1. ' MUHAMMAD YUNUS SURAKHVI, J.---This appeal by way of leave has been directed against the judgment of the High Court dated January 17, 1994, whereby the writ petition filed by the respondents, herein, was accepted and the orders of the learned Custodian and the Rehabilitation Commissioner for the grant of entitlement certificate and the Proprietary Rights Transfer Order were declared to be without any lawful authority.
2. ' The brief facts forming the background of the present case are that according to the appellant, herein, the disputed hind measuring 7 Kanals 3 Marlas comprising Survey No,104/8 situate in Village Narrul was allotted to one Asad Ullah, the father of the appellant, in the year 1954. According to the case of the respondents the land was not an evacuee property but was in the ownership of Musa Khan, their father, on whose death the ownership devolved on the respondents. There has been protracted litigation between the parties regarding the status of the property i,e, as to whether the same is evacuee or non-evacuee. According to the case of the respondents an inquiry was held by the Rehabilitation Commissioner somewhere in the year 1962 and he came to the conclusion that the land in dispute was not an evacuee property and the same was not proved to have been allotted to the predecessor-in-interest of the appellant, herein. Afterwards the proceedings for the issuance of entitlement certificate and the Proprietary Rights Transfer Order started and the entitlement certificate was issued in favour of Muhammad Subhan vide order of Rehabilitation Commissioner dated February 18, 1984 and ultimately the Proprietary Rights Transfer Order was passed in his favour vide order of the Custodian dated 2nd of July, 1985.
3. ' The respondents after exhausting the other remedies before the Rehabilitation Authorities and the Custodian finally filed a writ petition in the High Court assailing the findings of the Rehabilitation Authorities and the Custodian that the land in dispute was an evacuee property.
4. ' The learned Judge in the High Court after considering the record and hearing the learned counsel for the parties vide his impugned judgment dated January 17, 1994 opined that the land in dispute was in fact not an evacuee property but was in the ownership of Musa Khan, the predecessor-in- interest of the respondents.
5. ' Arguing the case on behalf on the appellant, Sardar Rafique Mahmood Khan, the learned counsel took strong exception to the impugned judgment of the High Court and made it a plank of attack on numerous grounds. Some of the grounds agitated by the learned counsel are stated as under:- -
(i) That the High Court has committed an error in holding that the land was not an evacuee property and it was not treated as such:
(ii) that the findings given by the Rehabilitation Commissioner regarding the character of the property in the year 1962 are not binding on the appellant because the record shows that the land was in fact an evacuee property. In any case the Rehabilitation Commissioner was not competent to ascertain the character of the property but it is only the Custodian who could do the same, submitted the learned counsel.
6. ' To elaborate his contention the learned counsel contended that he had definitely taken a plea in his memo. Of appeal that the findings recorded by the Rehabilitation Commissioner are ultra vires, beyond his jurisdictional competence and as such are invalid;
(iii) that from the record it stands proved that the land was allotted in the name of the father of the appellant in the year 1954 and after his death to the appellant, herein. He has referred to the copy of the allotment chit and also produced the original allotment order in the open Court according to which the land appears to have been allotted to the father of the appellant;
(iv) that the respondents regarding the present dispute filed a writ petition in the High Court which was dismissed as being withdrawn without any permission to file a fresh petition vide order dated October 26, 1986, as such the subsequent writ petition with regard to the same property, the same cause of action and between the same parties was not maintainable;
(v) that the order of allotment in favour of the appellant was very much in the knowledge of the respondents, if not earlier, but surely in the year 1962 as averred by them in the writ petition itself, thus by not challenging the allotment order before any competent authority the respondents slept over the matter and at this belated stage no relief should have been given to them, while exercising the power in a writ petition;
(vi) that the mutation of the land in dispute sanctioned in favour of the respondents was cancelled by the Financial Commissioner, after detailed inquiry conducted by the subordinate Rehabilitation Authorities;
(vii) that the High Court failed to appreciate and interpret the Revenue record in its true perspective. It is established beyond any doubt that the appellant's father was entered as an allottee of the land in dispute and remained in possession of the land after the allotment;
(viii) that there is no doubt that in the Revenue Record i,e, in Jamabandi 1991-92 Bk the father of the respondents was shown as the owner of the land in dispute but later on even in Dogra Regime this very land is shown as having been exchanged with one Prem Chand son of Gopichand in Khasra Girdawari of the year 1991-92 Bk. The aforesaid copy of Khasra Girdawari is appended with the file and marked as Annex. `A/1' and Mutation No,9 of exchange was also entered in the said Khasra Girdawari; and
(ix) that one Abdul Rehman who was one of the petitioners in the High Court and whose survivors have been arrayed as respondents in the memo. Of appeal died during the pendency of the writ petition but his heirs were not impleaded as such, the writ petition to his extent stood abated in the High Court but the High Court failed to consider this aspect of the case.
