, 19 sanctioned on 30.03.1913 corresponding share of Shamlat was also mentioned which entry through mutation No, 51, attested on 12th of September, 1918, was corrected but in the revenue record necessary correction could not be made.
Predecessor-in-interest of the petitioners instituted suit for possession against the legal heirs of Noor and Meer in the year 1962 which was dismissed by the learned Civil Court at Bhakhar on 18.11.1963. Matter ultimately went to the Hon'ble Supreme Court of Pakistan which was decided on 3rd of February, 1991 in Civil Appeal No, 242 of 1986 against predecessor of petitioners. Review application bearing No, 24-L of 1991 was filed which was decided on 28th of May, 1995 and while recalling the judgment under review, civil appeal bearing No, 242 of 1986 was allowed granting decree in favour of predecessor-in-interest of the petitioners and Aman Ullah (now represented by respondents).
4. In pursuance of the order referred to, mutations assailed by the petitioners were attested on 31.03.1996. Grievance of the petitioners while instituting the suit for possession, declaration and perpetual injunction was that Aman Ullah (now represented by respondents) had no concern, whatsoever, with the property regarding which mutations assailed were entered and attested in his favour as well as the petitioners are exclusive owner of property being legal heirs of Korra.
Perusal of the contents of the plaint further reveals that the petitioners and their predecessor-in- interest were illiterate while Aman Ullah being educated having friendly relations with their predecessor-in-interest got power-of-attorney to pursue the said round of litigation who while exploiting his position -being attorney got him included as plaintiff in the suit, showing himself to be sharer and got property mutated in the light of the order of the Hontle Supreme Court of Pakistan though he got no right or title in the property.
5. The suit was contested by the predecessor-in- interest of the respondent who questioned the maintainability of the suit inter alia on the ground of estoppel and provision of Section 11 of The Code of Civil Procedure, 1908.
On facts, it was submitted that predecessor of petitioners themselves arrayed him as plaintiff WI 10 in the suit instituted in the year 1962, declaring his entitlement to the extent of 8/17 share and as such mutations assailed were rightly attested in pursuance of order of apex Court made in review petition.
6. After casting issues keeping in view the controversy between the parties, recording pro and contra evidence, hearing the adversaries, learned Trial Court decided the suit in favour of present petitioners through judgment and decree dated 13th of January, 2007.
7. Aggrieved by the said judgment and decree, the predecessor-in-interest of the respondents preferred an appeal, before the learned Additional District Judge Bhakhar camp at Mankaira and while accepting the appeal, learned District Court dismissed the suit on 25th of June, 2010, under challenge before this Court.
8. Assailing the validity of the judgment and decree, learned counsel for the petitioners contended that opinion formulated by the learned Appellate Court is result of misreading and non-reading of evidence. Referring to the statement of Aman Ullah, (DW-1) predecessor-in-interest of the respondents, it was submitted that he himself admitted that he got no property in the village at the time of institution of the suit in the year 1962. Again making reference to his statement, it was argued that he himself admitted that the predecessor-in-interest of the petitioners agreed to transfer the property in his favour due to mutual understanding regarding bearing of expenses of the suit. Submitted that misrepresentation was made by the original respondent to pursue the case and after getting power-of-attorney he fraudulently included him not only in the array of the plaintiffs in the suit but also got the property mutated in his favour to the extent of 8/17 share.
Referring to the contents of the plaint in the suit instituted in the year 1962 and the plaint of the present suit, it was submitted that provisions of Section 11 of The Code of Civil Procedure, 1908, were not attracted to the facts of the case because entitlement of Aman Ullah was not decided by any Court in the earlier round of litigation. Argued that earlier the moot point before the courts up till apex Court was whether Korra alienated the property including part of Shamlaat in favour of Noor and Meer son of Murad but in the suit from which the revision petition has arisen, the grievance of the petitioners is that Aman Ullah who was not owner of the property got the property transferred in his favour to the extent of 8/17.
