1. ' MUHAMMAD AFZAL ZULLAH, J.-Leave to appeal has been sought from judgment dated 13-6-1982 of the Sind High Court whereby a civil revision filed by the petitioner was dismissed.
2. ' Learned counsel for the petitioner while opening his address candidly stated that on merits the petitioner has a weak case but he thought that he has a strong argument on question of law. It is for this very reason that he did not give the details of the facts necessary to decide the petition.
3. Therefore, the statement in that behalf contained in the impugned judgment is reproduced below for purpose of reference :- "The admitted position in the case is that the petitioner who was an employee of respondent 2 was allotted flat No, 9, K. M. C. Flats, Nazreth Road, Karachi, during the course of his employment. The respondent 2 later dismissed the petitioner from service on 25-6-1980 and as a result of dismissal from service, the petitioner was called upon to vacate the flat in his occupation. Before his dismissal from service the petitioner was given a show-cause notice dated 31-5-1979 which was challenged by him in Constitution Petition No, 1631/80 before this Court. However, when comments were called for which were submitted by respondent 2 on 25-6-1980 is transpired that by order dated 25-6-1980 the petitioner was dismissed. The petitioner then amended his above petition and impugned the order of his dismissal in the above petition on several grounds including the ground that his dismissal from service was mala fide and in excess of jurisdiction. It appears that on the hearing of the petition only two grounds were urged by the petitioner namely that the provisions of Sind People's Local Councils Servant (Efficiency and Discipline) Rules, 1974 were not followed and that the order of dismissal was a ma/a fide order. Both these contentions were repelled by the Court and in addtion it was also held that the petitioner being an employee of a statutory corporation was not entitled to maintain a petition under Article 199 of the Constitution. The order dismissing the writ petition of applicant by this Court was challenged before the Supreme Court in petition for leave to appeal bearing No, K-269/80 but leave was refused. It appears that the petitioner while the above proceedings were going on simultaneously preferred an appeal to the Secretary, Local Bodies against the order of his dismissal and also instituted Civil Suit No, 2468/81 challenging the notice issued to him for vacating the premises allotted to him during the course of his employment. It was urged in the suit that until such time his appeal was decided by the Secretary, Local Bodies against the order of his dismissal he is deemed to be in the service of the respondent 2 and therefore not liable to be evicted from flat in his occupation. The appeal filed before the Secretary, Local Bodies against the order of dismissal came to be dismissed on 13-4- 1981 as time-barred. The decision by the Secretary, Local Bodies was then challenged in Petition No, 645/81 before this Court which was dismissed in limine by a Division Bench of this Court on 18-8- 1981 and the decision of Secretary, Local Bodies was upheld. It appears that in the meantime Suit No, 2468/81 filed by the petitioner for permanent injunction was dismissed for default. Mr. Shard, the learned counsel for appellant states that according to his instructions the suit was dismissed as infructuous as it was based on the ground of pendency of the appeal before Secretary, Local Bodies. Be that as it may, the facts remain that dismissal of Suit No, 2468/8', wherein one of the prayers made by the petitioner was with regard to grant of a permanent injunction against the respondent from dispossessing him from the flat except in due process of the law, barred a subsequent suit on the same cause of action. In the subsequent Suit No, 3484/81 instituted by the petitioner before the first Senior Civil Judge, Karachi on 31-8-1981 the following prayers are made :-
(a) That it be declared that the action of the defendant No, 2 dismissing the services of the plaintiff under the direction of defendant No, 3 is mala fide, illegal and is due to the personal grudge of the defendant No, 3 and is not contemplated by the law and rules applicable to the service of the plaintiff and as such the order of dismissal is of no legal effects.
(b) That it be further declared that the plaintiff continues to be in service of the defendants and is entitled to all the benefits and evolution accrued to him from the date of his dismissal till he is re- instated in service.
(c) Give, grant and issue a permanent injunction restraining the defendants, their agents, employees, officers, and/or any other person or persons from evicting the plaintiff from his official accommodation being flat No, 9, K. M. C. Flats Nazreth Road, Guru Mandar, Karachi, by using force excepting in due course of law.
(d) to award cost of the suit ; (e)to grant any other or further relief which this Hon'ble Court may deem fit and proper under the circumstances of the case."
4. ' The Civil Judge while dealing with the application under Order XXXIX, rules 1 & 2 filed by the petitioner in the above noted suit for grant of a temporary injunction held the suit was not maintainable under section 42 of the Specific Relief Act. On appeal the first appellate Court although did not agree with the trial Court regarding maintainability of the suit under section 42 of the Specific Reliefs Act, but held that the suit was barred on principles of res judicata as the questions raised in the suit were substantially the same which were decided by this Court in the Constitutional Petitions filed by the petitioner. The petitioner has challenged the decision of first Appellate Court".
