PIR BAKHSH REPRESENTED BY HIS LEGAL HEIRS AND Other vs THE CHAIRMAN, ALLOTMENT COMMITTEE AND Other

1. Judgment- --Terms "Judgment in rem" and "judgment in personam"-Import--Point adjudicated upon in a judgment in rem is as to status of the res and is conclusive against the world as to that status- Point decided in judgment in personam is conclusive only between parties--Evidence Act (I of 1872), S. 41-Rationale behind S. 41-Provisions of S. 41, Evidence Act, 1872 is a foundation for exception of Judgment in rem-Maxims: "Res inter alios judicata nullun inter alios prejudicium facit"; "Res inter alios acta alteri nocere non debet."--[Maxim].

2. The terms "in rem" and "in personam" are of Roman Law used in connection with actio, that is, actio in rem and actio in personam to denote the nature of actions, and with the disappearance of the Roman forms of procedure, each of the two terms "in rem" and "in personam" got tagged with the word judgments to denote the end-products of actions in rem and actions in personam. Thus, according to the civil law an actio in which a claim of ownership was made against all other persons was an action in rem and the judgment pronounced in such action was a judgment in rem and binding upon all persons whom the Court was competent to bind, but if the claim was made against a particular person or persons, it was an action in personam and the decree was a decree in personam and binding only upon the particular person or persons against whom the claim was preferred or persons who were privies to them.

3. The point adjudicated upon in a judgment in rem is always as to the status of the res and is conclusive against the world as to that status, whereas in a judgment in personam the point, whatever it may be, which is adjudicated upon, it not being as to the status of the res, is conclusive only between parties or privies. A decision in rem not merely declares the status of the person or thing, but ipso facto renders it such as it is declared.

4. Section 41 of the Evidence Act, 1872 does not use the term "judgment in rem", but it incorporates the law on the subject of "judgments in rem" and makes them relevant not only against strangers but also conclusive of certain matters such as whether a person was entitled to a legal character or to any specific thing not as against any specified person but absolutely.

5. Judgments in rem are an exception to the rule of law that no man should be bound by the decision of a Court of justice unless he or those under whom he claims were parties to the proceeding in which it was given. This rule of law is referable to the maxims of Roman Law namely, "Res inter alios judicata nullun inter alios prejudicium facit," or "Res inter alios acta alteri nocere non dibet" Such exception of the judgment in rem in the Roman Law was the foundation of the exception in English Law. Section 41 of the Evidence Act is the foundation for the exception of judgment in rem in our corpus juris. The reason why a judgment should not be used to the prejudice of a stranger is that he is denied the funda--mental right to make a defence, or to examine or cross-examine witnesses or to appeal from a judgment which aggrieves him. This is the requirement of most manifest justice and good sense.

6. Monir on Principles and Digest of the Law of Evidence, p. 563 ref.

(k) Res Judicata- -- Estoppel by judgment-.Doctrine explained-Civil Procedure Code (V of 1908), S. 11.

7. If a person was a party then the judgment of the competent Court as a plea is a bar or as an evidence conclusive between the same parties upon the same matter directly in question in another Court or in another action between the same parties in the same Court. In legal parlance this bar is known as estoppel by judgment or res judicata.

8. A decision once made in a case, by the highest Court empowered to pass upon it, is conclusive upon the parties to the controversy and their privies, who are not allowed afterwards to revive it in a new proceeding for the purpose of raising the same or any other questions. The matter in con-- troversy has become res judicata, a thing definitely settled by judicial deci--sion ; and the judgment of the Court imports absolute verity. Whatever the question involved, whether the interpretation of a private contract, the legality of an individual act, or the validity of a legislative enactment, the rule of finality is the same. The controversy has been adjudged, and once finally passed upon is never to be renewed.

9. The rule of conclusiveness to this extent is one of the most inflexible principles of the law; in so much that even if it. Were subsequently held by the Courts that the decision in the particular case was erroneous, such holding would not authorize the reopening of the old controversy in order that the final conclusion might be applied thereto.

10. It matters nothing whether the error, if any, was an error on a point of fact or on a point of law . . . . .

11. Courts of law are in no way authorized to alter the rights of parties. They profess, at all events, to ascertain the law, and if the binding character of a decision upon a concrete question as to the terms of a particular .Holding is to fluctuate with every alteration in the current of authority the Courts will become an instrument for the unsettlement of rights rather than for the ascertainment thereof.

12. The question whether decision is correct or erroneous has no bearing upon the question whether it operates or does not operate as res judicata. The doctrine is that in certain circumstances the Court shall not try a suit or issue but shall deal with the matter on the footing that it is a matter no longer open to contest by reason of a previous decision. In these circumstances it must necessarily be wrong for a Court to try the suit or issue, come to its own conclusion thereon, consider whether the previous decision is right and give effect to it or not according as it conceives the previous decision to be right or wrong. To say, as a result of such disorderly procedure, that the previous decision was wrong and that it was wrong on a point of law, or on a pure point of law, and that, therefore, it may be disregarded, is an indefensible form of reasoning. For this purpose, it is not true that a point of law is always open to a party.

13. On the other hand it is plain from the terms of section 11 of the Code that what is made conclusive between the parties is the decision of the Court and that the reasoning of the Court is not necessarily the same thing as its decision. The object of the doctrine of res judicata is not to fasten upon parties special principles of law as applicable to them inter se, but to ascertain their rights and the facts upon which these rights directly and substantially depend, and to prevent this ascertainment from becoming nugatory by precluding the parties from reopening or recontesting that which has been finally decided.

14. Tarini Charan v. Kedar Nath AIR 1928 Cal. 777 and Gowri Koer v. Audh Kaur (t 884) 10 Cal. 1087 ref.

(1) Res iudicata- --- Judgment inter parses - Judgments in personam could not be reopened in view of bar of res judicata-Where decision of a Division Bench, on a point of law, was disapproved by a Full Bench, decision of Division Bench nonetheless is no less a res judicata although it may have been founded on an erroneous view of law, or on a view of law which Full Bench subsequently disapproved.

15. Gowri Koer v. Audh Koer and others I L R 10 Cal. 1087 ref.

(m) Constitution of Pakistan (1973)

16. Art. 189-Judgment - Judgment in personam-Where grievance was an individual grievance and related to satisfaction of claim in full or in part, proceedings were actions in personam against definite persons arrayed as respondents and determination a judgment in personam-Where such determination was not set aside in appeal, judgment remained in field irrespective of the quality of determination as to whether it was incorrect on question of fact or law-Rights of parties thereunder assumed finality and took the colour of a "past and closed transaction"-Fact that Supreme Court in an appeal against the judgment of High Court set aside same judgment in another writ petition would not reopen concluded rights of the parties under decision of High Court against which no appeal was filed nor could appellants who were respondents in writ petition avail the benefit of law laid down by the Supreme Court under Art. 189, Constitution of Pakistan (1973)-Judgment in appeal was operative as from the date it was announced and it did not have the effect of re-opening the rights of the parties concluded finally under the High Court judgment-Authority of law laid down by Supreme Court under Art. 189 being prospective, decision of High Court nonetheless stood overruled on same question of law but that will not affect rights of parties already determined by High Court.--[Judgment].

17. Jalal Din v. The Chief Settlement Commissioner etc. PLD 1965 SC 261; Muhammad Yousaf v. C. S. C. Pakistan Lahore PLD 1968 SC 101; Income-Tax Officer v. Cement Agencies Ltd. PLD 1969 SC 322 and Octavius Steel & Company Limited v. The Commissioner of Income-tax, Dacca PLD 1960 SC 371 ref.

(n) Constitution of Pakistan (1973)- Arts. 189 & 185-Supreme Court-Law laid down by Supreme Court is prospective.-[Precedent].

(o) Civil Procedure Code (V of 1908)- -- S. 11-Res judicata-What is made conclusive by S. 11, C. P. C. Between the parties is decision of the Court and not its reasoning which is not necessarily the same thing as its decision.