' Further argued that opinion formulated by learned Appellate Court that the matter cannot be agitated by a separate suit and can only be decided while making the application under Section 47 of The Code of Civil Procedure, 1908, is legally not sustainable in view of law laid down in "Robert Hercules Skinner V. R.M.Skinner and others" (AI R 1937 Lahore 537). Contended that specific stance was taken by the petitioners that Aman Ullah while exploiting his position as attorney of their predecessors defrauded them. In the written statement, contended, that specific defence was taken by Aman Ullah that he was given share of 8/17 in lieu of services rendered by him while pursuing the case on behalf of predecessor of petitioners and bearing the expenses of whole litigation which understanding, even if accepted, is against public policy as envisaged by Section 23 of The Contract Act (IX of 1872) and as such the predecessor-in-interest of respondents on the basis of such understanding got no right in the property. Reliance was placed upon the dictim laid down in "RIAZ AHMED v. Dr. AMTUL HAMEED KOSER and 8 others" (1996 CLC 678).
' Continuing the arguments, it was submitted that any understanding between the parties as alleged by predecessor-in-interest of respondents was just an agreement, creating no right or title in the property except getting the same specifically enforced. Reliance was placed upon "AHMAD NASRULLAH and others v. SHAHADAT ALI and others" (2011 YLR 2302).
' Further submitted that in order to attract the principle of res judicata there must have been determination of moot point on merits agitated by the petitioners in the suit from which present revision petition has arisen but admittedly there was no such adjudication.
' Argued that the conclusion drawn by learned Appellate Court is perverse and arbitrary and as such be set aside.
9. On the other hand, learned counsel for the respondents while defending the impugned judgment and decree submitted that predecessor-in-interest of respondents was cited as plaintiff No, 10 in the earlier round ' of litigation, specifically stating his entitlement to the extent of 8/17 share and the decree was granted by the Apex Court in favour of all the plaintiffs in the earlier suit, therefore, right of predecessor-in-interest of respondents was also finally adjudicated upon in view of order dated 28th of May, 1995 and the mutations assailed were attested in pursuance of said order. Contended that when the predecessor-in-interest of petitioners in para (11) of the plaint (in earlier round of litigation) admitted that Amanullah (predecessor-in-interest of respondents) have purchased share to the extent of 8/17 share, how the petitioners later on can take stand against its own pleadings.
' Argued that law does not permit the party to approbate and reprobate simultaneously. Reliance was placed upon "A.R. KHAN v. P.N. BORGA THROUGH LEGAL HEIR" (PLD 1987 SC 107).
10. Replying the argument with reference to the applicability of Section 23 of The Contract Act, 1872, it was submitted that such type of contract cannot be said to be against public policy straightway and has to be examined on the touchstone of reasonableness and conscionable. Reliance was placed upon "Mst. NARGIS KHALIDA alias KHALIDA NARGIS V. BASHIR AHMAD and 6 others" (2008 MLD 265)
' Continuing the arguments, it was submitted that entitlement of Amanullah (predecessor-in- interest of the respondents) has been finally settled by Honourable Supreme Court and as such matter attained finality..
' Referring to the order dated 07.04.2010 made by Honourable Supreme Court of Pakistan in Civil Petition No, 1825-L of 2005 arising from the order dated 07.04.2004 passed by Civil Court, Mankera, accepting the application for temporary injunction arising out of the suit instituted by the petitioners, it was contended that the apex Court clearly held that controversy between the parties has been finally settled through order dated 28.05.1995 made in Civil Review Petition No, 24-L of 1991.
' Lastly submitted that the conclusion drawn by learned Appellate Court is based on correct exposition of law and as such has to be respected. Reliance was placed upon "MUHAMMAD HAFEEZ and another V. DISTRICT JUDGE, KARACHI EAST and another" (2008 SCMR 398),
11. Conscious consideration has been given to the arguments advanced with reference to case-law cited at bar keeping in view the material available on record.
12. There are certain facts which are not disputed. Satara etc. (predecessor-in-interest of present petitioners and successor-in-interest of Korra) remained un-successful to get the relief of possession of land comprising Shamilat Deh as civil suit No, 148 of 1962 was dismissed by civil Court at Bhakker on 18.11.1963.
