This Constitutional petition is directed against the judgment of the learned Additional District Judge, Rawalpindi, dated 17-9-1984 rejecting the plaint of the petitioner under Order VII, Rule 11, C.P.C. On the ground that the suit filed by the petitioner was- hit by the principles of res judicata contained in section 11, C.P.C.
2. Facts necessary for the disposal of this petition, briefly stated, are that an evacuee plot of land measuring 11 acres was transferred by the Government of Punjab in the year 1954 to the Muslim High School, Saidpur Road, Rawalpindi City, for being used as a playground of the school. The dispute between the parties arose when area measuring one Kanal out of the aforementioned plot was transferred to Mst. Asghari Khanum, respondent No. 2, under Settlement Scheme No. VIII by an order of the Deputy Settlement Commissioner dated 25-6-1974, Aggrieved by this transfer, the Province of the Punjab through the Director of Education (present petitioner) and the Muslim High School filed a revision petition before the Settlement Commissioner to challenge the order of the D.S.C. Passed in favour of respondent No. 2. Admitted position is that the revision petition was filed some time after 1-7-1974 i.e. After coming into force of the Evacuee Property and Displaced Persons Laws (Repeal) Ordinance, 1974. The Settlement Commissioner entertained the revision and by order dated 10-6-1975 suspended the operation of the order of the D.S.C. Respondent No. 2 challenged the assumption of jurisdiction by the Settlement Commissioner in Writ Petition No. 721/R of 1975 which was accepted by a learned Single Judge of this Court on 25-4-1982. It was held that the Settlement Commissioner had no jurisdiction to entertain the revision petition or to pass any order after the repeal of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. It was also observed that, in fact, after 1-7-1974, the forum/ functionary before whom the revision petition was filed was no more in existence and, as such the revision petition even if within limitation, could not have been instituted.
3. Feeling aggrieved, Headmaster, Muslim High School, filed a petition for Special Leave to Appeal in the Supreme Court of Pakistan. Leave was granted to examine the question of jurisdiction of the Settlement Commissioner as also the question as to whether the property in dispute was available for transfer and whether it could not be transferred to the respondent. Appeal (C.A. 161-1982 was, however, finally dismissed by the Supreme Court vide judgment dated 20-12-1983 on the short ground that the Settlement Commissioner had no jurisdiction to entertain or hear the revision petition. Operative part of the judgment of the Supreme Court is reproduced hereunder:-- "We have heard the learned counsel for the parties but in view of the decisions of this Court already referred to above on the questions in issue there is hardly anything which the learned counsel for the appellants could urge before us in support of this appeal. The intention of the Repealing Act of 197,5 clearly was that after 1-7-1974 no fresh revision petition could be bought before the Settlement Commissioner. Apart from many reasons in support of this view, given by the learned Judge in the High Court, with which we agree, this position is evident from the circumstances that even the forum for such a revision, namely, the Settlement Commissioner, before whom the appellant instituted his revision petition, was not kept alive by the Repealing Act."
4. After the dismissal of the appeal by the Supreme Court, the Province of the Punjab through the Director of Education (S), Rawalpindi Division brought a suit against Mst. Asghari Khanum respondent on 18-7-1984 to challenge the validity of the transfer of the land in dispute in her favour.
It was alleged in the suit that the land in dispute measuring about 1 Kanal formed an integral part of a bigger plot of land transferred to Muslim High School No. 1, Rawalpindi in February, 1954 for the purpose of playground and that the respondent had secured the transfer of the land in dispute through fraud and misrepresentation. Precise allegation made was that the respondent had misrepresented to the Chief Settlement Commissioner that she was in possession of the land in dispute and had raised some construction thereon, although in point of fact it "was neither under her occupation, nor any construction was raised by her thereupon." A prayer was thus made in the suit hat a decree for declaration be passed to the effect that the PTD No. 5896 dated 6-1-1975 issued in favour of the defendant (Mst. Asghari Khanum respondent herein) "is void, illegal and inoperative on the rights of, the plaintiff as having been procured through fraud, misrepresentation and without lawful authority and the same may be declared null and void against the rights of the plaintiff ------.".
