MUHAMMAD IJAZ KHAN, J.- Through the instant judgement, this Court shall decide this as well as connected CR No. 11-A/2020 titled "Babar Khan vs. Mushtaq Hussain & others" and C.R No. 16- A/2020 titled "Usman Khan & others vs. Ejaz Hussain & others" as all of them have arisen out of the common judgment and decree of learned Additional District Judge-V, Mansehra dated 13.11.2019, whereby, the appeal of respondents/ plaintiffs No. 1 to 7 was accepted and thereby set aside the judgment and decree of Civil Judge-III, Mansehra dated 23.12.2003 who vide the same had dismissed the suit of respondents/ plaintiffs.
2. Precisely, the facts leading to the filing of these petitions are that predecessor in interest of respondents/plaintiffs No. 1 to 7 namely Mushtaq Hussain and Ilyas Hussain brought a suit under three heads; firstly, for declaration to the effect that they are owner in possession of the suit property, detail of which is fully mentioned in the heading of the plaint and that notification No. 12384/Rev-1/175 dated 04.06.1991 is factually incorrect, against the law and thus ineffective upon the rights of the petitioners. It has also been prayed that official respondents may be restrained not to act upon the said notification dated 04.06.1991, secondly, for issuance of permanent injunction to restrain respondent No.3 (Commissioner Hazara Division, Abbottabad) to the effect that he should not confirm the auction carried out on 05.03.1992 and that other defendant No. 1 to 4 and 7 be restrained not to interfere in the property bearing Khasra No. 266, 267 & 268 and thirdly, respondents/plaintiffs have also prayed for recovery of Rs. 50,00,000/-(five million) as compensation. When the aforesaid suit was filed, the petitioners then defendants were summoned and they appeared and contested the suit by filing their written statement, whereby, they raised various legal and factual objections. In view of the divergent pleading of the parties, the learned trial Court framed as many as ten (10) issues and, thereafter, the parties produce their respective evidence and, after hearing the arguments, the learned trial Court dismissed the suit of respondents/plaintiffs vide judgment and decree dated 23.12.2003. The respondents/plaintiffs being aggrieved of the aforesaid judgment and decree initially preferred an appeal before this Court, however, due to amendment in pecuniary jurisdiction of the District Appeal Court the same was remitted to the learned District Judge, Mansehra who entrusted the same to the learned Additional District Judge-V, Mansehra and who vide impugned judgment and decree dated 13.11.2019 accepted the same and thereby decreed the suit of respondents/plaintiffs and as result thereof set aside the judgment and decree of learned trial Court dated 23.12.2003 which judgment and decree has now been challenged by the petitioners then defendants through these revision petitions.
3. Arguments of learned counsel for the parties were heard in considerable detail and the record perused with their able assistance.
4. During the course of arguments, the main emphasis of learned counsel for petitioners/defendants was that the instant suit was not maintainable as the same was hit by principle of res judicata and that the suit was also not maintainable in the present form. As against this, learned counsel representing the respondents/ Plaintiffs stated that the principle of res judicata could not be attracted to the instant suit and that the suit was very much maintainable in the present form.
