' The facts and the circumstances in which the petitioner has invoked the constitutional jurisdiction, briefly stated, are that on 10-9-1970 a suit for possession through pre-emption was filed by the petitioner in the Court of Senior Civil Judge, Gujranwala to pre-empt the sale of land made by one Mst. Mahfoozan, widow of Abdul Rashid to respondents Nos.1 and 2. These respondents sold away a part of the land in question in favour of respondents Nos. 3 to 6. One Mst. Sarwari Begum also filed a suit for possession through pre-emption to pre-empt the same transaction. Both the suits were consolidated and rival pre-emptor was impleaded as defendant in each suit. The trial Court framed consolidated issues on 13-10-1973 and fixed the case for evidence of Mst. Sarwari Begum for 23rd of February, 1974. In the meanwhile Mst. Sarwari Begum died and her legal representatives were impleaded as plaintiffs in her place in their own suit and as defendants in the suit filed by the petitioner. Ultimately, 10th June, 1976 was fixed for evidence of Noor Muhammad petitioner. On this date an objection was taken that since the petitioner had not filed a list of witnesses as required by Order XVI, rule 1, C.P.C. he stands precluded from producing any evidence. The learned trial Court adjourned the suit for arguments on the aforenoted objection for 5th of October, 1976 and on this date the learned trial Court held that Noor Muhammad petitioner stands debarred from producing any witness. This order was challenged in the revision and the same had not yet been decided when legal representatives of Mst. Sarwari Begum the rival pre-emptor made an application on 2- 3-1977 seeking withdrawal of their suit. The revision was then dismissed on 16-3-1978 by the learned Additional District Judge, Gujranwala and the order dated 5-10-1976 precluding the petitioner to produce any evidence was upheld. Thereafter, the suit of Mst. Sarwari Begum was dismissed as withdrawn by the learned trial Court vide order dated 8-4-1978. At this stage the petitioner requested that fresh issues be framed in the suit and an opportunity to produce evidence may also be given. This request was turned down by the learned Senior Civil Judge, Gujranwala vide order dated 19-7-1979 observing that the issues framed in the rival suit are to be transferred on the file of this suit and that as the plaintiff's right to lead evidence has already been closed by the trial Court in the rival suit and further proceedings are to be taken from the stage where the rival suit was dismissed as withdrawn. This order was challenged by filing revision petition under section 115, C.P.C. but the same was dismissed by the learned District Judge Gujranwala vide order dated 5-5- 1981. It is pertinent to mention here that the petitioner was held to have forfeited his right to lead any evidence on account of non-filing of a list of witnesses. This was so held in view of the interpretation given by this Court in its decisions to the provisions contained in Order XVI. rule 1, C.P.C. The order dated 5-10-1976 precluding the petitioner from producing any witness and examining him was passed by the learned trial Court and the revision against the said order was dismissed by the learned Additional District Judge on 16-3-1978 following the view expressed in H.M.
Sadiq & Co. Lyallpur v. Volkart (Pak) Ltd., Karachi PLD 1976 Lah.
1460. In this Lahore case it was held that the provisions of rule 1 of Order XVI, C.P.C. as amended by the Law Reforms Ordinance, 1972 were mandatory and have to be followed strictly. This precise question came to be considered in the Full Bench case of Ghulam Murtaza v. Muhammad Ilyas and others PLD 1980 Lah. 495 and it was held "that the list is imperative for summoning of the witnesses by the parties and in the exercise of discretion vested in them for condoning the delay for good cause under this rule the Court should exercise the powers benevolently. But there is hardly anything which has taken away the rights of the parties to produce witnesses in Court of their own and the refusal of the Court to record the statements of the witnesses in attendance. The irresistible conclusion would be that the parties will have to comply with the amended rule (1) of Order XVI, C.P.C. if they desired to produce their witnesses under the authority of the Court but they cannot be stopped from producing any evidence in Court on the day fixed for evidence." It is also be appropriate to quote here another observation made by one of the learned Judges of the Full Bench.
"The present situation is a dangerous bar placed on the parties who are made to suffer for non- compliance of the new rule 1 of Order XVI, C.P.C. This gives not only disadvantage to the parties for the dismissal or decretal of the suit but also it provides handle to the trial Court to do away with large number of cases on this technical ground in order to show their greater disposal. Not only counsel for the parties but several counsel sitting in the Court, while the case was argued, complained of this unholy practice adopted in the Province by the trial Courts, in view of the introduction of new rule 1 of Order XVI, C.P.C."
