The plaintiffs Mst. Rabia Bibi and others, seek by this petition under section 115, C.P.C. the revision of the judgment and decree of the learned Additional District Judge, Faisalabad, dated 2-6-.1981 by which their appeal against the judgment and decree dated 30-5-1977 was dismissed. The .learned trial Judge had by his judgment dated 30-5-1977 dismissed the petitioners' suit.
2. The petitioners are the successors-in-interest of Lai Din, a refugee from Jammu and Kashmir. He was in occupation of the house in suit and had applied for its transfer and a P.T.O. was issued in his favour on 2-4-1960. A copy of the P.T.O. is Exh. P.2. On 22-6-1967, the house was included in the auction list. On the application of Lai Din, Deputy Settlement Commissioner deleted the house from that list and directed Lai Din to deposit Rs.5,000.as the price of the house. This he did. Yet, the house was again included in the auction list and Lai Din had to make another application for its selection.
The Deputy Settlement Commissioner again allowed his application by his order dated 23-11-1967.
Despite that, the house was put to auction and Fateh Muhammad, defendant, purchased it for Rs.13,3W. On the application of Lai Din, it was found that a sum of Rs.6,040 was outstanding against Lai Din as the price of the house. Lai Din was, therefore, directed to pay the remaining price by 1-12- 1967. But when on 29-i1-1967, Lai Din and his wife went to the office of the Settlement Department to deposit Rs.6,040, they were informed that the house had already been auctioned to Fateh Muhammad. Lai Din then made another application to the Additional Settlement Commissioner who by his order dated 5-12-1967 asked for a report and ordered that the auction should not be confirmed. Yet, the auction was confirmed on 5-12-1967.
3. Lai Din then approached the Settlement Commissioner but his revision petition was dismissed on 23-4-1968. Lai Din had then been making applications to different authorities. As a result of one of his applications to the President of Pakistan, he was called to the Settlement office and was directed by the Deputy Settlement Commissioner to deposit Rs.6,040 so that the house could be transferred to him. It was the petitioners' case that he had deposited that sum as also the settlement fee. But when he applied for P.T.D., it was refused by the Settlement office on 30-4-1968.
4. Lai Din then filed a writ petition-in this Court. Lai Din died during the pendency of the writ petition in December, 1971. The writ petition remained . pending in this Court till 19-5-1972 when it was dismissed as having abated. The petitioners applied for the abatement order to be set aside but their application was dismissed on 20-4-1973.
5. The petitioners then brought this suit for a declaration that they were the owners of the house in suit and that the orders of the Settlement Authorities were without jurisdiction and ineffective as against their rights.
6. There were three defendants in the suit, namely, Fateh Muhammad, Mst. Hamida Begum and Pakistan through Central Secretary, Rehabilitation Department, Islamabad. They contested the suit by filing separate (written) statements and on the parties' pleadings, the following issues--- were framed:--
(1) Whether the Civil Court has jurisdiction to try the suit? OPP
(2) Whether the suit is barred by principles of res judicata? OPD
(3) Whether the suit is within time? OPP
(4) Whether the impugned orders dated 23-i1-1967 and 5-12-1967 are illegal and void? OPP.
(5) Relief.
7, Before the learned Additional District Judge, it was contended on behalf of the petitioners that the orders of the Settlement Authorities were made without notice to Lai Din; that those orders were based upon fraud and that the property being in possession of a refugee from Jammu and Kashmir was not available for transfer to any other claimant 'and its transfer to Fateh Muhammad was, therefore, void.