18. Tarini Charan v. Kedar Nath AIR 1928 Cal. 777 ref.

19. Ch. Khalilur Rehman, Senior Advocate and Tanvir Ahmad, Advocate-on--Record for Appellants (in all the Appeals).

20. S. M. Zafar, Senior Advocate, Supreme Court and S. Zahid Hussain, Advocate, Supreme Court instructed by Khan Muhammad Imtiaz Khan, Advocate-on-Record for Respondents Nos. 6, 4, 4, 2 to 6, 4, 4, 3 (ii) to (vi), 2, 4 to 15 (in Civil Appeals Nos. 157, 158, 159, 161, 162, 163, 164, 166, and 157 of 1972 respectively).

21. Respondents Nos. 1 to 4, I to 3, 1 to 3, I to 3, 1, 1 to 3, 1 to 4 and 4(a to vi), 4(6), 1 to 3(i), I to 6, I, 1 to 3 : Ex parte (in Civil Appeals Nos. 157 to 166 of 1974 and 157 of 1972 respetively).

22. Date of hearing : 23rd June, 1986.

JUDGMENT

23. MUHAMMAD HALEEM, C. J.-These appeals, by special leave, arise from the common judgment, dated 13-8-1973 in Writ Petitions Nos. 43-R of 1966, 243-R of 1971, 58-R of 1966, 68-R of 1966, 45-R of 1966, 40-R of 1966, 44-R of 1966, 651-R of 1966 and 69-R of 1966; judgment dated 14-12-1973 in Writ Petition No. 1604-R of 1965 and judgment dated 15-11-1971 in L. P. A. No. 1019 of 1966, by which the Lahore High Court dismissed the writ petitions and the letters patent appeal arising out of Writ Petition No. 670-R of 1965.

24. In Civil Appeal No. 157 of 1972 leave to appeal was granted to examine "as to whether the High Court was right in taking the view that the appellant was bound by the order of the High Court in Writ Petition No. 175 of 1957" on the finding given by it that she was duly represented by her constituted attorney when the writ petition itself did not disclose that she was party to those proceedings. In the other appeals a question has arisen as to whether the appellants, who had not appealed to this Court although parties in Writ Petition No. 175 of 1957, were bound by the order despite the judgment of this Court on appeal by an aggrieved person in the case reported as Abdul Hafiz v.

25. Rehabilitation Commissioner (PLD1966SC483declaring the order of Mr. 1. U. Khan as valid as a law laid down and binding on all Courts and authorities so as to save. The allotments made, while implementing the order of Mr. I. U. Khan, which were cancelled in view of the order passed in Writ Petition No. 175 of 1957.

26. The counsel appearing for the parties at the outset stated that except for Civil Appeals Nos. 157 of 1972, 157 of 1974, 158 of 1974 and 164 of 1974, the facts are common in all other appeals. Out of this lot I will first take up Civil Appeal No. 159 of 1974. In Pakpattan Tehsil of District Montgomery now Sahiwal the available area of agricultural land for allotment was less than the claims preferred. Out of these Chaks the present dispute relates to Chak No. 147/E.B. In this Chak an area of 46 Acres of land was confirmed in favour of respondent No. 4 now represented by his legal representatives- respondents Nos. (i) to (v). Rehmat Khan and others filed Revision No. 222 of 1952-53 before the Rehabilitation Commis--sioner (Land) Punjab to challenge the acceptance of appeal in favour of Bashir Ahmad. In that revision while examining the register R.L.-II, the Rehabilitation Commissioner noticed that numerous refugees were not allot--ted land in full satisfaction of their claims so much so that many small claim holders were not given full area though it was very small while on the other hand some of the big claim-holders like the respondents in the instant case were allotted larger areas. This allotment, according to him, was not fair and equitable, and was against the instructions issued from the office from time to time. While accepting the revision, the Rehabilitation Commissioner gave directions by order dated 31-3-1953 as under "(1) All the claims of allottees for allotment in the Chak that were pending whether verified or not on the 10th October, 1951 in this Chak should be satisfied, on the basis of ratable distribution.

(2) A maximum should be fixed and no one should get more than this.

(3) Those who had their claims transferred later on whether allottees or not should have no claim for allotments.

(4) The existing possession will continue so far as possible and adjustment should be made with as little disturbance as possible."

27. The matter again came up before his successor by way of review which was rejected by order, dated 27th of January, 1954. The Rehabilita--tion Commissioner refused to grant the declaration in terms that those persons who had their claims pending in the Chak on 10-10-1951, but had by that date made clear that they wanted their claims to be transferred to some other estate, those claims should not be considered to be pending in the Chak on the aforestated date as, in fact, their claims were transferred from the estate on 1-11-1951 after the confirmation by other allotments in the Chak on 27th of October, 1951. Thereafter, the matter came up before M. I. U. Khan, Rehabilitation Commissioner (Land), West Pakistan, on the revisional side who noted that in the Chak under dispute and the other Chaks allotments had not been made in accordance with the provisionsof the Rehabilitation and Settlement Scheme, and that after hearing the persons individually present from each Chak, he was of the view that the allotments needed wholesale revision as non-allottees were allowed to get allotments under the Rehabilitation Settlement Scheme against the interest of sitting allottee-claimants. Those present had no valid objection to the revision of allotments.

28. Accordingly, he quashed the allotments already finalised and directed by order, dated 11th - of November, 1956, that fresh allotments in the estates concerned should be made keeping in view the following directions: "(i) Persons eligible for allotment will be these

(a) Who were temporary allottees and gave their claim forms for this very estate and whose claims had been received by or were pending on the date noted against each estate in the margin of the first paragraph of this order when the first or the most of the confirmation were made.

(b) Who were temporary allottees and had registered their claim forms for different estates but had got the same transferred to this estate on or before the dates specified above.

(c) Who were Government servants or such other non-allottees in accordance with the paragraph 7, Part II of the Rehabilitation Settlement Scheme and bad put in claim forms for this very estate and whose claim forms were pending satisfaction on the said date.

(d) Government servants and other classes of claimants mentioned in item `C' above, who had given claim forms for a different estate but had got them transferred to the said estate on or before the said date.

(ii) The verified claim of the claimants detailed in item (i) above will be satisfied in full subject to availability of land. If enough land to meet their verified claims is not available, a ratable distribution should be made in accordance with paragraph 11 of Part 11 of the Rehabilitation Settlement Scheme. In case of the claimants whose claims or objections were pending for verification or reverification on the relevant date, 75 % of the area claimed mentioned in the objec- -tion petition should be reserved, provided that if the claim or the objection petition has since been disposed of, and the actual verified area is less than the area reserved to have been made to the extent of the area actually verified.

(iii) The normal rules of permitting the temporary allottees to secure the area held under temporary allotments under the Rehabilitation Settlement Scheme on the basis of the verified claim will be observed. In case of the other types, if a person whose claim has already been satisfied and who is entitled to secure an allotment in this village under these orders has to part with any area, that area should be taken away according to his choice and in such manner that the area left is in a compact block.

(iv) In calculating the entitlement of the claimants concerned, regard should not be paid to the increase in produce-allottees ordered subsequent to the specified date.

(v) If the area available is more titan the requirements of the categories of claimants mentioned in item the above, the surplus may be utilized for allotment in the following order of priority :--

(a) The sitting allottees who had got their claim forms transferred from other estates upto 1st June, 1956 or whose allotments have since been finalized and thereafter.

(b) the non-allottees claimants who had originally registered their claim forms for this estate and if registered elsewhere had got the same transferred to the estate before the relevant date in accordance with the principles enunciated in the Rehabilitation Settlement Scheme."

29. In implementation of this order each one of the appellants was allotted 7 Acres equivalent to 294 produce-index-units on 19th of October, 1957, in Killas Nos. 1, 9, 10 of Square No. 3. Each entitlement of 7 Acres included 3 Acres of land already allotted to Bashir Ahmad which is the subject-matter of dispute in this appeal. Against this Order of Mr. I. U. Khan, Rehabilitation Commissioner (Land), 16 writ petitions were filed on 11th of November, 1956. Out of them Writ Petition No. 175 of 1957 filed by Bashir Ahmad and six others remained pending while the others were heard and allowed on the 15th of November, 1957, and the order of Mr. I. U. Khan was quashed as the High Court was of the opinion: firstly, that the total finality conferred by section 13 of the Pakistan Rehabilitation Act, 1956, upon any order passed by a Rehabili--tation Commissioner, or Additional Deputy or Assistant Rehabilitation Commissioner cannot be taken away by passing au administrative order under section 7(1) of the Act; secondly, that the final order being inconsis--tent with the administrative order passed under section 7 of the Act, the latter Cannot detract it from its finality; thirdly, that the Rehabilitation Commissioner had no power to pass an omnibus order in exercise of revisional jurisdiction under section 11(4) of the Act without giving notice to the individuals in the manner contemplated by subsection (4) of the Act; and, fourthly, that the law did not contemplate reviewing a case on merits unless any error or omission becomes apparent, and, therefore, the exercise of this power was not proper.

