SHAFT-UR-REHMAN., J.-This appeal under Article 203-C of the Constitution (as introduced by President's Order No. 3 of 1979, Constitution Amendment Order, 1979) is directed against a decision of the Shariat Bench of the High Court, Sind dismissing in limine on 15-12-1979 a Petition filed by the appellant.
2. The appellant by his Shariat Petition sought a decision on the following two questions; "(a) Whether or not the judicial/judiciary usage relating to the doctrine of ]aches and the consequential philosophy of res judicata are repugnant to and inconsistent with Islam ;
(b) Strike down the judicial usage known as doctrine of laches being repugnant to, in negation of and inconsistent with the injunction of Islam."
3. The Shariat Bench of the Sind High Court dismissed the petition with the following short order; "According to Article 203-B of the Constitution as to be found in the Explanation, protection has been given to certain specified laws for a period of three years.
The laws, which have been challenged, relate to the procedure of the Court.
Under the circumstances, the petition does not lie, and stands dismissed in limine."
This appeal has a factual background which must be narrated in brief with a view to make the grievance of the appellant intelligible. The appellant joined as a clerk in the Government of India (General Head--quarters) on 6-3-1945. On Partition he opted for Pakistan and was posted as `B'
Grade Clerk in the Naval Headquarters, Karachi. In the year 1952 he was approved for Promotion as Assistant by the Departmental Promotion Committee with effect from that date. He retired from service in the normal course in 1972. While in service he had claimed the benefit of rule 8(a) of the General (Non-Gazetted) Civil Service (Revision of Pay) Rules, 1949. His claim was that be was entitled to promotion as an Assistant and under rule 8(a) his salary was to be fixed in the pay scale of the Assistant with effect from 1-1-1949 notwithstanding that he was holding the post of `A' Grade Clerk. His representations to the Department met with no success.
5. In 1962, he invoked the Constitutional jurisdiction of the High Court of West Pakistan, Karachi for' recognition and enforcement of his claim to the salary. The Constitutional petition was dismissed by a Division Bench on 23-9-1964. His appeal to this Court was dismissed on 11-7-1967 on the ground that interference in 1967 with the Government orders passed in 1944 and 1954 will seriously upset the arrangements made in the intervening long period of time and the disturbances so created may not be reparable. An observation was, however, made that "it will be open to the Government to reconsider the case of the appellant in the light of the interpretations given by the Court."
6. On 9-10-1967, the appellant filed a review petition which was dismissed on 2-2-1968 with the observation that the interpretation of rules having been given "it only remains for the authorities to carry out the intention of the Court's observation".
7. Apart from moving the Departmental Authorities for redress, the appellant filed a Miscellaneous Petition on 15-11-1968 relying on Article -64 of the Constitution of 1962, for a direction to the authorities to implement the observations made by this Court in the judgment on appeal and on review. This petition was dismissed by the High Court with the observation that he should approach the proper appellate authority and if he fails to get any relief from that authority, then, if he is so advised, he may take appropriate steps to challenge the correctness of the order of that authority in competent Court.
8. The appellant thereafter diligently pursued the Departmental reliefs and sought redress from, amongst others, the vigilance section of the Ministry of Defence. On being unsuccessful he filed a Constitution Petition in 1971 reiterating his claim that under Central (Non-Gazetted) Civil Services (Revision of Pay) Rules,.1949 he was entitled to promotion as Assistant with effect from 1-1-1949 and his salary was to be re-fixed from that date in the pay scale of an Assistant. It was pleaded that a fresh cause of action bad arisen since the decision was given in the earlier Constitutional petition and the appeal and review arising therefrom. This Constitutional Petition was allowed by the High Court of Sind on 2-6-1972 holding that a fresh cause of action had accrued to the appellant and the necessary relief was afforded to the appellant. The Government of Pakistan preferred an appeal in the Supreme Court in which a decision was given by majority. The appeal was accepted and it was held that the claim made by the appellant was barred by laches and res judicata.
9. Having thus failed in the Constitutional jurisdiction the appellant sought to challenge the very legality and enforceability of the principle of laches and res judicata in judicial proceedings in this country on the plane of their being repugnant to the Injunctions of Islam.