5. ' The learned Judge in the High Court noted another fact and made comments thereon as follows :- "The learned counsel for the petitioner very candidly admitted before me that the petitioner had also filed Suit No, 2462/81 though this fact is neither mentioned in the plaint nor it was considered by the two Courts below, which was dismissed for default. The learned counsel contends that the cause of action on which suit No, 2468/81 was filed was different from the cause of action pleaded in the present suit. However, on reading the two plaints which are available on record I find the prayer regarding grant of perpetual injunction in both the suits are almost identical. In so far the prayers (a) & (b) of the subsequent suit are concerned they raise all those questions which have been decided in the two Constitutional petitions referred earlier by me. In these circumstances although the first Court did not proceed to dismiss the suit on the basis on which the first appellate Court dismissed it under Order VII, rule 11, C. P. C. But I find that no prejudice was caused to the petitioner the ground on which the suit was dismissed is based on facts which were admitted by the parties. I accordingly find no reason to integer with the order passed by the two Courts below and hold that the suit was barred under Order IX, rule 9, C. P. C. As well as on principle of res judicata."
6. ' The learned counsel for the petitioner has not touched the question of the effect of finding by the High Court on the application of the provisions of Order IX, rule 9, C. P. C. ; presumably, because the argument raised by him in connection with other question namely that of res judicata, did not succeed.
7. ' The learned counsel accepted that the two decisions of the High Court in writ jurisdiction and one decision by the Supreme Court in the order refusing leave to appeal, would operate as res judicata in so far as the examination of the merits of the case by the. Civil Court is concerned. But he vehemently argued that in the second decision in writ jurisdiction by the High Court, it had held that the writ petition was not 'competent ; and, notwithstanding this view (on the competency of the writ petition), it had held that the departmental appeal filed by the petitioner was rightly dismissed as time-barred, This decision on question of limitation, by the High Court according to him, was without competency. And that being so the Civil Court was competent to re-examine in the civil suit filed by the petitioner, the question of dismissal of departmental appeal on ground of limitation. He relied upon Muhammad Anwar v. The Chief Settlement and Rehabilitation Commissioner, West Pakistan, Lahore and 3 others and also tried to distinguish the decision by this Court on this and similar questions namely Abdul Majid v. Abdul Ghafoor we do not agree with the learned counsel. The case is fully covered by the rule laid down by this Court in the case of Abdul Majid. It would appear from the discussion at page 149 of the report that almost similar argument having been raised in the said case, the Sam was repelled. It was noted in that case that "the next argument of th learned counsel that the High Court was not competent to deal with the B questions which have been raised in the civil suit, thus its decision thereon would not operate as res judicata also, ignores the reality that the main controversy was competently brought before the High Cotuit in its wry jurisdiction " This argument was also sought to be supported by some of the observations made by this Court in the case of Muhammad Swaleh v. Messrs United Grain and Fodder Agencies . The argument was repelled on various grounds. Some of the observations relevant for this case are re-produced below :- "The reliance of the learned counsel on an observation in the case of Muhammad Swaleh to the effect that even the decisions of the High Court and the Supreme Court could be challenged before a Civil Judge 3rd Class, is misplaced. It is with profound respect pointed out that the remarks in this behalf were of general nature in the field of jurisprudence on the theoretical side. It was observed that when nullity is brought before any Court, it is entitled and also bound to ignore it. It was in this connection that the remark relied upon by the learned counsel was also made. When citing the same it is often ignored that it was not ruled by this Court (in case of Muhammad Swaleh) that in a situation visualised in the remarks, the party seeking the redress would not be entitled to bring the matter before the same Court (in case of Supreme Court by way of review or in other proper proceedings, and in case of High Court before the same Court as aforesaid or before the Supreme Court), and that the same Court would not be competent to deal with it or that the only remedy1 2 3 was by way of a civil suit before a civil Court. These questions did not arise in that case. It is also to be kept in view that although section 44 of the Evidence Act permits a party to a decision, to show that it was obtained by the other party by fraud or collusion or that the Court acted without competence; but it does not lay down a mandate that it must be shown in a separate suit and not by moving the same Court or the appellate Court. Notwithstanding the foregoing comment on this question it is necessary to explain that the High Court or the Supreme Court might itself, in view of peculiar circumstances of a given case, when re-opened before it on any ground which might require further examination in a proper trial by a lower Court, make such observations, as might enable that Court to deal with the relevant questions including that of nullity.
8. ' Before closing the discussion on this question, it needs to be mentioned that resort to fresh litigation in lower forums wherein decisions by' Superior Courts are brought under challenge, depending upon circumstances of each case, might come in conflict with the provisions of the Constitution whereunder certain decisions are binding on all Courts, It might also, again depending upon circumstances of each case, involve the criticism of a decision of one Bench of the same Supreme Court, by another Bench. For example, in this very case, if the arguments advanced before the learned Single Judge in the High Court, would have prevailed, it would have resulted in the criticism of a Division Bench judgment of the same Court, which decided the Letters Patent Appeal in an earlier round of litigation. Such a course, it is obvious, might lead to, if not entirely illegal at least undesirable consequence. At this stage, it would be instructive to reproduce a passage from the judgment of this Court in the case of Mian Jamal Shah v. The Member, Election Commission, Government of Pakistan, Lahore and others.