7. ' In reply Ch. Muhammad Ibrahim Zia, the learned counsel for the respondents, repudiated the contentions of the learned counsel for the appellant and maintained that in view of the Revenue Record of Dogra Regime the land is entered in the name of the predecessor-in-interest of the respondents and the inquiry held by the Rehabilitation Commissioner in which the appellant was one of the parties has attained finality. Thus it is no more open for any authority to declare the property to be evacuee property submitted the learned counsel for the respondents.
8. ' We have heard the learned counsel for the parties and perused the record made available with care.
9. ' The learned Judge in the High Court in his finding recorded in the impugned judgment reached the conclusion that the land in dispute was never allotted to the father of the appellant. It was further explained that an attested copy of the original allotment order appended with the writ petition and marked as Annex 'TY does not contain the allotment of Survey No, 104/8. The learned Judge further observed that the appellant, herein, did not produce the copy of the allotment order with his written statement and that in the year 1%2 the Rehabilitation Commissioner resolved the controversy by holding that the father of the appellant was not the allottee of the land because it was not an evacuee property. Even the above judgment of the Rehabilitation Commissioner was not challenged before any forum and as such it had attained the finality.
10. ' With utmost respect to the learned Judge in the High Court, it may be pointed out for keeping the record straight that the respondents themselves appended the photo stat copy of the allotment chit with the writ petition and throughout it had been their case that as the property is not an evacuee so the same could not have been allotted to the appellant's father. The photo stat copy of the allotment chit is even appended with the petition for leave to appeal and marked as Annex. 'A'.
11. Similarly in the written statement in reply to para. No,1 of the writ petition in para wise reply it was averred that the land in question was allotted to one Abdul Rahim s/o Abdul Jabbar in the year 1950 and when he left the territory of Azad Jammu and Kashmir the land was allotted to the father of respondent No, 5 (the present appellant). The photo stat copy of the allotment chit was shown to have been appended with the written statement. It was further averred that the original allotment permit shall be submitted at the time of arguments for the perusal of the Court. Throughout the case of appellant has been that the land in dispute stands allotted in the name of his father since 1954. We can also take judicial notice of the fact that the entries in the Revenue Record to this effect were incorporated in the year 1954. For our own satisfaction we asked the appellant to produce the original allotment order who did it and we examined the allotment permit in the open Court during the course of arguments. There remains hardly any doubt about the factum of allotment. The case of the respondents as disclosed in their concise statement is that the appellant's father fabricated the allotment chit dated April 7, 1954. We are afraid the High Court while exercising the writ jurisdiction cannot determine the question of genuineness or fabrication of the allotment permit because this function is exclusively vested in the Rehabilitation Authorities. All the Rehabilitation Authorities reached the conclusion that the land is evacuee property and stands allotted in the name of the father of the appellant.
12. ' The allotment made in the name of the appellant's father was never challenged by the respondents before any competent forum. It is evident from the record that the respondents had the knowledge of allotment having been made in the name of the appellant's father if not earlier but surely in the year 1962. This fact is clearly established from the averments of the respondents made in their writ petition wherein it is mentioned in para. No,2 of the writ petition that in the year 1962 Assad Ullah, the father of the appellant claimed the aforesaid land as having been allotted to him. So by not challenging the allotment before any competent forum the respondents slept over the matter and now it is too late for them in the light of the day to challenge the same at this belated stage by way of a writ petition in the year 1989. There is yet another aspect of the case. On careful consideration and perusal of the allotment permit we find that during the process of allotment in the name of the appellant's father File No,38 of 1953 was prepared by the subordinate Rehabilitation staff and the allotment chit was issued vide order of Assistant Rehabilitation Commissioner dated April 7, 1954. The allotment permit having been issued an entry to this effect with regard to Khasra No, 7, a piece of land is incorporated in Khasra Girdawari of the year 1954 marked as Annex. `A/1', wherein the possession of the allottee is shown in 1954 on the basis of allotment Chit No,
38. Then in Khasra Girdawari of the year 1954 Khasra No,104/8 (the disputed land is shown in possession of allottee Assad Ullah), the father of the appellant which continues up to the year 1957.