10. From the petition and the arguments addressed by the learned counsel for the appellant the line of attack appears to be two-fold. !n the first place it is contended that the doctrine of laches and res judicata are not relatable to procedure of the Court but relate to substantive law of the land and fall within the inclusive clause of "custom and usage having the force of law". Laches in particular, it is said, is a part of judicial usage enforced and applied by Courts of equity. The second line of attack is that according to the Injunctions of Islam and the Sunnah of the Holy Prophet, the liabilities, the debts and the disabilities do not get discharged or effected simply by passage of tune, by delay in preferring claim or by lack of vigilance in pursuit or by decisions rendered earlier.
As a matter of fact, according to the petitioner, the debts, the liabilities and the disabilities continue to exist. It is unconditionally the duty of those responsible to discharge their debt, and the liability to perform their duty in accordance with the trust and the Courts cannot, on any principle, relieve them of their obligations. This is more true of the obligation of the master towards his servant, in respect of dues incurred for services rendered and duties performed.
11. The learned counsel for the respondent, on the other hand, contended that the appellant has not failed on the merits of his claim but on account of the bar to the very jurisdiction of the Court on such petitions. Law has been so defined in Explanation to Article 203-B of the Constitution which confers jurisdiction on the Courts in this respect as to exclude inter alia, "any law relating to the procedure of any Court or tribunal." The High Court has held that the law of laches and res judicata which the petitioner wanted to challenge was a part of the law relating to the procedure of the Court and as such immune from attack in such proceedings. According to the learned counsel the expression "custom or usage having the force of law" is a generic expression and from it stand excluded the specie or a smaller category of inter alia "any law relating to the procedure of any Court". Thus, according to the learned counsel on express words of the law the exclusion is obvious.
15. An altogether new jurisdiction was conferred on the High Courts and the Supreme Court by President's Order No. 3 of 1979 enforced on 12th day of Rabi-ul-Awal 1399 Hijri, that is, the tenth day of February 1979. Articles 203-A to 203-E were added by a new Chapter 3-A of the Constitution dealing with "Shariat Benches of superior Courts". By Articles 203-A the provisions of this Chapter were given effect "notwithstanding anything contained in the Constitution" Article 203-B which conferred jurisdiction on High Court is important for the purposes of this petition and is reproduced hereunder in extenso: "203-B. Conferment of jurisdiction on High Court.-(1) A High Court may, on the petition of a citizen of Pakistan or the Federal Government or a Provincial Government, examine and decide the question whether or not any law or provision of law is repugnant to the Injunctions of Islam as laid down in the Holy Qur'an and the Sunnah of the Holy Prophet, hereafter in this Chapter referred to as the Injunctions of Islam.
Explanation.-In this Chapter, "law" includes any custom or usage --having the force of law but does not include the Constitution, Muslim Personal law, any law relating to the procedure of any Court or tribunal or, until the expiration of three years from the commence--ment of this Chapter, any fiscal law, or any law relating to the collection of taxes and fees or banking or insurance practice and procedure.
(2) If the High Court decides that any law or provision of law is repugnant to the Injunctions of Islam, it shall set out in its decision-
(a) The reasons for its holding that opinion ; and
(6) The extent to which such law or provision is so repugnant ; and specify the day on which the decision shall take effect.
(3) Every decision of the High Court shall be published in the official Gazette.
(4) If any law or provision of law is held by the High Court to be repugnant to the Injunctions of Islam,-
(a) the President in the case of a law with respect to a matter in the Federal Legislative list or the Concurrent Legislative List, or the Governor in the case of a law with respect to a matter not enumerated in either of those Lists, shall take steps to amend the law so as to bring such law or provision into conformity with the Injunctions of Islam ; and
(b) Such law or provision shall to the extent to which it is held to be so repugnant, cease to have effect on the day on which the decision of the High Court takes effect.
(5) A party to any proceedings before the High Court under clause (1) may be represented by a legal practitioner who is a Muslim who has been enrolled as an Advocate of a High Court for a period of not less than five years or as an Advocate of the Supreme Court or by a juris-consult selected by the party from out of a panel of juris-consults maintained by the High Court for the purpose.
(6) For being eligible to have his name borne on the panel of juris-consults referred to in clause (5), a person shall be an aalim who, in the opinion of the High Court, is well versed in Shariat.