' This judgment of the Full Bench was delivered on 20th April, 1980. This judgment was pressed into service before the learned District Judge while arguing the revision filed against order dated 19-7- 1979 of the learned trial Court. It was contended before him that in view of the latest Full Bench Authority order of Senior Civil Judge closing the petitioner's evidence and dismissal of the earlier revision petition against the said order were illegal and that as and when the matter is taken to the High Court the same is likely to be remanded for recording petitioner's evidence and so in order to save time of the Court and the parties the best course is to allow the petitioner to produce his evidence. The learned District Judge agreed that there are chances of the matter being remanded by the High Court for recording petitioner's evidence in the presence of the latest Full Bench Authority but as the respondents did not agree to the adoption of this course he dismissed the revision petition observing that he did not want to express any opinion in this respect as the circumstances may or may not arise and if the matter went to the High Court it would be for the learned Judge of the High Court to decide the matter. He was also of the view that as the petitioner's revision petition against the order closing his evidence was dismissed by the District Judge the matter stood concluded upto his level. It is in these circumstances that the petitioner has assailed the order dated 5-10-1976 of the learned trial Court closing his evidence and the order dated 16-3-1978 of the learned Additional District Judge dismissing the revision against the aforesaid order and the orders dated 19-7-1979 of the learned trial Court refusing to allow an opportunity to lead evidence and the order dated 5-5-1981 dismissing the revision petitioner filed against the order dated 19-7-1979.
2. Learned counsel for the petitioner at the very outset submitted that the petitioner does not object to the transfer of issues from the rival suit which has been dismissed, to his own suit and to the striking off the unnecessary parties and redundant issues. Learned counsel added that the petitioner only seeks an opportunity to lead evidence as his evidence was closed on the basis of the interpretation of law which no longer prevails. Learned counsel for the respondents opposed this request with the arguments that the petition is liable to be dismissed on the ground of 'aches and that parallel proceedings cannot be allowed to be initiated as the proceedings are still pending before the civil Court. It was also argued that the impugned orders suffer from no jurisdictional defect as the matter stood concluded upto the level of the Court of District Judge and that the petitioner has another remedy available to him because he will be entitled to challenge the order closing evidence in second appeal which lies to this Court in case his suit fails in the trial Court and the decree of dismissal of suit is upheld in appeal. Lastly, it was urged that the past and closed transactions cannot be reopened on the basis of a judgment delivered subsequently. It was added that the decision dated 16-3-1978 rendered in the revision petition operates as res judicata as the said decision was then not challenged by invoking constitutional jurisdiction and as such the petitioner cannot invoke in his aid the law laid down in the Full Bench Authority for seeking an opportunity to lead evidence.
3. After considering the respective pleas of the parties and having gone through the orders impugned in this petition, I am of the considered view that this petition must succeed for the following reasons: ' The effect of overruling decision was explained in "Salmond on Jurisprudence" by P.J. Fitzgerald (Twelfth Edition) as follows:- "As we have seen, the theory of case-law is that a Judge does not make law; he merely declares it; and the overruling of a previous decision is a declaration that the supposed rule never was law.
Hence any intermediate transaction made on the strength of the supposed rule are governed by the law established in the overruling decision. The overruling is retrospective, except as regards matters that are res judicata, or accounts that have been settled in the meantime."
' Reference may be made to the case of Muhammad Yusuf v. Chief Settlement and Rehabilitation Commissioner PLD 1968 SC 101 wherein binding effect of the judgments of the Supreme Court on questions of law and its interpretation over the judgments of the High Courts and other Authorities was explained in the following words:- "This judgment was delivered on the 2nd November, 1964, and its consequence was that as from that date all Courts subordinate to the Supreme Court and all executive and quasi-judicial Authorities were obliged by virtue of the Constitution to apply the rule as laid down by the Supreme Court in cases coming up before them for decision. It did not have, and it cannot be contended that it had, the effect of altering the law as from the commencement of the Act so as to render void of its own force all relevant orders of the Settlement authorities or of the High Court made in the light of the earlier interpretation which was that the exercise of the delegated power was subject to the provisions in Chapter VI of the Act."
