1. MUHAMMAD AFZAL ZULLAH, CJ. ---In this appeal - through leave of the Court by a vendee in a pre- emption matter the question involved as noted in the leave grant order is as follows: "Whether where a plaint filed in respect of a suit for pre-emption is rejected for non-payment of 1/5th of zar-e-panjam by due date, a second suit for pre-emption on the same cause of action though filed within time, is barred on general principles or by res judicata.
2. "Since there is no authoritative decision of this Court in the matter, leave is granted in this case to consider whether the rejection of plaint under section 22 of the Punjab Pre-emption Act 1913 for non deposit of 1/5th of the probable value of the property within the time fixed by the Court, bars a second suit on the same cause of action, though filed within limitation, on general principles or on the basis of res judicata".
3. Learned counsel stated that he is conscious that the rule of res judicata as contained in Section 11 C.P.C. Did not bar a fresh suit by the, respondent in this case. He also admitted that the rejection of the plaint under Order VII, rule 11, C.P.C. Does not bar the fresh suit either. He, however, argued that the rejection of the plaint in this case was not under Order VII, rule 11, C.P.C.; therefore, the rejection itself being a decree as defined in the C.P.C. Without getting it reversed in appeal, the plaintiff could not have filed a fresh suit.
4. On face the argument seems attractive but on deeper scrutiny the learned counsel could not meet the point that if the definition of decree has to be picked up from C.P.C. So as to include the rejection of the plaint under Order VII, rule ll, C.P.C. Within the extended definition of decree, then in that case there will be no justification not to treat the rejection of the plaint on account of non- deposit of the pre-emption money as a similar decree which results on the rejection of the plaint under Order VII, rule 11, C.P.C. This decree, it is not denied, under rule 13 of Order VII does not bar fresh suit.
5. Having failed on this point learned counsel advanced another argument; namely, that the appellant/vendee could not have been vexed twice, namely, he could not have been put to double jeopardy and thus according to him the general rule of "autrefoi convict and aturefoi acquit" for that matter res judicata would apply.
6. When questioned as to whether there is any rule of res judicata left out of Section ll, C.P.C. In civil matters and whether it is not exhaustive, learned counsel could not advance the appellant's case in this behalf any further because he had not examined the case from this angle.
7. In any case he agreed that whatever the remaining part of the principle of res judicata may be, one condition for its application shall remain operative; namely, that the matter must have been decided between the parties finally. In this case he agreed that the subject-matter of the suit of pre-emption was not decided finally between the parties and the same would apply to the E principle of "autrcfois acquit" in the criminal jurisprudence; namely, that the previous trial should have ended in a final verdict on merits of the real controversy between the parties. In this case the said condition is not satisfied.
8. Learned counsel also mentioned that notwithstanding the aforestated rebuttal of the points raised by him the general principle of res judicata should be given effect in cases like the present one.
9. When asked to base his plea on any jurisprudential source the learned counsel without citing the same could not visualise any except the Roman and Western source. But he was unable even to state that this source of the plea would be available to the appellant/defendant/vendee in this case in Islamic dispensation. As held in several cases by the superior Courts in Pakistan including Haji Nizam Khan v. Additional District Judge Lyallpur and others PLD 1976 Lah. 930 and Muhammad Bashir v. The State PLD 1982 SC 139 now in so far as the principles are concerned Islamic jurisprudence and Islamic Law, cannot be subordinated to any other principle which comes in clash with them. This is so on account of the Constitutional set up of Pakistan.
10. With the foregoing remarks we find no force in this appeal and the same is dismissed with no order as to costs.