30. One of the aggrieved respondents Abdul Hafiz in Writ Petition No. 19 of 1957 filed an appeal against the judgment of the High Court. The dispute in his case related to Chak No. 149/E.B., Tehsil Pakpattan. Abdul Hafiz succeeded and the order of the High Court dated 15-11-1957 was quashed. It was held that "The grounds on which the High Court's decision rests are found to be unsustainable in law."

31. The dispute in this appeal related to the question as to whether the impugned order in so far it directed a general revision of allotments could have been passed in exercise of the revisional powers of the Rehabilitation Commissioner under section 11 of Pakistan Rehabilitation Ordinance (XLII of 1956). In resolving the dispute, this Court held : firstly, that the requirements of subsection (4) of section 11 were met and that the order clearly fell within the ambit of the powers conferred on the Rehabilitation Commissioner by subsection (4) of section 11 of the Ordinance ; secondly, that the order directing a general revision of allotments could be passed in terms of section 11(4) read with section 7(1) and para. 23 of Part I and para. 7 of Part II of the Rehabilitation Scheme, Punjab ; and, thirdly, that an order of general revision of allotments in a Chak was not an order of general nature within the meaning of section 7(1) of the Ordinance. As to the finality of the orders passed in revision under section 13 of the Ordinance, it was observed that no such objection was taken before the Rehabilitation Commissioner at the time when the impugned order was passed, and, therefore, such a point which involved a question of fact as to whether any such final order existed or not should not have been per--mitted to be raised in the High Court.

32. During the pendency of the appeal in the Supreme Court, writ petition No. 175 of 1957 was taken up by the High Court on 13-10, 1958 and allowed. The decision in this writ petition was not challenged in the Supreme Court. After the disposal of the writ petition Civil Miscellaneous Petition No. 4616 of 1962 was filed praying that as no appeal had been filed against the judgment in the writ petition, the impugned order of the Rehabilitation Commissioner should be declared as of no effect qua the petitioner now respondent No. 4 in the appeal. As the review petitions against the order of the Supreme Court were pending, the disposal of this application was deferred and on the dismissal of the review petitions, this application was dismissed on 4th of December, 1962, despite the contention that as the petitioner was not a party to the appeal which was accepted by the Supreme Court, the order of that Court did not bind him. But this contention was repelled on the ground that if the petitioner had been a party in the appeal, the order of the Supreme Court would not have been, in any way, different from the one that had been passed. As the exercise of jurisdiction was discretionary the ground had nothing to recommend it except being technical.

33. By order dated 13th of September, 1963, respondent No. 1 herein restored to the appellants their 1951 allotment as, in his opinion, the impugned order of the Rehabilitation Commissioner did not apply to their case. Accordingly, their allotment was reduced to 4 Acres. The appeal against this order was dismissed by the Additional Settlement Commissioner (Land) on 13th of March, 1965, and a revision was also dismissed against this order on 19th of August, 1965. The appellants thereupon filed Writ Petition No. 58-R of 1966 which was dismissed on 13-8-1973.

34. In Civil Appeal No. 158 of 1974 of the other set, the appellants and others filed an application under sections 10 and 11 of the Displaced Persons (Land Settlement) Act, 1958 (hereinafter referred to as "the Act"), before the Settlement Commissioner exercising the powers of the Chief Settlement Commissioner against the allotments of land to certain persons, including the contesting respondents Nos. 2 to 6, in contravention of the order of Mr. I. U. Khan. The Settlement Commissioner by order, dated 9th of April, 1971, held "(a) Allotments in favour of those persons who possess status quo order from the High Court ;

(b) those who have already a verdict of the High Court or the Supreme Court in their favour ; and

(c) those whose cases are under adjudication with higher Court, shall not be disturbed."

35. And directed the Assistant Commissioner (Land), Pakpattan to examine allotments in all cases not covered by the above three categories and wherever the allotments were in contravention of the orders of Mr. I. U. Khan, these should be cancelled and new allotments made in accordance with Mr. I. U. Khan's orders. As a consequence of this order, the appel--lant's allotments were restored.

36. Aggrieved by it, the respondents Nos. 2 to 6 filed Writ Petition No. 243-R of 1971 in the Lahore High Court, Lahore, which was allowed by order, dated 13th of August; 1973, and the allotments made in favour of the respondents in 1963 were upheld as the appellants were held to be bound by the order of the High Court as they had failed to challenge it before the Supreme Court.

37. In Civil Appeal No. 164 of 1974, as the appellant was affected by the order of the High Court quashing the order of Mr. I, U. Khan, respondent No. 1 cancelled the allotment of the appellant in Killas Nos. 6 to 9, 13 to 15 and 17 of Square No. 28 of the Chak in dispute and restored it to the Khata of respondents 4 to 6 by his order dated 13th September, 1963. The appellant went in appeal against this order which was rejected by the Additional Settlement Commissioner, Sahiwal, on 13th of March, 1965. The revision filed against this order also met the same fate. The appellant thereupon filed Writ Petition No. 651-R of 1966 in the High Court, but did not succeed as it was dismissed by order, dated 13th August, 1973, on the ground that as the appellant had not filed any, appeal against the order of the High Court dated 15-11-1957, he was bound by the order of the High Court and could not take the benefit of the order of Supreme Court quashing it and upholding the order of Mr. I. U. Khan.

38. In Civil Appeal No. 157 of 1974, consequent upon the quashment of order of Mr. 1. U. Khan by the High Court, respondent No. 1 cancelled the appellants' allotments in Killas Nos. 11 to 14, Square No. 46 of the disputed Chak and restored it to the Khata of respondents Nos. 4 to 6 by his order dated 13th of September, 1963. The appeal against this order failed as it was dismissed by the Additional Settlement Commissioner, Sahiwal, on 13-3-1965. The revision against this order was also dismissed. The appellants thereupon invoked the jurisdiction of the High Court through Writ Petition No 43-R of 1966, which too was dismissed for the same reason as given in the earlier writ petitions.

39. In Civil Appeal No. 157 of 1972, as a consequence of the order passed in Writ Petition No, 175 of 1957, respondent No. 1 by his order, dated 14th September, 1963, cancelled some land of the appellant from her Khata on the ground that she did not prefer any appeal against the judgment of the High Coutt and was, accordingly, bound by it. As the order was passed behind her back, the appellant on coming to know of it filed an appeal before the Additional Settlement and Rehabilitation Commis--sioner (Land) which was rejected as barred by time. The revision against this order also failed as it was rejected by the Settlement Commissioner (Land) on 9th of February, 1965. The appellant next filed Writ Petition No. 670-R of 1965 in the Lahore High Court, which too was dismissed. The appellant was held to be a party in Writ Petition No. 175 of 1957 on the strength of the finding that one Noor Muhammad, who was respondent No. 13, was also a Mukhtar-i-Am of Mst.

40. Raiban, and, therefore, bound by the order passed in writ petition. Her appeal to the Additional Settle--ment Commissioner was held to be hopelessly barred by time. Accord--ingly, the writ petition was disposed of as being without any merit. The Letters Patent Appeal against this order also failed as she was held to be bound by the order of the High Court in Writ Petition No. 175 of 1957, and the impugned order of cancellation, dated 14th September, 1963, was held to be a consequential order giving effect to the judgment of the High Court.

41. Accordingly, she was treated at par with those respondents who had not appealed against the judgment of the High Court quashing the order of Mr. 1. U. Khan. The same view was taken by the High Court while deciding Writ Petition No. 1604-R of 1965 out of which Civil Appeal No. 166 of 1974 arose.