' It is also an admitted fact that matter ultimately went to the Honourable Supreme Court. Though Civil Appeal No, 242 of 1986 preferred by Satara etc. Was dismissed but Civil Review Petition No, 24- L of 1991 was allowed on 28th of May, 1995 and suit instituted claiming share of Shamlat pertaining to khata Nos. 5, 20 and 22 was decreed.
' Perusal of the copy of plaint reveals that Amanullah was cited as plaintiff No, 10 and according to para (11) of the plaint, he purchased share of land measuring 8/17 from rest of the plaintiffs (Satara etc.) and as such was cited as plaintiff.
' It is also not disputed that execution petition was filed by Imam Bakhsh etc. (Petitioners and their predecessor) on 12.07.1995, also impleading Amanullah as one of the decree-holders and order of Honourable Supreme Court dated 28th of May, 1995 made in Review Petition was implemented and execution petition was consigned on 25th of April, 1996.
' Record further reveals that Imam Bakhsh etc. (predecessor of petitioners) and Amanullah instituted suits for recovery of "Hissa Padawar" in the year 1996 against Fateh Mai etc., Shada and Haq Nawaz which were decided on 25th of April, 1998 by Collector Mankera. Copies of orders are Ex.D9 to Ex.D11.
' Reference of above clearly demonstrates that Amanullah remained associated in all the proceedings with petitioners (and their predecessor) as a friend claiming interest in the property which was never objected to.
13. Learned Appellate Court accepted the appeal of predecessor of respondents while applying the principle of "res judicata".
14. As referred in para (11) of the judgment, Amanullah, was cited as one of the plaintiffs- appellantspetitioners before different forums in earlier round of litigation initiated by Sattara etc. Against legal heirs of Noor and Meer.
15. Doctrine of res judicata is applicable not only between parties on opposite side but also between parties on the same side i,e, co-plaintiffs and co-defendants.
' Matter was examined in "Munni Bibi and another v. Tirloki Nath and others" (AIR 1931 Privy Council 114), "Kishun Parsed Panday and others v. Durga Parsad Thakur and others" (AIR 1931 P.C. 231), "Maung Sein Doriq v. Ma pan Nyun and others" (AIR 1932 P.C. 161) "Chandu La! Agarwala and another v. Khalil-ur-Rehman and others" (AIR 1950 P.C. 17 PLD 1949 P.C. 239), "Syed Muhammad Saadat Ali Khan v. Mirza Wiquar All Beg and others" (AIR 1943 P.C. 115), "ALLAH BAKHSH v. TAGGIA, Plaintiff and another" (PLD 1953 Lahore 1991), "FAZAL DAD and others v. AHMED ALl and others" (PLD 1960 Lahore 106), "GHULAM NABI and others v. Seth MUHAMMAD YAQOOB and others" (PLD 1983 SC 344), and "HABIBULLAH JAN and 3 others v. MUHAMMAD HASSAN KHAN and 6 others" (PLD 1991 SC 93) and following pre-requisite conditions were highlighted to attract the principle.
(1) There must be conflict of interest between such co-plaintiffs or defendants in the earlier suit;
(2) Decision on conflict of interest is necessary in order to grant relief to the parties on the same side;
(3) Conflict of interest must have been finally decided.
' It was further resolved that in order to determine what was necessary to decide, it is the ultimate decision which has to be looked into and the findings necessary to support the judgment.
16. Keeping in view the requisite conditions, arguments advanced with reference to material available are to be appreciated.
' As referred earlier, respondent Amanullah was cited as plaintiff No, 10 in earlier round of litigation instituted by Sattara etc. Against Haq Nawaz etc. (successor of Noor etc.) who purchased the property from Kaurra (predecessor-in-interest of petitioners). It is an admitted fact that in the said suit, entitlement of Haq Nawaz etc. To get Shamlat rights in respect of khata Nos. 5, 20 and 22 was moot point which though was decided against Sattara etc. But ultimately their claim was endorsed by apex Court while deciding review petition.