13. ' In the impugned judgment of the. High Court the learned Judge has opined that Jamabandi of 1991-92 Bk. In column of ownership the name of Mausa Khan, the predecessor-in-interest of the respondents is entered; as such in his estimation the property belongs to Muslim owner and is not evacuee one.
14. ' There is no doubt about it that in Jamabandi of the year 1991-92 Bk. Mausa Khan is shown as owner of the land but in Khasra Girdawari of 1992-93 Bk. At page No,15 of the Supreme Court file Khasra No, 104/8 measuring 7 Kanals 3 Marlas is shown to have been exchanged by the Mausa Khan in 1992 Bk. With Prem Singh son of Gopi Chand as non-Muslim and Mutation No, 9 on the basis of exchange appears to have been entered. So the reasoning given by the learned Judge appears to have been based on artificial and flimsy ground.
15. Thus it becomes abundantly clear that the land in dispute was entered as Hindu's property in Dogra Regime; and in the year 1950 it was allotted to one Abdul Rahim and thereafter to the father of the appellant. The above said Revenue Record somehow or the other escaped the notice of the learned Judge in the High Court Similarly the learned Judge's finding- that Khasra No,104/8 is not included in the allotment chit Annex. Appended with the High Court file probably is the result of non-reading and misappreciation of the document on the record, the document Annex.
16. 1.3' refers to some other land allotted in favour of appellant's father. Its acreage is 3 Kanals 16 Marlas whereas the land in dispute is 7 Kanals 3 Marlas bearing Survey No, 104/8. There is no rebuttal of the aforesaid document from the respondents' side so we have no option but to go by the entries of these documents.
17. ' The careful perusal of the impugned judgment shows that the learned Judge in the High Court placed main reliance on the judgment of the Rehabilitation Commissioner dated 23-4-1962 and observed that this judgment has attained finality as it was not challenged before any competent authority.
18. ' We are constrained to differ with the above-stated observations on the following grounds:--
(a) On careful consideration we are of the view that it was not within the domain of Rehabilitation Commissioner to declare any property as evacuee or non-evacuee. This function exclusively vests in the jurisdiction of the Custodian Evacuee Property;
(b) the appellant in his written statement before the High Court has categorically averred that the judgment of the Rehabilitation Commissioner is beyond the jurisdictional competence and in violation of law; as such not binding on him. It may be pointed out that the learned Judge in the High Court failed to give any finding on this aspect of the case;
(c) that the learned Custodian on the review petition filed by the respondents against the Proprietary Rights Transfer Order passed in favour of the appellant vide his judgment dated 21-4- 1988, opined in unequivocal terms while dismissing the review petition that on the basis of the judgment of his predecessor (the former Custodian) dated 25-11-1977 and 7-12-1977, the land in dispute has already been declared as evacuee and the allotment in favour of the appellant has been found genuine; and that the Financial Commissioner, while cancelling the Mutation No,50 of the land from the names of the respondents has maintained the previous character of the property i,e, the evacuee. It may further be elucidated that the learned Custodian referred to the judgments dated 25-11-1977 and 7-12-1977, which are obviously given about 15 years after the judgment of the Rehabilitation Commissioner;
(d) at the time of grant of Proprietary Rights Transfer Order in favour of the appellant the remedy was open to the respondents to agitate the matter before the Custodian but the respondents failed to do so. It appears that at that time it was not the case of the respondents that the character of the property has been determined as non-evacuee, so in our view the case-now set up by the learned counsel for the respondents is nothing but inevitably an afterthought.
19. ' To have a proper perception of the matter we deem it proper to reproduce section 18-B of the Administration of Evacuee Property Act, which reads as under:-- "18-B.--(1) Notwithstanding anything contained contrary in any other law for the time being in force, and without prejudice to the generality of the powers which already vest in him, the Custodian may cancel any allotment of evacuee property in the following cases:-- (b)
(c) where the allotment has been made in violation of law or is without jurisdiction."
20. The above-referred provision of law gives wide powers to the Custodian of Evacuee Property to cancel any allotment having been made in violation of law or beyond jurisdiction. As pointed out in the earlier part of this judgment the respondents failed to take any such stand.