42. In Abdul Ghafoor v. Rehabilitation Commissioner, West Pakistan, Lahore (PLD 1958 Lah. 48and other writ petitions, the legality of the order dated 11-11-1956 passed by Mr. I. U. Khan was challenged. It relates to the quashing of the allotments already finalised and for making fresh allotments in the light of the instructions contained therein which had the effect of setting aside a multitude of orders having attained finality. This involved a large number of sitting allottees of different parcels of land whose areas were reduced as a result of the fresh allotments made in implementation of the instructions in the concerned Chak as the land was not sufficient to satisfy each and every claim in its entirety. The grievance was, therefore, common in all the writ petitions as it related to the legality of the reduction of the area allotted in implementation of the instructions. However, against the order of the High Court in Writ Petition No. 19 of 1957, dated 15th November, 1957, it was Abdul Hafiz who alone questioned the legality of the judgment of the High Court in the Supreme Court and the dispute was finally resolved in his favour. There cannot also be a doubt that the questions raised were of law as the legality of the order was canvassed in the context of the provisions of the Rehabilitation Act, the rules framed thereunder, and the Rehabilitation and Settlement Scheme, and this Court upheld the order of Mr. 1. U. Khan on legal grounds.

43. It would be of advantage to recapitulate the contentions raised before the High Court. On behalf of the petitioners-appellants except in Writ Petition No. 243-R of 1971, it was urged that on the setting aside of the judgment of the High Court in appeal by the Supreme Court, it was no longer effective and no action should have been taken by the Settlement and Rehabilitation Authorities on the basis of the judgment of the High Court as the order of Mr. 1. U. Khan was upheld with the result that it sanctified the revision of their allotments in favour of the respondents in all writ petitions. It was, therefore, urged that the judgment of the Supreme Court was bound to be followed and the allotments revised in favour of the respondents in all the petitions. It was next contended that even if it was accepted, for argument's sake, that the order of Mr. 1. U. Khan, dated 11-11-1956 was not in the field in view of the judgment of the High Court then the order dated 31-3-1953 of Mr. Akhtar Hussain the then Rehabilitation Commissioner, which was earlier in point of time, and directed the making of fresh allotments in compliance with the instruc--tions should have been given effect as it was still intact. Lastly, it was contended by Mr. A. R. Shaukat on behalf of some of the petitioners-- appellants that since Mr. I. U. Khan's order had already been implemented before the writ petitions were filed to challenge it, the allotments made on the basis of that order could not be cancelled on the basis of the High Court's order in the absence of any appeal or revision against the allotments made in their favour, as they had thus assumed finality and the Chairman, Allotment Committee, could not review those orders in compliance with the order of the High Court.

44. On the other band, Mr. S. M. Zafar on behalf of the respondents, herein, contended that the appellants in all the appeals except respondents 2 to 6 in Appeal No. 158 of 1974 (arising out of Writ Petition No. 243-R of 1971), were parties in the writ petitions decided by the High Court by its judgment in Writ Petition No. 19 of 1957 reported as Abdul Ghafoor and others v. The Rehabilitation Commissioner, West Pakistan, Lahore and Writ Petition No. 175 of 1957, and as they failed to challenge the correctness of the judgments, they were bound by it. Except for the respondents 2 to 6 and respondents Nos. 5, 9, 11, 12, 16 and 17, in Writ Petition No. 243-R of 1971, all others were impleaded as respondents in that petition (Writ Petition No. 175 of 1957), and against the judgment in that petition none of the appellants-respondents filed an appeal in the Supreme Court, hence the appellants-respondents were bound by the judgment of the High Court. It was next contended that the appellants had, at no stage, benefited from the order of Mr. Akhtar Hussain which was never implemented, and as such the question of its subsequent violation does not arise.

45. On the basis of these submissions, the High Court examined the effect of the order of the High Court, dated 15th of November, 1957 and 13th of October, 1958, in Writ Petitions Nos. 19 of 1957 and 175 of 1957 respectively.

46. The result of this examination has been aforestated and all the petitions were dismissed except Writ Petition No. 243-R of 1971, which was allowed and the impugned order of Settlement Commissioner set aside. The conclusions, however, also necessitate the consideration as to the effect of Supreme Court judgment in terms of Article 189 of the Constitution on the rights of the parties determined by the judgments of the High Court which had assumed finality. It is to be noted that the appellants were specifically arrayed as respondents in those writ petitions and the dispute was inter parties.

47. It was contended on behalf of the appellant that the bar of res fudicata was not attracted to a decision on a question of law. This formulation was sought to be established from the cases reported as Barkat Ali v. Maula Bukhsh (1), Muhammad Shafi v. Ilamuddin (2) and Dani v.

48. Settlement Commissioner (Land) (3).

49. The Supreme Court decided Civil Appeals Nos. 118 of 1969, 120 of 1969 and 124 of 1969 by a common judgment. Dated 28th of October, 1971. These appeals are cited as Barkat Ali and others v. Maula Bakhsh and others (4). Each of the appeal arose out of a single judgment of the erstwhile High Court of West Pakistan, Lahore, dated 17th of March, 1965, in Writ Petitions Nos. 104, 19 and 173 of 1957, respectively. The High Court set aside the omnibus order of the Rehabilitation Commissioner on the ground that it violated subsection (I) of section 7, subsection (4) of section 11 and section 13 of the Pakistan Rehabilitation ordinance, 1956, giving finality to the confirmed allotments.

(1) PLD 1972 SC 307(2) 1968 SCMR 1293

(3) 1978 SCMR 412(4) PLD 1972 SC 307 From this judgment four appeals bearing Nos. 3/1, 3/3, 3/4 and 3/5 of 1959, were filed in this Court.

50. Civil Appeal No. 3/1 of 1959, Abdul Hafiz v. Rehabilitation Commissioner, was allowed by this Court by its judgment, dated 7th June, 1962, by which the omnibus order of the Rehabilitation Commissioner was upheld. However, in this appeal on the basis of the averments in the writ petition itself, this Court held that the question of finality of the orders under section 13 did not arise as no previous revisional order in respect of allotments existed. As in the remaining appeals it was not apparent that the revisions were filed and decided upto the highest level in respect of such allotment, and, therefore, the question of finality of those orders under section 13 could not be determined, this Court by judgment dated 7-6-1962 remanded the cases to the High Court with the direction that all the parties concerned should be heard and a decision given in accordance with law. And on remand, the High Court re-heard the writ petitions and held that the impugned omnibus order could not be upheld as it destroyed the finality of the orders under section 13 passed while disposing of the revision applications. Out of this common judgment, the appeals in question arose. And leave to appeal was granted to consider :- "Whether the order of the Rehabilitation Commissioner struck down by the High Court was really an order passed in the review jurisdiction or whether it merely amplified earlier orders passed in revision by filling in certain details without departing materially from the earlier orders. The further question that requires consideration by this Court is as to whether the so-called order of review could fall within the ambit of subsection (1) of section 7 of the Rehabilitation Act of 1956.

51. This Court finally held after considering the arguments of the parties :- "The impugned order of the 11th of November, 1956 could, therefore, in our opinion, have been legitimately made both under subsection (1) of section 7 of the Rehabilitation Act of 1.956 and under section 11(4) thereof. The only material difference between this order and the order of the 9th of January, 1956 and other previous revisional orders is in respect of the date, on the basis of which the entitlement is to be determined, and since this as has already been held, could lawfully be done, so valid exception can be taken to the impugned order."

52. "We have also examined the revisional orders of 1-12-1954 and 22-10-1956 in Revisions Nos. 1573 of 1953-54 and 206 of 1955-56 respectively but are unable to agree that the impugned order of 11-11- 1956 made any material alterations in them."

53. The appeals were, accordingly, allowed.

54. Undoubtedly the law points raised for decision in these appeals were not decided in Abdul Hafiz's case and the cases were remanded for investigating the claims as to whether, in point of tact, the revisional orders existed. The decision on this question in these appeals was a fresh determination as it was found that the existence of the revisional orders, which was a question of fact, was yet undetermined without which there could not be a determination of the question of law. This Court on an examination of those orders held that they did not fall within the purview of revision or review so as to destroy the finality of the orders. Thus, the ratio decidendi in Abdul Hafiz's case was tested by this Court in the subsequent appeals for determining the vires of the omnibus order although different parties were involved in the appeals.