9. "The learned Judges of the Full Bench next proceeded to consider the contention raised before them that as the Election Commission was constituted of persons having the status of Superior Judges, and as in particular the Member whose order was placed before the Full Bench for judicial review, was himself a Judge of the High Court, no writ could be issued to him. The learned Judges agreed that no writ could issue to a Superior Court, and this is clearly in accordance with the direction derivable from the definitive provision in Article 98, that no order under that Article shall issue to the Supreme Court or a High Court. But they found that the Member was persona designata in the case, and did not act as a Judge of the High Court and relying on two cases from the English jurisdiction in which it was held that certiorari could issue in respect of an order of a High Court Judge acting as a Tribunal, they came to the conclusion that the Member was 'subject to the control of the High Court under Article 98 and is amenable to an order passed by it under that Article", In the two decisions from the English Courts, which have been cited, there was an express provision to the effect that a decision by the Tribunal will not be deemed to be a. Decision by the High Court, but for the interpretation of Article 98, in respect of this question that consideration is not of appreciable weight. The learned Judges were in all probability right in considering the Member to, be persona designata, and not the High Court or a Judge of the High Court, when acting under section 53, but one may be pardoned for referring here to a small observation in one of the judgments cited by the Full Bench with reference to the idea of a Superior Court issuing a writ to itself, viz. "the process involves the rather ludicrous position that Judges are called upon themselves." ' why their orders should not be quashed. In the present case, the order in question is made by a Single Judge of the High Court acting as the relevant authority, but it is conceivable that a statute may appoint a Tribunal of any two or three High Court Judges to adjudicate matters arising thereunder, and then indeed the aspect of 'ludicrousness' might arise if a writ were sought from a Single Judge of the High Court to avoid actions by such Tribunals. In a number of statutes in the United Kingdom express provisions are included which avoid the writ jurisdiction in relation to such adjudications, and it is a matter for consideration whether such provisions should not be made use of in Pakistan as well. Quite apart from the aspect of 'ludicrousness' there are other and more weighty considerations involved, such as the necessity of maintaining a high degree of comity among the Judges of the Superior Courts, which could be urged in support of such a provision."
10. Thus the argument based on the question of competency of the High Court is, on ground of general principles involving ludicrousness as discussed C in the cases of Abdul Majid and. Mian Jamal Shah, fallacious. The reliance of the learned counsel on the observations in the Lahore case of Muhammad Anwar for the same reasons is of no help to the petitioner. With respect the observations in this behalf in the said case do not lay down the correct law.
11. ' There is a further reason for repelling the argument of the learned counsel. Section 9, C. P. C.
12. Provides that the civil Court shall have jurisdiction to try all suits of civil nature "excepting suits of which their cognizance is either expressly or impliedly barred". The ratio underlying the decision in the case of Abdul Majid is law declared. It would thus appear that the suit filed by the petitioner in this case would be barred by section 9, C. P. C.-both expressly and impliedly. When looking at various aspects of the question of res judicata, it is expressly barred, because the Supreme Court has declared it as a law. And impliedly, because even if it had not come strictly within the for corners of the facts of the case of Abdul Majid, the ratio of the said case and the principle discussed therein, would impliedly bar the suit.
13. ' The same would be the effect if we keep in view and apply the principle and the spirit underlying the recent amendment in section 12, C. P. C. Whereunder "when a person challenges the validity of a judgment, decree or order on the plea of fraud, misrepresentation or want of jurisdiction, he shall seek his remedy by making application to the Court which passed the final judgment, decree or order and not by a separate suit". Similar observation was made by this Court in this behalf in the case of Abdul Majid when dealing with the question of remedy for an affected person in circumstances visualised in the amended section 12 of the C. P. C. It was observed additionally in that behalf that :- "Notwithstanding the foregoing comment on this question it is necessary to explain that the High Court or the Supreme Court might itself, in view of peculiar circumstances of a given case, when opened before it on any ground which might require further 'examination in a proper trial by a lower Court, make such observations, as might enable that Court to deal with the relevant questions including that of nullity."
14. ' The above visualized situation would among others, arise when for example a party realizing a difficulty or weakness in its case, does not press the point before the High Court or the Supreme Court and requests for such an observation without obtaining a decision on the relevant point. This might arise amongst other situations, either when withdrawing a matter or when seeking its dismissal, without pressing the same.
15. Before closing this judgment while reiterating the principles laid down in the case of Abdul Majid, it needs to be clarified that depending upon the circumstances of each case ordinarily it would not apply to the observation F or decisions by the Superior Courts in the orders which arise out of proceedings in the nature of interim relief like temporary injunctions. Normally a case does not get decided in such a situation and in most of the cases the facts and circumstances are not fully presented and/or noted Although when deciding the question like an interim injunction observation might be made that the decision thereon would not affect the result on the trial of the suit but even if such an observation is not made, ordinarily the effect would be the same.
16. ' In the light of the above discussion, we approve the approach of the] learned Single Judge in the High Court in dismissing the petitioner's civic revision ; and, accordingly also, the impugned judgment. This petition has' thus no force and is dismissed. PLD 1975 Lab. 1463 PLD 1982 SC 1461 2
…and 8 more citing cases