(7) A legal practitioner or jurisconsult representing a party before the High Court shall not plead for the party but shall state, expound and interpret the Injunctions of Islam relevant to the proceedings so far as may be known to him and submit to the Court a written statement of his interpretation of such Injunction of Islam.
(8) The High Court may invite any person in Pakistan or abroad whom the High Court considers to be well-versed in Islamic law to appear before it and render such assistance as may be required of him.
(9) No court-fee shall be payable in respect of any petition or application made to a High Court under this Article.
(10) For the purpose of the exercise of the jurisdiction conferred by this Article, there shall be constituted in each High Court a Bench consisting of three Muslim Judges of the High Court, to be called the Shariat Bench ; and reference in the preceding clan-s to the High Court shall he construed as a reference to the Shariat Bench"
Article 203-C provides for an appeal to the Shariat Appellate Bench of the Supreme Court, Article 203-D enables the pending proceedings to continue. Article 203-E empowers the Supreme Court to make rules.
13. Coming back to Article 203-B which confers jurisdiction, which defines the limits thereof and which prescribes exclusions thereto, we find that it provides an inclusive definition of law. On the force of that definition itself any usage having the force of law shall qualify as law. Such a usage may relate to the nation or group as a whole or may relate to practice and procedure of the Court.
The former has been included in the definition of law but the latter has been expressly excluded by providing that law includes any custom or usage having the force of law but does not include "any law relating to the procedure of any Court of tribunal". Law here does not mean only the enacted law but includes usage having the force of law. Such usage or law may relate to procedure of Court or to matters not expressly excluded from the jurisdiction of the A Court. If usage or law does not relate to matters excluded from jurisdiction, a petition attacking it would be competent. On the other band, if it concerns any of the matters excluded then it would be incompetent.
14. By the impugned order the Shariat Bench of the High Court has held that the laws which have been challenged by the appellant relate to the procedure of Court hence are excluded from the jurisdiction of the Court. The appellant disputes this finding.
15. Taking up the principle of res judicata first, we find that it has been given ~a statutory form in section 11 of the Civil Procedure Code. On is therefore justified in concluding, by way of first impression, that it is more 8 a matter of procedure of Court then anything else. Ire the case o Sheoparasan Singh and others v. Ramnandan Prasad NarayaK Singh an others (1), Sir Lawrence Jenkins while delivering the judgment of the Board observed; "Their Lordships desire to emphasize that the rule of res judicatn, while founded on ancient precedent, is dictated by a wisdom which is for all time. "It hath been well said," "declared Lord Coke, interest republicae ut sit finis lithrm-otherwise great oppression might be done under colour and pretence of law" (6 Coke-9a).
16. In the case of Kalipade de and others v. Dwijapada Das and others (2), it was held that the terms of section 1 I are not exhaustive.
17. Res judicara, it is observed in Corpus Juris Secundum "is a rule of universal law pervading every well-regulated system of jurisprudence, and is put upon two grounds, embodied in various maxims of the common law; the one of public policy and necessity, which makes it in the interest of the State that there should be an end to litigation-interest republicae ut sitfinis litium ; the other, the hardship on the individual that he should be vexed twice for the same cause".
18. Res judicata is a part and a form of estoppel-estoppel by matter of record or quasi of record: "Estoppel of record or quasi of record, also known as estoppel per rem judicatam, arises (1) where an issue of fact has been judicially determined in a final manner between the parties by a tribunal having jurisdiction, concurrent or exclusive, in the matter and the same issue comes directly in question in subsequent proceedings between the same parties (this is sometimes known as cause of action estoppel) ; (2) where the first determination was by a Court having exclusive jurisdic-- tion, and the same issue comes incidentally in question in subsequent proceedings between the same parties this is sometimes known as issue estoppel; (3) in some cases where an issue of fact affecting the status of a person or thing has been necessarily determined in a final manner as a substantive part of a judgment in rem of a tribunal having jurisdiction to determine that status, and the same issue comes directly in question in subsequent civil or criminal proceedings between any parties whatever.
Where the earlier decision is that of a Court of record the resulting estoppel is said to be `of record' : where it is that of any other tribunal, whether constituted by agreement of the parties or otherwise, the estoppel is said to be "quasi of record". The fact that the estoppel of record or quasi of record arising." (Hale., 4th Edn., Vol. 16, para. 1503).