' While in the present round of litigation fact in issue is entitlement of original respondent to get the property of "Kaurra" to the extent of 8/17 which according to para (11) of plaint of earlier suit was purchased by him.
' In view of the matter, there can be no two opinions that matter directly and substantially in both the suits was distinct.
"Conflict of interest" is most important and vital ingredient to apply principle of res judicata.
Keeping in view the contents of plaint of earlier suit, it can also be said without any fear of contradiction that Sattara etc. (successor of Kaura) got no adverse interest against respondent Amanullah.
' Rather they all were claiming their entitlement with one voice. Though bases of entitlement of respondent (deceased) was different but the relief sought for was one and the same and as such there was no conflict of interest.
' Since there was no conflict of interest, therefore, question of decision of "conflict of interest" does not arise at all.
' In view of above state of facts and law, I find myself in agreement with the contention of learned counsel for the petitioners that doctrine of "Res judicata" was not attracted to the facts of the case.
17. However, matter does not end here. As referred earlier, reasons to implead respondent (Amanullah) in the earlier suit as plaintiff No, 10 was highlighted in para (11) of the plaint.
' It is the case of petitioners that respondent exploited trust which was upon him. Further it is the case of petitioners that their predecessors-in-interest were illiterate and respondent was appointed "Special attorney" to pursue the first case who being literate got his name arrayed as plaintiff in the said suit.
' Muhammad Ramzan, one of the petitioner as (PW-1) deposed that their predecessors appointed Amanullah as their general attorney to pursue the case having good relations with him. His statement referred above was questioned in cross-examination.
' The original respondent while appearing as (DW-1) denied his status as attorney of predecessor- in-interest of petitioners.
' The petitioners in the circumstances failed to prove their stance as bald statement would not be sufficient to prove the same.
' Even otherwise, perusal of certified copy of plaint of first suit, particularly last page reveals that respondent Amanullah did not sign the said plaint as attorney of Sattara etc. And it contains thumb impressions of Sattara, Allah Diwaya, Muhammad Bakhsh, Bacca, Muhammad Nawaz and others including Amanullah as plaintiffs.
18. Predecessor of respondents remained associated with predecessor of petitioners claiming common interest up till Honourable Supreme Court of Pakistan. He was also cited as petitioner in the review petition. In the circumstances, it does not appeal to reason that he exploited the predecessor of petitioners being illiterate in all forums and that too for years to years.
' It is also an admitted fact that after favourable decision in favour of predecessor-in-interest of petitioners in review petition on 28th of May, 1995, execution petition was filed and decree of Apex Court was implemented in favour of Amanullah as well according to the share mentioned in para
(11) of the plaint.
' It is also not disputed that Amanullah and Imam Bakhsh etc. (petitioners) filed suit against Fateh Mai etc. Claiming "Hissa Padawar" which devolved upon them in pursuance of decision of Honourable Supreme Court in which decree was granted in their favour on 25th of April, 1998 by Collector Mankera, as is evident from copy of order (Ex.D9). Copies of orders of even date (Ex.D10-11) also suggest that suits for recovery of "Hissa Padawar" instituted by Amanullah and petitioners were also succeeded against Shade and Haq Nawaz.
' Reference of above-stated admitted facts clearly negates the assertion of the petitioners.
19. Referring to the written statement, it was argued that respondent Amanullah took the plea that he was held entitled to the extent of 8/17 share in view of incurring expenses on litigation in first round but such agreement, if any, is against the spirit of Section 23 of The Contract Act (IX of 1872).
Reliance was placed upon "RIAZ AHMAD v. Dr. AMTUL HAMEED KOSER and 8 others"(1996 CLC 678).
' Factual position explained is not a moot point.
' Section 23 of The Contract Act (IX of 1872) (hereinafter called The Act) does not declare every agreement to finance litigation against public policy. Only such agreement shall be declared against public policy if can be termed as "champertous".
' While determining legal status of such agreements, same are required to be examined carefully and if found unconscionable, unjust or inequitable, oppressive or leading to vexatious litigation, the same can be held to be illegal being against public policy.