' From these observations, it is apparent that the past and closed transactions cannot be reopened or that the decision which operates as res judicata cannot be reopened in the light of the contrary interpretation made in a judgment subsequently rendered. The question, therefore, arises whether in the instant case the decision precluding the petitioner to lead evidence applies as res judicata or the matter of production of evidence is a past and closed transaction. It may be noted, that it was not the case of the respondents that the matter of production of evidence is past and closed transaction as it was conceded that as and when the matter reaches the High Court in second appeal the petitioner will be allowed an opportunity to lead evidence as that opportunity was refused on the basis of erroneous interpretation of law. As regards the objection of res judicata it will be seen that erroneous decision on a point of law does not operate as res judicata. Reference may be made to Muhammad Rafiq v. Additional Settlement Commissioner Multan and others PLD 1966 (W.P.) Lah. 590, wherein decisions of the Lahore High Court and a decision of Calcutta High Court were also noticed. Late Mr.Justice Karam Elahee Chauhan also noticed a judgment of B.Z.
Kaikaus, J., in the case of Lal Din v. Mst. Sardar Bibi and another PLD 1959 (W.P.) Lah. 616 to highlight the point and to indicate as to when an erroneous decision operates as res judicata. It was pointed out that if a particular cause of action has been decided, then the same parties cannot be allowed to reagitate the rights in a fresh suit in view of the decision of the suit based on that cause of action irrespective of the erroneous decision on question of law. The observations made by B.Z. Kaikaus, J., may be reproduced here for pointing out the distinction noted above:- "These judgments, on a perusal of them, do not even support the proposition that learned counsel is putting forward, but I am aware of some judgments laying down that a decision on a pure question of law is not res judicata. I am quite prepared to accept and I would lay down myself that on a pure question of law, apart from a right which was in dispute in a particular spit, there can be no res judicata, but it does not follow that rights in respect of particular property which is in dispute in a particular case can be reagitated on the ground that the decision proceeds on a wrong view of law. Suppose a suit is filed for inheritance on the death of a particular person between the sister and a distant collateral and it is held that the sister is entitled to the whole of the property in accordance with the Muslim Law even in the presence of the collateral. If the question of inheritance arises again in respect of the death of another person, the pure question of law as to whether the sister is entitled to succeed to the whole property in the presence of a collateral, will not be res judicata, but this is something entirely different from saying that even in respect of the property which was the subject-matter of the first litigation a question can ever be raised that the sister was entitled not to the whole of it but to a part. So far as a particular cause of action is concerned, reagitation of the rights in respect of it is closed for ever as between the parties by the decision of the suit which is based on that cause of action."
4. In view of the principle laid down in the above observations, it is apparent that in the instant case the petitioner was precluded to examine witnesses on the basis of erroneous interpretation of law which stands overruled and in the words of Salmond, the overruling of a previous decision is a declaration that the said rule never was the Moreover, this erroneous interpretation was that of procedural law and the rights of the parties in respect of the cause of action subject-matter of the suit were not adjudicated upon in any manner and the suit is still pending adjudication. No rights as such have come to vest in respect of the cause of action in the respondents and as a matter of law no right can be claimed in procedural matters. It is also well-settled that law favours adjudication of causes on merits, the procedural laws exist for advancement of and not for denying justice. The Courts are not slaves of the procedure and the machinery provisions of law cannot be placed as fetters on the powers of the Court to do justice. The petitioner as such cannot be refused the grant of an opportunity to lead evidence by producing the evidence on his own responsibility though he has forfeited his right to call the witnesses through the process of the Court. The plea of lathes advanced by the respondents has also no merit. Delay per se is not a ground for refusing discretionary relief in exercise of constitutional jurisdiction. It is true that exercise of discretionary jurisdiction is refused where because of delay some right has come to vest in the opposite party but in the instant case no such rights have come to vest in the respondents. The petitioner has throughout been agitating the matter so as to seek an opportunity to lead evidence. It is true that order dated 16-3-1978 was not challenged by invoking constitutional jurisdiction immediately thereafter but firstly, the petitioner could not have challenged the order in constitutionalE jurisdiction as a matter of right and secondly, in view of the interpre tation of law then prevailing the result might not have been any different. The Full Bench Authority came in the year 1980 and before that the petitioner had moved the trial Court for the grant of an opportunity to adduce evidence. For the grant of the said opportunity, the petitioner again invoked the revision jurisdiction but failed. It is in these circumstances that the petitioner approached this Court by invoking its constitutional jurisdiction. I am of the view that the plea of 'aches cannot be accepted in this case as that will result in denial of justice.
5. For the reasons given above, the impugned orders are quashed having been passed without lawful authority and it is directed that the petitioner will be allowed opportunity to produce witnesses on his own responsibility. The petition is, therefore, accepted in the above terms.
6. The parties are, however, left to bear their own costs.