5. In view of the contention of the learned counsel for both the parties the only question before this Court is that as to whether the instant suit is maintainable when on the same cause of action, the respondents/plaintiffs had earlier exhausted various remedies or not? In order to answer the above question, it would be relevant to highlight the very background of the instant suit which is as under:-
6. It is part of the record that initially the predecessor in interest of respondent No. 1 to 7 namely Mushtaq Hussain and his brother namely Ilyas Hussain had given a piece of land through private negotiations to the Health Department for extension of Tehsil Headquarters Hospital Balakot and in lieu of it they had received a handsome amount of Rs. 37,26,000/- however, later-on it had revealed that it was a Shamilat-e-deh property and that they were not owners of the said property and as such they had illegally and unlawfully received the said amount, therefore, in order to recover the said amount the impugned notice dated 04.06.1991 was issued to them under The West Pakistan Government Dues Recovery Ordinance, 1962 and they then and there opted to challenge the aforesaid notification before this Court through WP No. 83 of 1991 which was decided vide order & judgment dated 02.02.1992 whereby the said writ petition of the respondents/plaintiffs was dismissed with the following observations-cum-findings:- "4. We have gone through the comments of respondents wherein it has been averred that the petitioner and his brother Ilyas Hussain were not lawful owners of the land measuring 13 Kanals 16 Marlas, bearing Khasra No.2573/2. Khata No.1285/2131 of Jamabandi for the year 1966-67 revenue estate Balakot shows that the area and Khasra was `Shamilat-e-Deh'. The father of the petitioner was `Hissadar' in `Khans Kasht' of Khasra No.2573/2 which he transferred as gift in the name of his two sons i.e. Mushtaq Hussain petitioner and Ilyas Hussain in equal share vide Mutation No. 5673 attested on 12-4-1975 which mutation was sub judice in Suit No.60/1 instituted on 12-3-1989, where the petitioner and his brother have made a statement through their counsel that they would not transfer the property through private negotiation. The respondents in their comments have also questioned the price fixed by negotiations and have stated that same is not based on genuine grounds. The petitioner and his brother were not the owners of land measuring 13 Kanals 16 Marlas and their title was under question in the Civil. Court when they negotiated the deal with the acquiring department. Legally where the title is under shadow the party cannot enter into valid transaction. As such the petitioner and his brother by concealing this fact have played fraud and forgery 'by showing themselves to be the absolute owners of the land in question and entering into the negotiations for the sale of it with the respondents.
5. This writ petition came up for hearing before the learned DB on 18-6-1991 and the learned counsel was heard in detail. The comments of respondents Nos.1 and 2 were called for. On 8-12- 1991 the petitioner made a statement in Court that he shall furnish Bank Guarantee in the sum of Rs.37,26,000 the total sum of money received by him and his brother Ilyas Hussain against the disputed transaction so that the writ petition may be admitted for hearing. He further stated that .in case he failed to furnish Bank Guarantee within the time given by the .Court, his writ petition may be dismissed. Consequently he was allowed to do the needful till 30-1-1992 and it was directed that the case be fixed for hearing in the first week of February, 1992. On 26-1-1992 the petitioner preferred an application (C.M. No.21 of 1992) through counsel which was posted for hearing on 28-1-1992. The petitioner requested that he should be permitted to withdraw the writ petition as there are certain defects therein. On the said date notice to respondents was issued for a short date. Today the case was fixed for hearing.
6. After hearing the learned counsel for the petitioner in detail and taking into consideration the available record of the case, we are of the view that the application to withdraw the writ petition is only a device to avoid the compliance of the order dated 8-12-1991 of this Court whereby in view of his statement he was directed to furnish Bank Guarantee in the sum of Rs.37,26,000 by 30th January, 1992. The learned counsel pressed the application for withdrawal of the writ petition which cannot be allowed in view of the unequivocal statement and undertaking of the petitioner that he would furnish Bank Guarantee equivalent to the amount which he and his brother has received with fraudulent means. The petitioner has failed to honour his undertaking by producing the Bank Guarantee within the stipulated period., The petitioner from his conduct appears to be in the habit of flouting and. B defying the Court orders. He did not keep to his words made in the Civil Court in a Civil Suit No. 60/1 and in violation thereto he entered into the transaction and made hay by pocketing Rs.37,26,000 and likewise hereto he attempted to softly back out from the commitment under the guise of application to withdraw the writ petition, for which he cannot be permitted to abuse the, process of the Court and to make mockery of the Court orders time and again. As such this writ petition is dismissed in limine, C.M. No.21/92 being frivolous is dismissed accordingly.
The observation and the findings of this Court in aforesaid writ petition would prima facie show that this Court had considered the grievances of the predecessor-in-interest of the respondents/ plaintiffs qua the impugned notification dated 04.06.1991 with full application of judicial mind and it had been concluded that they were not owners of the acquired land and that when their title was also under challenged in a civil suit then they were not competent to enter into a valid transaction and as such their prayer to struck down the impugned notice dated 04.06.1991 could not be passed in their favour. It is also relevant to mention here that respondents/plaintiffs had also challenged the aforesaid said order of this Court before the Apex Court, however, the Hon'ble Supreme Court did not grant leave to appeal to them and thus the order of this Court had since been attained finality and thus in the given facts and circumstances when once this Court has determined the legality and propriety of the notification dated 04.06.1991 then no other Court including a civil Court could embarked upon the said exercise and if it does then the same would be nullity in the eyes of law.