55. There is a distinction in what a case derides generally and as against allthe world from what it decides between the parties themselves. Salmond "On Jurisprudence", Twelfth Edition, at page 175, brings 'out this distinction in these words :- "What it decides generally is the ratio decidendi or rule of law for which it is authority ; what it decides between the parties includes far more than just this. Since it would be obviously impracticable if there were no end to litigation and if either party to a legal dispute were at liberty to reopen the dispute at any time, the law provides that once a case has been heard and all appeals have been taken (or the time for appeal has gone by) all parties to the dispute and their successors are bound by the Court's findings on the issues raised between them and on questions of fact and law necessary to the decision of such issues. According to this principle three matters are now res judicata between them and cannot be the subject of further dispute. But the Court's findings will not be conclusive except as between the same parties . . . . Third parties not involved in the original case, however, will not be bound, nor will either of the original parties be bound in a subsequent dispute with a third party."

56. Elaborating further, it is the policy of the Courts to stand by the ratio decidendi, that is, the rule of law and not to disturb a settled point. This policy of the Courts is conveniently termed as the doctrine of rule of stare decisis. This rationale behind this policy is the need to promote certainty, stability, and predictability of the law. This. However, does not mean that this rule is inflexible. In this context, it will be of advantage to sum up what Hamoodur Rahman, C. .i., in the case reported as Asma Jilani v. Government of the Punjab (PLD 1972 SC 139said :- "I am not unmindful of the importance of this doctrine but in spite of a Judge's fondness for the written word and his normal inclination, to adhere to prior precedents I cannot fail to recognise that it is equally important to remember that there is need for flexibility in the application of this rule, for law cannot stand still nor can we become mere slaves of precedents...:...

57. It will thus be seen that the rule of stare decisis does not apply with the same strictness in criminal, fiscal and constitutional matters where the liberty of the subject is involved or some other grave injustice is likely to occur by strict adherence to the rule."

58. Even the House of Lords has modified its present practice of giving strict adherence to its own precedents. In this connection I would here refer to a Note published at page 77 in the case reported as Lloyds Bank Ltd. v. Dawson and others ((1966) 3 All E R 77which reads :- "Before judgments were given in the House of Lords on July 26, 1966, LORD GARDNER, L. C., made the following statement on behalf of himself and the Lords of Appeal in Ordinary :- Their , Lordships regard the use of precedent as an indispensable foundation upon which to decide what is the law and its application to individual cases. It provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs, as well as a basis for orderly development of legal rules.

59. Their Lordships nevertheless recognise that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law. They propose, therefore, to modify their present practice and, while treating formef decisions of this house as normally binding, to depart from a previous decision when it appears right to do so.

60. In this connexion they will bear in mind the danger of disturbing retrospectively the basis on which contracts, settlements of property and fiscal arrangements have been entered into and also the especial need for certainty as to the criminal law.

61. This announcement is not intended to affect the use of precedent elsewhere than in this House."

62. There are, therefore, exceptions to the rigid adherence to this rule, and I am of the view that this Court being the Court of ultimate jurisdiction has power to review its own judgments. This doctrine should not be confused with res judicata which rests on a different principle.

63. In American Jurisprudence 2nd, Volume 20, at page 521, the distinction between these two concepts is brought out in these words :- "While res judicata applies only when the same parties, or their privies, are involved in the subsequent ease as were involved in the prior case, the applicability of stare decisis is not affected by the fact that different parties are involved in the case where the precedent was established. Res judicata applies to decisions of both law and fact. Stare decisis, on the other hand, is applicable only on questions of law. Res judicata is a rule of law that must be appliedeven where the decision binding as res judicata was erroneous, whereas stare decisis is a judicial policy in which a certain flexibility is inherent, and which, therefore, does not prevent a Court from overruling its prior decision if, upon re-examination thereof, it is convinced that the decision was erroneous. It has also been pointed out, as a difference between res judicata and stare decisis, that stare decisis is based upon the legal principle or rule involved in a prior case and not upon the adjudication which resulted therefrom, whereas res judicata is based upon the adjudication."

64. Thus, in a given case, it is the thing the Court adjudges which constitutes estoppel under the doctrine of res judicata, but the reasons which the Court may give for the decision are not in themselves to be invoked as the estoppel under the doctrine of stare decisis.

65. See kazoo & M. V. R. Co. v. Adams (180 U S 1, 45 L ed. 395) and Heisler v. Thomas Collier Co. (260 U S 245, 67 L ed. 237).

66. Here lies the distinction Cooley in his treatise "On the Constitutional Limitations", at page 50 while commenting on accepting adjudged cases as precedents, quotes Chancellor Kent saying "A solemn decision upon a point of law arising in any given case becomes an authority in a like case, because it is the highest evidence which we can have of the law applicable to the subject, and the Judges are bound to follow that decision so long as it stands unreversed, unless it can be shown that the law was misunderstood or misapplied in that particular case. If a decision has been made upon solemn argument and mature deliberation, the presumption in favour of its correctness, and the community have a right to regard it as a just declaration or exposition of the law, and to regulate their actions and contracts by it. It would,, therefore, be extremely inconvenient to the public if precedents were not duly regarded, and implicitly followed. It is by the notoriety and stability of such rules that professional men can give safe advice to those who consult them, and people in general can venture to buy and trust, and to deal with each other. If judicial decisions were to be lightly disregarded, we should disturb and unsettle the great landmarks of property. When a rule has once been deliberately adopted and declared, it ought not to be disturbed unless by a Court of appeal or review, and never by the same Court, except for very urgent reasons, and upon a clear manifestation of error ; and if the practice were otherwise, it would be leaving us in a per--plexing uncertainty as to the law."

67. This, in my view, is a very subtle exposition of a precedent being the highest evidence of the law and holds the field so long it is regarded as a good law on the principle of stare decisis.

68. Having brought out the distinction, I would now refer to Muhammad Shafi's case, in which the dispute related to a common Chak in the same Tehsil. In this case the allotment to the appellants was challenged in appeal by the respondent on the ground that he had a preferential claim to this land because it formed part of this temporary allotment which was allowed and the disputed area was withdrawn from the Khata of the appellants. Later it transpired that the land withdrawn did not from part of his temporary allotment and the appellants thereupon filed a review petition on that basis which was heard after due notice to the respondent and decided in the appellant's favour with the result that the land in dispute was restored to them. The respondent challenged this review order in a revision before the Rehabilitation Commissioner, Multan, without success. The matter was then brought to the High Court in writ jurisdic--tion by the respondent and the learned Single Judge and the Division Bench in deciding the case relied on the earlier judgment of a Division Bench in the case of Abdul Ghafoor with the result that the writ petition was allowed. The Supreme Court reversed this decision following the precedent case of Abdul Hafiz. In this case too the binding effect of the precedent is highlighted.

69. In Mst. Dani's case, the petitioners had confirmed lands in Chak No. 133-RB, Tehsil Pakpattan, District Sahiwal. No appeal or revision was filed against these allotments of land to them, but as a result of the omnibus.Order of the Rehabilitation Commissioner for a general revision of allotments in the Chak,-they filed a joint writ petition which was allowed by the High Court. Dilawar Hussain, a respondent in the writ petition, appealed to the Supreme Court and succeeded as the case was remanded to the High Court for a fresh disposal. At this stage the High Court impleaded a number of interested persons as raspondents before it. The writ petition was allowed and the order of Mr. I.

70. U. Khan was quashed. Dilawar Hussain again filed a civil petition for special leave to appeal in the Supreme Court which was accepted by this Court and the order of the High Court was set aside, and the order of the Rehabilitation Commis--sioner was restored for general revision of the allotments in the Chak.