8. The learned Additional District Judge referred to the evidence of the Record Keeper of the Settlement Department who appeared as the plaintiffs' witness as P.W3. He admitted that Lal Din had been served with a notice on 6-5-1964; that he was again served with another notice which he received on 1-1-1966 and that despite those notices, he had failed to deposit the remaining price with the result that the property was resumed from the name of Lai Din vide order dated 5-9-1967 of the Deputy Settlement Commissioner. The learned Additional District Judge noticed also that on the representation of Lal Din offering to pay the remaining sale price, the property was deleted from the auction list but Lal Din again failed to deposit the price with the result that the house was auctioned on 23-11-1967. He noticed further that on yet another application, it was ordered that auction in favour of Fateh Muhammad should not be confirmed if Lai Din deposited the price by 1- 12-1967. This order too was not complied with and the auction was confirmed on 5-12-1967 by the order of the Additional Settlement Commissioner. Lal Din deposited the remaining sale price on 18- 1-1968, that is after the auction in favour of Fateh Muhammad had been confirmed. The learned Additional District Judge observed that under Settlement Scheme No. VIII, this deposit was of no help, for that scheme provided that the price must be paid before the property was put to auction and the auction wasconfirmed. Dealing with the contention that the orders of the Settlement Authorities were based on fraud, the learned Additional District Judge held that the petitioners had failed to prove that any fraud was played. Dealing with the contention that the property being in occupation of a refugee of Jammu and Kashmir was not a part of the compensation pool and could not, therefore, be transferred to Fateh Muhammad, defendant, the learned Additional District Judge observed that if this contention was accepted it would mean that such a refugee "possessed such right without a corresponding obligation whereas no right can be conceived of without a corresponding liability". The learned Additional District Judge referred to para. 19 of Settlement Scheme No. IV, which provided that the property in possession of a refugee from Jandmu and Kashmir was not transferable except to such a refugee from Jammu and Kashmir and to para. 3 of that Scheme which said that the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, the schedule to that Act and the rules and schemes made thereunder would apply to the temporary rehabilitation of Jammu and Kashmir, claimant and non-claimant displaced persons. The learned Additional District judge held that Scheme No. VIII "has, therefore, been made applicable to Scheme No. IV as well" . Under that scheme, "notices were issued to Lal Din for the payment of the remaining amount and Lal Din submitted to the jurisdiction of the Settlement Department and acknowledged that Scheme No. VIII is applicable to Jammu and Kashmir refugees as well". In the opinion of the learned Additional District Judge, the property of Lal Din had thus become available for transfer to others. It was also contended before the learned Courts below that the decision of this Court in the writ petition operated as res judicata and the suit was, therefore, not competent. Observing that the writ petition had not been decided on its merits and the matter had not been heard and finally decided within the meaning of section 11, C.P.C. and also that "the proceedings in the writ petition cannot be said to be proceedings in a suit" and therefore, section 11, C.P.C. did not apply, the learned Additional District Judge held that this Court's decision in the writ petition was not res judicata.
9. Learned counsel for the petitioners referred to Settlement Scheme No.IV framed by the Chief Settlement Commissioner under section 16-B of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 and contended that the house in suit being in the occupation of Lal Din, a refugee from Jammu and Kashmir State, could not be transferred to any person other than such a refugee; that if no such person was found eligible for transfer, then the house was to be sold in a restricted auction in which displaced persons from Jammu and Kashmir State alone could participate and that the house, therefore, stood excluded from the compensation pool out of which evacuee properties were transferred to displaced persons from other parts of India. For this contention he referred to Ali Muhammad v. Hussain Bakhsh and others (PLD 1976 SC 37) and Muhammad Sultan Mir and others v. M. Yousuf Hussain Dada and others (1984 SCMR 533), which cases do support these contentions. Learned counsel for the petitioners went on to argue that as the house in suit was not a part of the compensation pool and was, therefore, not available for transfer to refugees from other parts of India and the possession of Lal Din and his successors-in- interest could not be disturbed till the repatriation of such refugees, the orders of the Settlement Authorities auctioning the house in suit and then transferring it to Fateh Muhammad defendant, were without jurisdiction and ineffective in law. This contention assumes and wrongly in my opinion that the orders of the Settlement Authorities were incapable of legal consequences and need not have been challenged at all. It has been seen that Lal Din had been provided a number of opportunities to deposit the remaining sale price of the house and that the auction in favour of Fateh Muhammad was confirmed only when he had failed to do so. The house in suit had been resumed from the name of Lal Din by the Deputy Settlement Commissioner's order dated 5-9-1987; later, on the failure of Lal Din to deposit the remaining sale price, the auction was confirmed in the name of Fateh Muhammad. All these orders were undoubtedly capable of producing legal consequences. Dealing with a similar argument, it was said in Smith v. East Eloe Rural-District Council (1956 AC 736): "At one time, the argument was shaped into the form of saying that an order made in bad faith was in law a nullity and that consequently all references to compulsory purchase orders must be treated as references to such orders only as had been made in good faith. But this argument is in reality a play on the meaning of the word `nullity'. An order, even if not made in good faith is still an act capable of legal consequences. It bears no brand of invalidity upon its forehead; unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeachable order..." .