7. During the course of arguments, learned counsel for the respondents/plaintiffs made much emphasis that in the instant suit they have not only challenged the legality and proprietary of the aforesaid notification dated 04.06.1991 but they have also challenged the auction proceedings which were being carried out in consequence of the aforesaid notification for the recovery of the paid amount and thus if the legality and proprietary of the notification dated 04.06.1991 had already been determined by this Court in the aforesaid WP No. 83 of 1991 even then he could validly challenge the auction proceedings in a Civil suit, however, it is noteworthy that the predecessor-in- interest of respondents/plaintiffs had even challenged the auction proceedings conducted by the Collector Mansehra on 05.03.1992 before the revenue hierarchy, however, their objections qua the legality of auction proceedings were initially dismissed by the Worthy Commissioner Hazara Division vide order dated 28.05.1992 and then the aforesaid order was also challenged before the worthy Senior Member, Board of Revenue Khyber Pakhtunkhwa, Peshawar through a revision petition, however, the same was also dismissed vide order & judgment dated 21.03.1994. It would not be out place to mention herein that for the said auction public notice was published and in response to it as many as sixteen contenders participated and they offered their amount and out of them predecessor-in-interest of petitioner namely Shahzada Hussain and co-petitioner of the connected CR No. 16-A/2020 offered the highest bid and then Sanad-e-Sultain/sale certificate dated 09.06.1992 was issued in their favour and then mutation No. 7858 was also attested on 21.01.2000 in their favour. During the course of arguments the main emphasis of the learned counsel for respondents/plaintiffs was that while conducting auction proceedings the mandatory provisions of section 81, 82, 84 and 94 of The Land Revenue Act, 1967 have not been complied with, therefore, the learned Civil Court was competent to adjudicate upon and decide the fate of auction proceedings, however, such arguments of the learned counsel for respondents/ plaintiffs are not legally sustainable as on the same grounds he had filed their objection petition before The Commissioner Hazara Division, Abbottabad who had considered the same and have discarded the same with detailed reasons as transpires from his order dated 28.05.1992. Similarly, such objections were also agitated before the worthy SMBR and he too with detailed reason had discarded the same and thereafter, the respondents/ plaintiffs have not challenged the said order before any forum, therefore, it has attained finality for all legal and practical purpose. In view of the above, the submissions of the learned council for the respondents/plaintiffs that the legality and propriety of the auction proceedings in consequence of the impugned notice dated 04.06.1991 could be adjudicated upon by the Civil Court is not legally correct.
8. It is also relevant to mention here that the predecessor-in-interest of respondent No. 1 to 7 had obtained a loan from the Agricultural Development Bank, Balakot and in this regard the subject property had also mortgaged with the Bank and when they defaulted in the payment of the loan, recovery suit was brought by the Bank concerned against them which suit was ultimately decreed in favour of the Bank vide judgment dated 24.11.1999. The present petitioners when got knowledge of the aforesaid proceedings, they rushed to the Banking Court and filed objection petition to the effect that they have purchased the property in the auction proceedings carried out in response to the notification dated 04.06.1991 and it was during the pendency of the execution petition when the present petitioners deposited the whole decretal amount and as such the property which was already attached by the Banking Court was detached vide order dated 28.02.2000 and the execution proceedings were consigned to the record room. It is further relevant to mention here that the respondents once again filed an application before the Banking Court for redeeming the said property and for cancellation of the mutation No. 7859 attested on 21.01.2000 in favour of the present petitioners and surprisingly the said application were allowed vide order dated 16.09.2017 by the Banking Court which was challenged by the present petitioners before this Court through FAO No. 10-A of 2017 which came up for hearing on 12.11.2019 and the same was allowed by this Court by setting aside the order and judgment of the Banking Court dated 16.09.2017 being against the law & record and restored the mutation in favour of the present petitioners which fact also shows that respondent No. 1 to 7 have knocked every door before the filing of suit or during the pendency of the said suit.