71. The judgment of this Court is reported as Barkat Ali v. Maula Bakhsh. The petitioners filed a review petition against that order which was also dismissed by the Court on the 22nd of October, 1973, with the remarks that "in case they were of the opinion that their rights are not affected by the judgment already delivered by the Supreme Court then they should raise the plea before the Rehabilitation and Settlement Authorities." However, on 28th of August, 1975, the Settlement Commissioner (Land), Multan Division, dismissed their revision and refused to confirm land in dispute in their favour. This order gave rise to two separate writ petitions which were dismissed by a learned Single Judge of the Lahore High Court on 16th of February, 1976. The contention raised was that it was only Dilawar Hussain respondent who bad gone up in civil petition for special leave to appeal from the judgment of the Lahore High Court dated 17-3-1965 which nonetheless was never set aside by the Supreme Court qua the remaining private respondents. But this argument, which appeared to be 'quite attractive as a matter of first impression, was rejected on the ground that the parties, herein, were represented before the Supreme Court also in the reported case of Barkat Ali. Therefore, the judgment dated 28th October, 1971 delivered by the Supreme Court in that case was binding on the parties as well with the result that the writ issued by the High Court was recalled and the order dated 11-11-1956 of Mr. 1. U. Khan for a general revision of allotments in the Chak was held as binding between the parties hereto. On this ground the Additional Commissioner rejected the revision petitions and the High Court dismissed the writ petitions.

72. This petition was rejected on the clear application of the principle of res judicata in the facts and circumstances of the case as the dispute was held to be inter partes and concluded by the judgment reported as Barkat Ali v. Mauls Bakhsh on questions of fact and law.

73. Upon a consideration of what has been stated above, the formulation on behalf of the appellants cannot be accepted as it stands. In a con--troversy raising a dispute inter partes, the thing adjudged is conclusive as between the parties both on questions of fact and law, but as to what the Court decides generally is the ratio decidendi or rule of law for which it is the authority. It is this ratio decidendi which is applicable to subsequent cases presenting the same problem between third parties not involved in the original case nor will either of the original parties be bound in at subsequent dispute with a third party. It will be misnomer to say that this rule of law acts in rem, that is, as' against the whole world as conceptu--ally the applicability of the rule of law is either founded on the doctrine of precedent as under the English law or rule of stare decisis, and none of the doctrines in its application is inflexible for what has been recalled elsewhere in the judgment.

74. Therefore, the judgment cannot act in rem as sought to be argued.

75. The case cited as Dildar Muhammad v. Heeman (PLD 1967 Lah.18needs to be distingu--ished.

76. Here by the amendment introduced in paragraphs 46 and 46-A of the Settlement and Rehabilitation Scheme, a deeming effect was given to the rule of inheritance so as to have always applied to all cases of inheritance of refugee right-holders whether decided under this or any other like scheme which had at any time been in force as by a change in the rule of decision: This change of law during the interregnum gave vested rights to the refugees right-holders to have their cases decided on this new rule of decision which reopened the controversies already concluded under the old dispensation. The foundation for the non--applicability of rule of res judicata in this case is highly doubtful in view of the judgment of this Court in Cement Agencies Ltd. v. Income-tax Officer, Central Circle ll, Karachi (PLD 1969 SC 322It cannot, accordingly, be relied on as laying down a general rule governing inter parties disputes which were past and closed transactions. To say that the judgment of the Supreme Court is in the nature of a decision in rem, I am unable to agree as its continuance as a declaration of law is not inflexible, and Supreme Court has power to review it in a given case for what has been discussed earlier whereas by its nature a decision in rem is absolute and applicable against the whole world. If the reference in rem is to its being authoritative on account of its constitutional status then I regret I do not agree wita. The use of the term in rem as it has altogether a different con--notation.

77. It was feebly argued that the order of Mr. 1. U. Khan was a sub--legislative measure which rendered the judgment of the High Court in writ petition ineffective so as to neutralise the bar of res judicata.

78. This argument was not raised before the High Court in its present form nor leave was granted to consider the vires of the order on this formulation. Section 7(1) of the Rehabilitation Act of 1956, worded as it is, gives power to the Rehabilitation Commissioner to make general or. Special orders for the proper discharge of his functions. Apart from the bald conten--tion no reasons were advanced as to how it can be construed as a sub--legislative measure.

79. In Abdul Hafiz's case, it was contended on behalf of the Rehabilitation Commissioner that the order passed was relatable to his functions exercis--able under section 7(1) of the Act and was in its nature a special order as it only affected a particular Chak. This Court accepted the contention of the Rehabilitation Commissioner as to its being a legal power from the following observations at page 491 of the report: "The argument raised on behalf of the appellants and the Rehabili--tation Commissioner must, in our opinion, be allowed to prevail. It makes little difference if the learned Rehabilitation Commissioner did not expressly refer to section 7(1) of the Ordinance and para. 23 of the Scheme while issuing the new instructions about the relevant date, provided he had the legal power in that respect such an instruction would be on a par with instructions embodied in Part II of the Rehabilitation Scheme, which could be obviously varied from time to time in the light of experience, and in the interest of better implementation of the fundamentals of the scheme included .In Part I thereof."

80. Nothing has been urged before us to hold otherwise. I do not find any words in this provision to hold that the exercise of this duty was a delegation of legislative function. It is also significant to mention that no argument was raised before this Court in Abdul Hafiz's case that the making of the order was a sub-legislative fiat, and it is now being raised for the first time to get over the bar of res judicata and I see no merit in this] argument. I may here impress that it is not the tenor of the order which will determine its nature as being a sub-legislative measure but the provision of the statute under which it was passed.

81. A reference to "Cases in Constitutional Law" by Keir and Lawson, sixth edition, at page 38, is also irrelevant as the question of delegated legislative function has to be decided with reference to the provision of the statue itself.

82. From the tenor of the order of Mr. I. U. Khan directing a general revision of allotments, it was contended that by its very nature it applied to a large number of allottees and, therefore, it should be assumed that the proceedings in the High Court were representative in character and so were they also in appeal in Abdul Hafiz's case. Therefore, the judgment of this Court in that case applied not only to the parties who had not appealed but also to the Rehabilitation Authorities under the Act. In this behalf reliance was placed on Explanation 6 to section 11, C. P. C. And to the case of the Privy Council reported as Kumaravelu v. Ramaswami (AIR 1933 P C 183The ratio decidendi of this case instead of supporting the above submission goes against the very formulation. It was held by their Lordships that the "Explanation is controlled by Order 1, rule 8", whose observance was essential, and "bona fide litigation will not excuse the neglect of statutory conditions". In this connection, it was further observed :- "No encouragement should, they think, be offered to litigants, if they would obtain the full benefit of Order 1, rule 8, to be careless in securing full compliance with the conditions of the Rule both in the letter and in the spirit."

83. Their Lordships also approved a Madras case reported as Gopalacharyulu v. Subbamma (AIR 1920 Mad. 568in which it was held that "if what may be called an Order I, rule 8 suit was to have the benefit of the explanation the conditions of the Rule must have been complied with fully". In the result, their . Lordships set aside the Full Bench judgment of the Calcutta High Court and upheld the conclusion of the subordinate Judge that the defence of res judicata was not established as the grievance of the plaintiff in the suit was individual and not in a representative capacity.

84. In Civil Appeal No. 164 of 1974, it was sought to be argued that if no benefit could be had from the order of Mr. I. U. Khan, then the order of his predecessor Mr. Akhtar Hussain, which was not challenged in the writ petition, was effective and benefit could be taken under it as it was not superseded by the subsequent order of the Rehabilitation Commissioner dated 27-1-1954. This argument was raised before the High Court and repelled for the reasons given as under :- "The arguments of the learned counsel for the petitioners that the order of Mr. Akhtar Hussain, is still available to be enforced, has no substance in the circumstances of the case. That order was admittedly not enforced at any stage and that was why it was felt necessary by Mr. I. U. Khan, then Rehabilitation Commissioner in 1956 to pass the order in question for revising the allotments in the Chak. It is also not denied that the petitioners never took any benefit on account of the order of Mr. Akhtar Hussain. Since the same was never enforced, therefore, question of taking any benefit from the said order cannot arise. As the order was never implemented or sought to be implemented as the circumstances of the case show, therefore, the arguments that the Chairman, Allotment Committee, violated the said order by restoring the allotments of the respondents is not tenable. If the" order had been enforced or tried to be implemented then question of its violation may have arisen. Even otherwise after the order of Mr. I. U. Khan which was on the identical lines was passed Mr. Akhtar. Hussain's order became redundant. The circumstances of the case show that Mr. I. U.