' I have gone through rule of law expounded in the Report cited at bar by learned counsel for the petitioners. Ratio expounded in it with reference to moot point does not suggest that such type of all agreements is against public policy. Perusal of the facts reveals that agreement was struck down being extortionate.
' Amanullah while appearing as (DW-1) categorically stated that legal-heirs of "Kaura" instituted suit for Shamlat in the year 1962 and the said legal heirs agreed to give him 8/17 share on the condition to finance litigation. He further deposed that he bore the expenses of whole litigation till final result which part of deposition was not questioned in cross-examination.
' It is an admitted fact that litigation started in the year 1962 and terminated on 28th of May, 1995 when Review Petition No, 24-L of 1991 was decided. Predecessor of respondents as such looked- after litigation and incurred expenses for more than 30 years and as such agreement granting him share implemented in the revenue record cannot be said to be either unjust or inequitable or for improper object. In the circumstances, such agreement has to be endorsed. Reference may be made to "Mst. NARGIS KHALIDA alias KHALIDA NARGIS v. BASHIR AHMAD and 6 others" (2008 MLD 265).
20. Plea of estopel was specifically agitated by original respondent and issue was accordingly framed. Estoppel is a bar or impediment which precludes denial of a certain fact or state of facts because of that individual's previous conduct. It prevents a suitor to raise inconsistent things in successive action. A party cannot be permitted to contradict its earlier stand unless able to suggest that earlier version was result of misunderstanding or was due to actual or constructive fraudulent act of adversary.
21. Contents of para (11) of the plaint of the suit instituted in the year 1962 against legal heirs of Noor etc., justifying the association of Amanullah in the suit duly signed by predecessor of petitioners uptill Honourable Supreme Court of Pakistan, filing of execution petition including Amanullah as one of the decree-holders, implementation of order of apex Court in revenue record without any objection (though alleged but could not be established), commencement of litigaton by petitioners and Amanuliah jointly against Fateh Mai etc. Shada and Haq Nawaz claiming "Hissa Padawar" being joint owners, silence on the part of the petitioners to question the entitlement of predecessor of respondents till 4th of March, 2003 (date of institution of suit) though execution process was complete on 25th of April, 1996 are sufficient to create estoppel against the petitioners.
22. Even otherwise, after decision of apex Court, it will not be well within domain of petitioners to question entitlement of Amanullah. He alongwith predecessor of petitioners was appellant in Civil Appeal No, 242 of 1986. After dismissal of said appeal, when Civil Review Petition (No,24-L of 1991) was filed, Amanullah (predecessor of respondents) was also one of the petitioners and attempt remained successful as relief sought for was awarded keeping in view the prayer clause of the suit, giving declaration in favour of Amanullah to the extent of share mentioned in para (11) of the plaint.
In view of the matter, eligibility and entitlement of predecessor-in-interest of petitioners as well as that of father of respondents (Amanullah) was finally decided. With this background, no Court including this Court can give findings contrary to what was held by apex Court while deciding review petition. Any such decision will be against the "Judicial Dignity" which is not permissible under the command of The Constitution of the Islamic Republic of Pakistan, 1973. Reference may be made to 'ABDUL MAJEED and others v. ABDUL GHAFOOR KHAN and others" (PLD 1982 SC 146), "ASIF JAH SIDDIQUI v. GOVERNMENT OF SINDH and others" (PLD 1983 SC 46) and "MUHAMMAD AJMAL KHAN v. LT. Col. MUHAMMAD SHAFAAT AND 40 OTHERS" (PLD 1976 Lahore 396).
23. The Honourable Supreme Court of Pakistan while deciding Civil Petition No, 1825-L of 2005 and dealing with the matter arising out of proceedings in the suit from which the present revision petition has arisen also dealt with the principle of "Judicial Dignity" specifically taking note of re- agitating the matter despite final adjudication by apex Court in Civil Review Petition No, A L of 1991.
24. In view of the matter, doctrine of "Judicial Dignity" is another ground to non-suit the petitioners.
25. Epitome of above discussion is that Revision Petition being devoid of force is dismissed.
26. Costs shall follow the event. Civil revision .