9. In view of the above admitted position, when the learned counsel for the respondents/ plaintiffs was confronted that he on his own had opted to approach this Court through WP No. 83 of 1991 to seek a declaration regarding legality & proprietary qua the impugned notification dated for 04.06.1991 then whether their suit for the same relief and on the same cause of action was maintainable, however, he could not wriggle out of this legal impediment. Similarly, when he was also confronted that when once respondents/plaintiffs had challenged the legality and proprietary of auction proceedings before the revenue hierarchy and when by then they had agitated all those grounds pertaining to the non-performance of legal formalities as required under section 81, 82, 84 and 94 of The Land Revenue Act, 1967 then whether in the presence of such findings which had also attained finality whether the same grounds could be re-agitated in the present suit, on this score too, he was unable to give any satisfactory answer with the only submission that in the instant suit respondents/plaintiffs have raised some extra objections which were not agitated in the earlier proceedings, however, his these submissions too are not legally sustainable as by now it is settled jurisprudence; firstly, that where a party failed to raise all objections which were available to him at the time of earlier proceedings then such objections or grounds could not be pressed in the subsequent proceedings and secondly, when the law has provided various remedies to a party against any order/action/inaction then it is his choice to elect anyone of them, however, if once a party availed and exhausted anyone of the several remedies then he could not be allowed to avail the other remedy(ies) as the same would squarely hit by the doctrine of constructive res judicata.
In a case[1] the Hon'ble Apex Court has held that when earlier part of the litigation has come to an end and has attained finality between the parties, the questions once decided by the competent Court of law, cannot be re-agitated again by the Appellant. This aspect/issue will act as res judicata against him. Likewise, in a case[2] the Hon'ble Apex Court has held that where multiple remedies were available against any order, judgement and/or decision before different forum then it was the prerogative of the suitor to elect and pursue one out of the several hierarchy or channel of remedies. A suiter having availed and exhausted one of the several hierarchy or channel of remedy, doctrine of constructive res judicata, debared him to adopt one after another hierarchy, course or channel of remedies. In another case[3] it has been held by the Apex Court that where a judgment debtor fails to raise all objections as may be available at the time when execution was resisted by invoking one out of few other available remedies then he is precluded by his conduct to raise any such objection, and all such objections and challenges, if any, will be deemed to have been raised and decided against him. After exhausting one of the remedies against the order, judgment debtor cannot be allowed to go on expedition to venture another remedy for the same malady, which though available was not invoked, a party cannot be given premium to go on venturing one after another remedy. Permitting such course would be nothing but abuse of the process of law and would amount to encourage multiplicity of proceeding, which cannot be approved. Similarly, in a case[4] the Hon'ble Apex Court has held that if High Court has already recorded finding on any issue raised which is again raised in subsequent proceedings and finding of High Court in earlier constitutional petition were not set aside, the subsequent petition on the same issue would be barred on the principle of constructive res judicata. Likewise, this Court in a case[5] has held that an aggrieved person has to elect one of the two remedies i.e. under civil law or general law; after choosing anyone of the two remedies, the other remedy would become completely barred.
10. It is also relevant to mention here that the Apex Court in the recent past has taken serious exception of such conduct of a party where it resorted to one remedy after exhaustion of the other and it has been observed that if any party resort for such practice then not only the party who has resorted the second remedy would liable for the initiation of contempt of Court but even the judge and counsel who has represented him would be liable for the same. In a case[6] the Hon'ble Apex Court as held that if at all there was any legal basis for such an argument, the same ought to have been agitated by the petitioner in the first round of litigation. Once the matter had attained finality and having failed to obtain decision for recall of the order of confiscation of the house in the proceedings that reached up to this Court, the matter came to rest forever. The petitioner thereafter cannot initiate another round of litigation to avoid a penalty which was awarded to him in the earlier round. This would amount to seeking nullification of the decision of this Court.