85. Khan passed his said order mainly for the reason that Mr. Akhtar Hussain's order had not been given effect to. As such an attempt to approach the Chief Settlement Commissioner under the garb of the provisions of section 10/11 of the Land Settlement Act for revising the allotments in the Chak in question, in accordance with the order of Mr. Akhtar Hussain, cannot be. Held to be tenable in law. No such proceedings can be maintained in view of the discussion made above.".

86. I do not find any flaw in the reasons of the High Court, which I would uphold. Additionally, it may also be pointed out that the respondents did not, in the earlier writ petition, base their defence on this order, and for that matter Explanation IV to section 11 would be applicable namely, that any matter which might. And ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. This explanation is based on the principle that where the parties have had an opportunity of controverting at matter, that should be taken to be the same thing as if the matter had been actually controverted and decided. There is no reason, therefore, to go into the question as to whether it had a limited applicability as being confined to the parties to the proceedings or it had general application.) Accordingly, on this ground as-well the appellants are disentitled to raise the plea for taking benefit under the subsequent proceedings.

87. The High Court in dislodging the appellants held that the judgment of the Supreme Court was not a judgment in rem, but in personam The terms "in rem" and '`in personam" are of Roman Law used in connec--tion with actin, that is, actin . In rem and actio in personam to denote the nature of actions, and with the disappearance of the Roman forms of procedure, each of the two terms "in rem" and "in personam" got tagged with the word judgments to denote the end-products of actions in rem and actions in personam. Thus, according to the civil law an actin in which a' claim of ownership was made against all other persons was an action in rem and the judgment pronounced in such action was a judgment in re and binding upon all persons whom the Court was competent to bind, but if the claim was made against a particular person or persons, it was an action in personam and the decree was a decree in personam and binding only upon the particular person or persons against whom the claim was preferred or persons who were privies to them.

88. Monir in his "Principles and Digest of the Law of Evidence" at page 563, gives the import of these terms as under :- "The point adjudicated upon in a judgment in rem is always as to the status of the res and is conclusive against the world as to that status, whereas in a judgment in personam the point, whatever it may be,. Which is adjudicated upon, it not being as to the status of the res, is conclusive only between parties or privies. A decision in rem not merely declares the status of the person or thing, but ipso facto renders it such as it is declared ; thus, a decree of divorce not only annuls the marriage, but renders the wife feme sole : adjudication in bankruptcy not only declares ; but constitutes the debtor a bankrupt; a sentence in a prize Court not merely declares the vessel prize, but vests it in the captor."

89. Section 41 of the Evidence Act does not use the term "judgment in rem", but it incorporates the law on the subject of judgments in rem, and makes them relevant not only against strangers but also conclusive of certain matters such as whether a person was entitled to a legal character or to any specific thing not as against any specified person but absolutely.

90. Judgments in rem are an exception to the rule of law that no man should be bound by the decision of a Court of Justice unless he or those under whom he claims were parties to the proceeding in which it was given. This rule of law is referable to the maxims of Roman Law namely, "Res inter alios judicata nullun inter alios prejudicium facit", or "Res inter alios acta alteri nocere non debet". Such exception of the judgment in rem in the Roman Law was the foundation of the exception in English Law. Section 41 of the Evidence Act is the foundation for the exception of judgment in rem in our corpus juris. The reason why a judgment should not be used to the prejudice of a stranger is that he is denied the fundamental right to make a defence, or to examine or cross-examine witnesses or to appeal from a judgment which aggrieves him. This is the requirement of most manifest justice and good sense.

91. If he was party then the judgment of the competent Court as a plea is a bar or as an evidence conclusive between the same parties upon the same) matter directly in question in another Court or in another action between the same parties in the same Court. In legal parlance this bar is known as estoppel by judgment or res judicata. Cooley in his "Treatise on the Constitutional Limitation", at page 47, deals with the bar in these words "And as to the first, we understand the rule to be, that a decision once made in a case, by the highest Court empowered to pass upon it, is conclusive upon the parties to the controversy and their privies, who are not allowed afterwards to revive it in a new proceeding for the purpose of raising the same or any other questions. The matter in controversy has become res judicata, a thing definitely settled by judicial decision ; and the judgment of the Court imports absolute verity.

92. Whatever the question involved, whether the interpretation of a private contract, the legality of an: individual act, or the validity of a legislative enactment, the rule of finality is the same. The controversy has been adjudged, and once finally passed upon is never to be renewed."

93. And further "The rule of conclusiveness to this extent is one of the most inflexible principles of the law ; in so much that even if it were subsequently) held by the Courts that the decision in the particular case was erroneous, such holding would not authorize the reopening of the, old controversy in order that the final conclusion might be applied thereto."

94. Section 11 of the Civil Procedure Code incorporates this principle.

95. In Tarini Charan v. Kedar Nuth (AIR 1928 Cal. 777the bar of res judicata is stated in these terms "It matters nothing whether the error, if any, was an error on a point of fact or on a point of law" . . . . . .

96. "Courts of law are in no way authorized to alter the rights of parties. They profess, at all events, to ascertain the law, and if the binding, character of a decision upon a concrete question as to the terms of a particular holding is to fluctuate with every alteration in their current of authority the Courts will become an instrument for the, unsettlement of rights rather than for the ascertainment thereof. The principle relied upon is abhorrent to section 11, Civil Penal Code and to the general intention of the doctrine of res judicata. If authority be wanted for its rejection a very plain authority can be found in the case of Gowri Koer v. Audh Kaur (1884 10 Cal. 1087)". . . . .

97. "The question whether decision is correct or erroneous has no bearin upon the question whether it operates or does not operate a res judicata. The doctrine is that in certain circumstances the Cour shall not try a suit or issue but shall deal with the matter on the footing that it is a matter no longer open to contest by reason of a previous decision. In these circumstances it must necessarily be wrong for a Court to try the suit or issue, come to its own con--clusion thereon, consider whether the previous decision is right and give effect to it or not according as it conceives the previous decision to be right or wrong. To say, as a result of such disorderly procedure, that the previous decision was wrong and that it was wrong on a point of law, or on a pure point of law, and that therefore, it may be disregarded, is an indefensible form of reason--ing. For this purpose, it is' not true that a point of law is always open to a party."

98. "On the other hand. It. Is plain from the terms of section 11 of the Code that what is made conclusive between the parties is the decision of the Court and that the reasoning of the Court is not necessarily the same thing as its decision. The object of the doctrine of res judicata is not to fasten upon parties special principles of law as applicable to them inter se, but to ascertain their rights and the facts upon which these rights directly and substantially depend, and to prevent this ascertainment from becoming nugatory by precluding the parties from reopening or recontesting that which has been finally decided."

99. Mr. S. U. War, learned counsel for the respondents relied heavily on these observations to support his view point that the decision in the earlier writ petitions was inter partes, and conclusively determined the rights of the parties, and, therefore, those judgments in the earlier writ petitions were judgments In personam and could not be reopened in view of the bar of res judicata. He next relied on Gawri Koer v. Audh Koer and others (PLD 1965 SC 261The decision in this case contains the principle that where the decision of a Division Bench, on a point of law, was disapproved by a Full Bench, the decision of the Division Bench nonetheless is no less a res judicata although it may have been founded, on an erroneous view of the law, or on a view of law which the Full Bench subsequently disapproved. Having noted the conceptual principles, I now proceed to apply them to the facts of these appeals.

100. The allotments under the Schemes related to the evacuee agricultural land and until acquired and transferred under the Displaced Persons (Land Settlement) Act, 1958, no one could claim the ownership of the, it _ r r R to Cal 1087 parcels of land allotted to them. There was, therefore, no adjudication in regard to the status of res soy as to render the proceedings an action in rem, that is, to make it a determination conclusive as to whether any person was entitled to a specific thing not as against any specified person, but absolutely. The controversy, however, centred on the scaling down of the areas of the sitting allottees as a result of the revision of allotments. The grievance was individual and related to the satisfaction of claims is full or in part. Therefore, the proceedings were actions in personam against definite persons arrayed as respondents and the determination judgment in personam. So, long this determination was not set aside in appeal, the judgment remained in the field irrespective of the quality of determination as to whether it was incorrect on questions of fact or law. The rights of the parties thereunder assumed finality and took the colour of a "past and closed transaction." The fact that the Supreme Court in an appeal, titled Abdul Hafiz v. Rehabilitation Commissioner and others, against the judgment of the High Court set aside the same judgment in another writ petition would not reopen the concluded rights of the parties under the decision of the High Courts against which no appeal was filed nor could the appellants who were respondents in that writ petition avail the benefit of the law laid down by the Supreme Court under Article 189 of the Constitution. They can have, therefore, no grievance if the Settlement authorities maintained the earlier allotments of the respondents by cancelling the allotments of the appellants to the extent of the lands sliced down from their holdings. The fact that the law laid down by this Court is prospective also cannot be doubted. In this connection this Court had the occasion to consider its earlier decision. It namely, Jalal Din v. The Chief Settlement Commissioner etc. (1) in Muhammad Yousaf v. C. S. C. Pakistan Lahore (PLD 1968 SC 101) and the question was as to from what point of time it was effective. It was held "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 corning 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."