5. Respondent No. 2 admittedly did not file written statement in the suit and instead moved an application under Order VII, Rule 11, C.P.C. Seeking rejection of the plaint on the ground that it did not disclose any cause of action and, in any case, the 'suit was hit by the principle of res judicata.
Learned trial Judge 'dismissed this application by order dated 30-7-1984 holding that the only point decided by the High Court and the Supreme Curt was "whether the Deputy Settlement Commissioner (it should be Settlement Commissioner) can cancel the P.T.D. After the repeal of said Act. There are no findings on the merits of the suit given by these honourable Courts.
Therefore, this suit is not hit by the decision of the said Courts." It was also observed by the learned trial Court that the plea of respondent No. 2 (defendant) that the plaint was liable to be rejected on the aforesaid ground was not sustainable in law as the matter was not covered by Order VII, Rule 11, C.P.C.
6. Feeling aggrieved, respondent No. 2 preferred a revision petition which was accepted by the learned Additional District Judge vide the impugned judgment. Learned Additional District Judge proceeded on the premises that question of fraud was raised before the Supreme Court but since there was no reference to it in the judgment of the Supreme Court, it would be deemed to have been abandoned. It was further observed by the learned Additional `District Judge on reference to the leave granting order of the Supreme Court that since the Supreme Court has summoned the entire record, question of fraud must have been present to the mind of the honourable Judges of the Supreme Court when they' finally decided the appeal. Proceeding on these assumptions, learned Additional District Judge took the view that the Supreme Court had decided the appeal on merits holding the PTD issued in favour of the respondent "to be valid by inference" and, therefore, the Civil Court could not sit in judgment over the orders of the Superior Courts. It was accordingly held by the learned Additional District Judge that the petitioner's suit *was hit by section 11 C.P.C. On general principles.
7. It appears that the petitioner had earlier filed an appeal (R.F.A. No. 11 of 1985) in this Court against the aforementioned judgment of the learned Additional `District Judge but subsequently withdrew it "in order to' file a writ petition arising out of the same cause". Appeal was accordingly disposed of as withdrawn. Petitioner then filed the present Constitutional petition to assail the validity of the, impugned judgment of the learned Additional District Judge whereby the plaint was ordered to be rejected.
8. I have heard the learned counsel for the parties at considerable length. Learned counsel appearing in support of this petition has submitted that in the previous round of litigation, the only point decided by the High Court and the Supreme Court of Pakistan was regarding the jurisdiction of the Settlement Commissioner to entertain and hear the revision petition after the repeal of the Evacuee Property and Displaced Persons Laws on 1-7-1974. Accordingly to the learned counsel, the issues which the petitioner has now agitated in the suit namely that the land in dispute was not available for transfer and that the respondent secured its transfer through fraud and in misrepresentation were neitherexamined nor decided by the High Court and the Supreme Court. It was thus contended by the learned counsel that the suit instituted by the petitioner was not hit by the principles of res judicata.
9. Learned counsel for respondent No. 2 has not denied that the orders of the High Court and the Supreme Court referred to above do not contain any finding/decision on the meats of the transfer of tire land in dispute nor is the question fraud and misrepresentation examined and decided therein but he submitted that the plea which the petitioner has now taken in the suit to question the vires of the--- orders of the D.S.C. Transferring the land in dispute to the respondent was specifically raised in the written statement filed by the petitioner in the previous writ petition (271-R of 1975) as also in the civil petition for special leave to appeal. Learned counsel for the respondent further pointed out that the leave granting order of the Supreme Court also showed that the leave was granted to examine almost the same question which tile petitioner has now raised to the suit and for that purpose Supreme Court had also summoned the entire record relating to the property in dispute. Learned counsel for the respondent thus argued that the High Court and the Supreme Court were quite conscious of the plea taken by the petitioner and since it was not accepted, it should be deemed to have been rejected by implication and in any case, petitioner's suit in the facts and circumstances of the case would be barred-by constructive res Judicata. In support of his submission, learned counsel has relied upon "Asif Jah Siddiqui v. Government of Sind and others--- PLD 1983 SC 46 and he also referred to Explanation Nos. IV and V to section 11, C.P.C.