Lal Din had challenged the order of the Additional Settlement Commissioner dated 5-12-1967 whereby the auction of the house in suit was confirmed in the name of Fateh Muhammad before the Settlement and Claims Commissioner and his revision petition was dismissed by his order dated 23-4-1968. He then filed W.P. No. 538-R/1968 in this Court. As noticed above, that writ petition was dismissed on the - ground that it had abated by this Court's order dated 19-5-1972 and the petitioner's application to have the abatement set aside was dismissed on 20-4-1973. It is obvious that Lal Din had challenged the order of the Additional Settlement Commissioner dated 5-12-1967 before the Settlement Commissioner because that order was capable of producing the legal consequences. After having failed before the Settlement Commissioner, Lal Din challenged the orders of the Settlement Authorities before this Court. There can therefore be no doubt that the orders of the Settlement Authorities were capable of legal consequences and had, therefore, to be set aside in due course of law. After the writ petition had been dismissed on 19-5-1972 and the petitioners' application to have the abatement set aside had been dismissed on 20-4-1973, the only course open to the petitioners was to file an appeal before the Supreme Court. Instead, they instituted this suit and thus sought a remedy which was, in my opinion, not available to them at all:
10. The order of this Court dated 19-5-1972 holding that the writ petition had abated was made under Order 22, C.P.C. As it then stood, Rule 9 thereof provided that "where a suit abates or is dismissed under Rule 8, no fresh suit shall be brought on the same cause of action". It was held in Syed Sirajul Hassan and another v. The Settlement Commissioner and 2 others (PLD 1974 Lahore 285) that the provisions of Order 22 apply to writ petitions. Now if the effect of abatement of a suit was that no fresh suit could be brought on the same cause of action, then the effect of the abatement of a writ petition mustalso be that no suit lay on the same cause of action.
11. The principle on which a suit is held to be barred after a writ petition has been dismissed, is the general principle of res judicata. The reason on which the Courts claim to be entitled to dismiss such a suit is the prevention of the abuse of process of law. As was held in Muhammad Akhtar etc. v. Abdul Hadi etc. (1981 SCMR 878) after the adjudication of a matter in this Court's writ petition and by the Supreme Court, "a fresh suit to reagitate the same matter could not have been filed by the respondent which was nothing but an abuse of the process of law". I had also had an occasion to consider this question in Syed Shahzad Hussain and 4 others v. Mst. Hajira Bibi and 3 others (PLD 1990 Lahore 222), and if I may venture to quote: "It is now well-established by authority that even if section 11 of the C.P.C. may not, in terms, apply in support of the plea of res judicata, the general principles of res judicata are clearly attracted to debar a party from re-agitating the matter afresh by a civil suit which had been set at rest by a judgment of the High Court passed in writ jurisdiction" and `there would be something seriously wrong with our system of administration of justice, if we were to hold that there is no power in the Courts to prevent such an abuse of their process'."
In this connection, reference may also be made to Muhammad Chiragh-ud-Din Bhatti v. The Province of West Pakistan (now Province of Punjab) through Collector, Bahawalpur and 2 others (1971 SCMR 447), Abdul Majid and others v. Abdul Ghafoor Khan and others (PLD 1982 SC 146) and Muhammad Shafi and another v. Muhammad Bakhsh and another (PLD 1971 Lahore 148). It was then argued that this was a case of a continuing wrong in that the petitioners were, in law, entitled to retain the possession of the house till their repatriation, and had, therefore, a fresh cause of action for the suit when their dispossession was threatened. But in view of the reliefs sought in the plaint, this contention cannot avail the petitioners. In the plaint what the petitioners claimed was that they were the owners in possession of the house in suit on the basis of the P:T.O. they also sought a declaration that the orders of the Settlement Authorities were without jurisdiction and ineffective in law.
12. For these reasons, I would hold that the suit was barred by the general principle of res judicata and was also liable to dismissal on that ground.
13. I, therefore, find no merit in the revision petition and dismiss it with costs throughout.