101. In the case reported as Income-tax Officer v. Cement Agencies Ltd. (PLD 1969 SC 322the Income- tax authorities took the view that since the managing agent and the managed company were both residents outside Pakistan, the commission earned by the managing agent in regard to two cement factories of the managed company in Pakistan was not taxable in Pakistan. This Court in the case of Octavius Steel 8c Company Ltd. v. The Commis--sioner of Income-tax, Dacca (4), took a different view with the result that a second set of notices were issued to the assessee. The question that arose (1)(2)

102. (3)(4) PLD 19(0 SC 371 for consideration was whether this was permissible. This Court held as, under "In my view such a course is not sanctioned by law. I do not see how on the basis of the judgment of this Court in Octavius Steel & Company Ltd.'s case past and closed transaction could be reopened. The proceedings in respect of the disputed years were finally disposed of in favour of the respondent and until they are set aside in accordance with law, no fresh proceedings could be initiated in respect of these years.

103. The view that I have taken receives support from the decision of this Court in Civil Miscellaneous Petition No. K-21 of 1968 (Works Co--operative Housing Society and another v. The Karachi Development Authority) decided on the 20th January, 1969. In this case my Lord the Chief Justice, in his judgment, referred to the decision of the Privy Council in the case of Lemn v. Mitchel, L R 1912 A C 400. The Privy Council observed that even a legislative measure like an Ordinance expressly given retroactive effective could not operate so as to annul a valid and existing judgment as between parties whose rights had been duly determined and according to the law which existed before the new Ordinance was passed. To the same effect is the decision in the case of Eyre v.

104. Wynn Mackenzie (1986) I Ch. D 135. The decision of the Privy Council in the case of Commissioner of Income-tax v. Tribune Trust PLD 1947 P C 247 clearly supports the contention of the respondent."

105. Accordingly, the judgment in appeal reported as Abdul Hafiz v. Rehabilita--tion Commissioner was operative as from the date it was announced and it did not have the effect of reopening the rights of the parties concluded finally under the High Court's judgment.

106. The authority of law laid down by this Court under Article 189 bein prospective, the decision of the High Court nonetheless stands overruled on the same question of law, but that will not affect the rights of the parties already determined by the High Court's judgment.

107. In Civil Appeal No. 158 of 1974 which arose out of Writ Petition No. 243-R of 1971, the grievance of the respondents 2 to 6, who were petitioners in that writ petition, was that even though they were not parties in Writ Petition No. 175 of 1957, the High Court by its order dated 4th of December, 1962, held them to be bound by the order of Supreme Court in the appeals filed against the order of the High Court in other writ petitions in regard to other Chaks, with the result that the Settlement Commissioner who was dealing with the application of the appellants under sections 10 and 11 of the Act for the revision of the allotments of land in Chak No. 147/E.B., disturbed the permanent holdings of these respondents holding them to be parties in those proceedings. It is of significance to note that these respondents were also not parties in the application filed by the appellants under sections 10 and 11 of the Act, and ought it be said that the respondents 5, 9, 11, 12, 16 and 17 in Writ Petition No. 243-R of 1971 were also not parties in Writ Petition No. 175 of 1957. Out of these respondents in Writ Petition No. 243-R of 1971, respondent Jamil Khan's name does not appear as one of the appellants in the appeal (Civil Appeal 158/74). It may also be stated that the persons affected in Chak No. 147/E.B. In Writ Petition No. 175 of 1957 did not prefer any appeal before the Supreme Court and in their case the decision of the High Court became final qua the parties.

108. Therefore, those of the respondents-appellants who were parties in Writ Petition No. 175 of 1957 could not by the device under sections 10 and 11 of the Act obtain a general revision of the allotments of the land in accordance with the instructions of Mr. I. U. Khan.

109. Again it was not the case of the applicants-appellants before the Settlement Commissioner that the confirmed holdings of the respondents 2 to 6 in respect of which the litigation had earlier finalized was obtained by means of "fraud" or "misrepresentation" which forms the essence of jurisdiction to reopen the question of allotments. For this reason as well the order dated 29-6-1970 by which the Settlement Commissioner assumed jurisdiction, and the consequential order passed thereafter dated 9-4-1971, cannot be upheld. Equally, as respondents 2 to 6 in this appeal were not parties in those proceedings, the High Court erroneously held them to be bound by the order of the Supreme Court passed in other writ petitions in disregard of the principle of inter partes determination which did not bind the strangers. The Settlement Commissioner was also clearly in error to hold them to be bound by the order of the Supreme Court on the basis of the order of the High Court and to pass an adverse order against them. Therefore, the High Court was justified in setting aside the order dated 29-8-1970 by which the Settlement Commissioner assumed jurisdiction, and the consequential order dated 9-4-1971 passed thereafter. This appeal, accordingly, is without any merit.

110. Civil Appeal No. 157 of 1972, is distinguishable from the other appeals on facts. In the leave granting order it was seriously disputed that she was not a party in the proceedings in Writ Petition No. 175 of 1957, and, there--fore, the judgment of the High Court in that writ petition could not bind her. The learned Single Judge while disposing of her writ petition describ--ed Noor Muhammad, who was arrayed as respondent No. 13 in Writ Petition No. 175 of 1957 as her Mukhtar-i-Am without any reference to the material from which this inference was drawn. The Letters Patent Bench, while tracing her claim of 526 produce-index-units as having been partly inherited from her father Saboo and partly from her husband Muhammad Bakhsh, who had since died, had failed factually to connect her with Noor Muhammad as being her Mukhtar-i-Am, but on the finding of the learned single Judge that she was represented by Noor Muhammad, she was held to be a party in the proceedings before the High Court in Writ Petition No. 175 of 1957. A reference to the persons arrayed as parties in Writ Petition No. 175 of 1957 would show that her name is not mentioned, , although Noor Muhammad is listed as respondent No. 13 without there being anything to disclose that he also represented the interest of the appellant in the writ petition. This Noor Muhammad son of Ali Bakhsh had an independent allotment in Killas Nos. 6, 7 and 14 of Square No. 12 which was cancelled without notice to him whereupon he represented to the Deputy Rehabilitation Commissioner who cancelled the allotments of the entire Chak and directed that fresh proposals be made. However, without following that direction, the Assistant Rehabilitation Commissioner by order dated 21-3-1953 confirmed his land in favour of Muhammad Yar Khan in violation of the Scheme and rights of sitting allottees. Accordingly, his dispute with the petitioners in that writ petition was separate and bad nothing to do with the allot--ment of the land to the appellant in this appeal. How the learned Single Judge came to the conclusion that Noor Muhammad was her Mukhtar-i-Am is not apparent from the record. This being so,, the proceedings strikes at the very root of the reasons given by the High Court for holding that she was bound by the judgment of the High Court. In this view of the matter, it can hardly be doubted that she would not get the benefit of the order of the Supreme Court upholding Mr. I. U. Khan's order.

111. Accordingly, I would allow Appeal No. 157 of 1972 with costs, and set aside the orders of the High Court passed in Writ Petition No. 670-R of 1965 and the Letters Patent Appeal No. 1019 of 1966 ; with the result, that the land transferred from her Khata shall be restored to her.

112. In conclusion, for the reasons given above, I would dismiss appeals Nos. 157 of 1974, 158 of 1974, 159 of 1974, 160 of 1974, 161 of 1974, 162 of 1974, 163 of 1974, 164 of 1974, 165 of 1974 and 166 of 1974, with costs.