10. I have considered the submissions made by the learned counsel for the parties and have perused the impugned judgment of the learned Additional District Judge as also the judgments of the High Court and the Supreme Court rendered in the previous litigation between the parties and other relevant record placed on the present file. It is undeniable that the validity of the order of the D.S.C. Transferring the land in dispute to respondent No. 2 which forms the subject-matter of the suit filed by the: petitioner was neither examined nor High Court and the Supreme Court in their judgments afore-- referred. In fact the only point decided therein, as noted above, was that after the Evacuee Property and Displaced Persons Laws, no revision was competent before the Settlement Commissioner which office was no more in existence. I do not accept the reasoning of the learned counsel for the respondents that merely because particular pica was taken in the pleadings, it should be deemed to have been rejected by implication. There is nothing in the judgments of the High Court and tile Supreme Court to justify such an inference. Since the matter in issue in the suit was not adjudicated upon and decided by the High Court and/or the Supreme Court in the previous round of litigation, the principles of res judicata would not be attracted to bar the present suit.
11. As regards the bar of constructive res judicata, it may be stated that it is applicable in those cases where a matter which might or ought to have been alleged in the previous proceedings but was not alleged. Such matters by virtue of the doctrine judicata are deemed to have been alleged, heard and decided. In the instant arse, on the respondents' own showing, petitioner had raised the plea of fraud and misrepresentation in the previous proceedings though no decision was given thereon. Bar of constructive res judicata enunciated in Explanation IV is, therefore, not attracted to the present suit. Refer AIR 1939 Cal. 1 where a point though averred in the pleadings was neither put in issue nor was decided and it was held that "the principle of constructive res judicata as laid down in Explanation IV of section 11, C.P.C. Does not apply as the point was actually raised".
Reference for this may also be made to AIR 1921 Mad. 21.
12. Similarly, constructive res judicata referred to in Explanation V to, section 11, C.P.C., too, has no application to the, present case. In the previous proceedings, petitioner had not sought any specific relief in terms of the prayer made in the present suit. The averments made by the petitioner in the written statement filed in the earlier writ petition and his C.P.S.L.A. Clearly show that he took the plea of fraud and misrepresentation therein to solicit the dismissal of the writ petition on account of fraudulent conduct of respondent No. 2 and he had not specifically claimed any relief that the order of the D.S.C. Transferring the land in dispute to the respondent be set aside.
There is thus no question that the relief claimed by the petitioner was not granted in the previous proceedings so as to attract the application of Explanation V. It was held in Madras case cited above that "A mere ground of attack relating to the main relief should not be regarded as a separate relief, and the refusal to entertain a ground which related to the relief which was adjudicated upon by the judgment, cannot be regarded as a refusal of relief." It may be observed that in the earlier proceedings, the High Court and the Supreme Court had not even discussed much less refused the ground of fraud and misrepresentation.
13. Judgment of the Supreme Court in the case of Asif Jah Siddiqi (PLD 1983 SC 46) cited by the learned counsel for the respondent has laid down that a suit raising the questions which have been previously, decided by the High Court in a Constitutional petition is barred under Order IX Rule 9, C.P.C. As also on principles of res judicata. This dictum is of no help to the respondent because, as held, above, the suit filed by the petitioner has raised an issue which was not decided by the High Court and the Supreme Court in the previous round of litigation.