Similarly, in the case[7] the Hon'ble Supreme Court went to the extent in holding that where an attempt is made in another round of litigation to nullify the decision that had already attained finality then it amounts to committing contempt of the court. It was held that not only the litigant is to be held in contempt but his counsel as well who represented him in such proceedings. Even the judge of the Civil Court who entertained such proceedings in the second round would be held in contempt along with the litigant and his counsel.
11. During the course of arguments learned counsel for the respondents/plaintiffs made reference to other merits of the case, however, when the very suit was neither entertainable nor maintainable then in such eventuality any reference to the evidence of the party would be a futile exercise.
Learned counsel representing the petitioner/defendants also attacked the maintainability of the suit on the ground that the same was not maintainable in the present form as in the plaint, the respondents/plaintiffs have made reference to a fact that the official respondents have initiated the impugned notification with the connivance of certain political persons of the area, however, the respondents/plaintiffs have neither named those persons nor they have been impleaded in the instant suit, therefore, their suit on this ground too was not proceedable.
12. In this case the learned trial Court has dismissed the suit of respondents/plaintiffs whereas the appellate Court has decreed the same, therefore, in such a situation this Court in its revisional jurisdiction has to see that judgement of which court is having legal weightage and they by applying the aforesaid yardstick this Court after analyzing the previous litigations between the parties and going through the law on the subject has come to the conclusion that judgment and decree of the lower appellate Court is not legally correct as well as sustainable, whereas, that of learned trial Court is in accordance with the law on the subject and thus the former needs to be set-aside, whereas, the latter needs to be maintained. In a case[8] the Hon'ble Apex Court has held that:- We have gone through the findings of the High Court and compelled to observe that the High Court while dismissing the revision petition neither did bother to appraise the entire evidence nor appreciate the points of law. In the case in hand, the fora below is at variance in their findings and in such like situation the High Court was supposed to give its findings after appraisal of the entire evidence but unfortunately such exercise has not been done by the High Court. The settled law in this regard is that revisional Court in such like situation has to re-appraise the entire evidence just to determine as to findings of which Court were based on proper appraisal of evidence and appreciation of law. Our this view is fortified by a long chain of judgments of this Court i.e. Madan Gopal and 4 others v. Maran Bepari and 3 others (PLD 1969 SC 617), Alloo v. Sher Khan and others (PLD 1985 SC 382), Abbas Ali Shah and 5 others v. Ghulam Ali and another (2004 SCMR 1342), Abdul Aziz v. Khuda Dad Khan (2004 SCMR 1046), Karim Bakhsh through L.Rs. and others v.
Jindwadda Shah and others (2005 SCMR 1518), Muhammad Din and others v. Mst. Naimat Bibi and others (2006 SCMR 586), Muhammad Hassan v. Khawaja. Khalil ur Rehman (2007 SCMR 576) and Q.B.E. Insurance (International) Ltd. v. Jaffar Flour and Oil Mills Ltd. (2008 SCMR 1037).
13. In view of the above, this and connected revision petitions are allowed and consequently the impugned judgment & decree of the appellate Court dated 13.11.2019 is set aside, whereas, the judgment & decree of the learned trial Court dated 23.12.2003 is restored and maintained and as result thereof the suit of respondents/plaintiffs is dismissed being not maintainable.
1. Quetta Development Authority through Director General vs. Abdul Basit & others (2021 SCMR 1313)
2. Jubilee General Insurance Co. Ltd. Karachi vs. Ravi Steel Company, Lahore (PLD 2020 SC 324)
3. Trading Corporation of Pakistan vs. Devan Sugar Mills Limited and others (PLD 2018 Supreme Court 828)
4. Ghulam Akbar Lang vs. Dewan Ashiq Hussain Bukhari & others (2012 SCMR 366).
5. Mr. Liaq Khan vs. Sarfaraz Jehan (2013 MLD 1449)
6. Muhammad Hashim Baber v/s The State & another (2016 SCMR 1827)
7. Abdul Majid v/s Abbas Hussain Shah (1995 SCMR 429)
8. Mst. Azra Gulzar vs. Muhammad Farooq and others (2022 SCMR 1625)