Estoppel is a rule of evidence, which in turn is one of Procedure (Monir, Principles and Digest of the Law of Evidence Vol. 1, page 6).
19. In enacting statute of limitation the Legislature specifies fixed periods after which claims are barred. This Court has already held in case of S. M. Junaid v. President of Pakistan (3), that law of limitation is procedural and as such protected from attack under Article 203-B. In case of discretionary orders e.g Specific Performance Permanent or temporary injunctions, declarations under Article 199 of the Constitution the principle of laches is attracted. Laches is an old French word for slackness . Or
(1) AIR 1916 PC78(2) AIR 1930PC22 (3)PLD1981SG12 negligence or not doing. "In determining whether there has been such delay as to amount to laches, the Chief points to be considered _are (1) acquiescence on the plaintiff's part, and (2) any change of position that has occurred on the defendant's part. Acquiescence in this sense does not mean standing by while the violation of a right is in progress, but assent after the violation has been completed and the plaintiff has become aware of it. It is unjust to give the plaintiff a remedy where, by his conduct, he has done that, which might fairly be regarded as equivalent to a waiver of it; or where by his conduct and neglect, though' not waiving the remedy, he has put the other party in a position in which it would not be reasonable to place him if the remedy were afterwards to be asserted. In such cases lapse of time and delay are most material. Upon these considera-- tions rests the doctrine of ]aches". (Halsbury's Law of England, 4th Edn., Vol. 16, para. 1477).
20. In the Corpus Juris Secundum, Vol. 30, `]aches' has been dealt with as under "It has been said that the essence of laches is estoppel, that laches is a species of estoppel, that laches is in the nature of an estoppel, and that the elements of laches are short of estoppel. However, ]aches and estoppl are not equivalent conceptions; they are governed by different rules, the rules governing estoppel being more clearly defined and less flexibly applied than those governing laches. The doctrine of laches has existed since the beginning of equity jurisdic--tion. Its existence is independent of status of limitation. The doctrine of laches is based. On the injustice that might result from the enforcement of long neglected rights, the difficulty, if not the impossibility, of ascertaining the truth of the matters in controversy and doing justice between the parties, and on grounds of public policy, its aim being 'the discouragement, for the peace and repose of society, of stale and antiquated demands. Laches is based on the maxims, Nothing can call equity into activity but conscience, good faith, and diligence, Equity aids the vigilant, not those who slumber on their rights. He who seeks equity must do equity, and he who comes into equity must come with clean hands."
21. The Courts of equity in England, and all the courts in this country have,while deciding upon discretionary relicts, recognized, applied and enforced as a measure of there practice and procedure the principles of laches. One of the earlier repositions of the doctrine and its place in the judicial process finds .Mention in Lindscy Petroleum Company v. Hurd(1873-74) 5 L R 221 (239)in the following words; "Now the doctrine of laches in Courts of Equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps rot waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases. Lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances, always important in such cases, are, the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy."
These remarks were quoted in Eblangor v. New Sombrero Phosphate Company (1), concluding as follows :- "I have looked in vain for any authority which gives a more distinct and definite rule than this; and I think, from the nature of the inquiry, it must always be a question of more or less, depending on the degree of diligence on which might reasonably be required, and the degree of change which has occurred, whether the balance of justice or injustice is in favour of granting the remedy or withholding it. The determination of such a question must largely depend on the turn of mind of those who have to decide, and must therefore be subject to uncertainty; but that, I think, is inherent in the nature of the inquiry."
The bar of laches was recognized and given full effect in The Chairman, District Screening Committee, Lahore and another v. Sharif Ahmad Hashm I (2).
22. It will thus be clear from the above discussion that both, principles of res judicata and laches, relate to the procedure of the Court. Even if these be treated as usage having the force of law, being concernwith the procedure of the Court, the challenge to them is barred, because such a procedural law has been expressly excluded from the definition of law itself. This appeal, therefore, fails and is dismissed with no order as to costs.
KARAM ELAHE13 CHAUHAN, J.--I agree.
MUHAMMAD AFZAL ZULLAH, J.-I agree.
(1) (1873) 3 L R A C 1218 (1279) (2) PLD 1976 SC 258