21. ' There is yet another aspect of the case which will highlight the fact that the respondents have been taking different stands from time to time.
22. ' Respondents in the year 1978 filed a suit for redemption of mortgage with regard to the suit land in the Court of Custodian Evacuee Property who made it over to the Deputy Custodian, Muzaffarabad.
23. It was averred by the respondents that the land was mortgaged to one Sohan Chand, a non- Muslim evacuee. Later on an application was moved seeking the amendment in the suit, wherein they claimed that the suit land was not mortgaged to Sohan Chand but he was tenant-at-will of the respondents. The above instance is just quoted to show that the respondents have been taking divergent and self-contradictory stands from time to time.
24. ' Another important ground of attack on the impugned judgment by the learned counsel for the appellant is that the respondents filed a writ petition in the High Court on 22-9-1985 challenging the orders of respondents Nos.26 and 27 dated 7-7-1985, 2-7-1985 and 18-2-1984 as being without any lawful authority and of no legal effect. The respondents challenged the Proprietary Rights Transfer Order with regard to the disputed land granted in favour of the appellant. The above writ petition was withdrawn by the learned counsel for the respondents without the permission to file a fresh one and it was dismissed with costs as being withdrawn by the order of the High Court dated 26-10-1986. After the withdrawal of the previous writ petition the present writ petition was filed challenging almost the same orders on the same cause of action between the same parties and in the same Court. The learned counsel for the appellant vehemently contended that the principle of res judicata is attracted and the respondents are precluded to file a subsequent writ petition. In alternative the learned counsel maintained that the provisions of the Code of Civil Procedure are attracted even in the writ jurisdiction and the respondents are debarred from filing the subsequent writ petition under the provisions of rules 1 and 2 of Order XXIII of the Code of Civil Procedure. The learned counsel for the respondents in reply submitted that as the previous writ petition was not decided on merits so the subsequent writ petition was not debarred. In this regard he placed reliance on Muhammad Shaft Khan and another v. Gifulam Din and 4 others (PLD 1992 SC (AJ&K)
25. 58) Pakistan Industrial Development Corporation v. Pakistan through Secretary, Ministry of Finance, Islamabad and another (PLD 1984 Kar. 1), Muhammad Latif Khaukhar v. Chairman, Development Authority, Muzaffarabad and another (1992 CLC 2243) and Sardar Muhammad Ibrahim Khan v.
26. Azad Jammu and Kashmir Government (PLD 1987 SC (AJ&K)
127. In the above-cited authorities there is consensus that if a previous judgment is not passed on merits the subsequent proceedings are not hit by the principle of res judicata.
27. After careful consideration we are of the view that the principle of res judicata is not attracted in the instant case for the simple reason that the order of the High Court dated 26-10-1986 is not on the merits of the case. It does not adjudicate the matter in dispute finally. The fact however, remains that the Court did not allow the withdrawal of the previous writ petition with permission to file a fresh, as such the provisions of Order XXIII, Rules 1 and 2 of the Code of Civil Procedure are fully attracted and second writ petition is barred. We are not oblivious of the fact that all the provisions of the Civil Procedure Code are not strictly applicable in the writ proceedings, however, the broad principles of Civil Procedure Code are applicable in the writ proceedings. We are absolutely aware of the fact that the provisions of Order XXIII, Rules 1 and 2 are applicable in the writ proceedings. We are fortified in our view by the following authorities:--
(i) Sardar Chakar Khan and 216 others v. Commissioner, Sibi Division, Sibi and 30 others (1979 CLC 829); and
(ii) Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and another (1969 SCM R 268).
28. ' In the case reported as Sardar Chakar Khan and 216 others v. Commissioner, Sibi Division, Sibi and 30 others (1979 CLC 829) it was held at page 831 that:- "The principles embodied in Order XXIII. Rule 1 are applicable to Constitution petitions as the proceedings under Article 199 of the Constitution relating to a civil matter are civil proceedings in view of the judgment of their Lordships of the Supreme Court in Hussain Bakhsh v. Settlement Commissioner and another."
29. (Underlining is ours)
30. ' In the above-quoted authority reliance has been placed on Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and another (1969 SCM R 268).
31. ' Lastly it was contended by the learned counsel for the appellant that one of the respondents namely Abdul Rehman (one of the petitioners before the High Court) died during the pendency of the writ petition but his legal representatives were not impleaded as petitioners in the writ petition.
32. According to the learned counsel the writ petition stood abated to his extent.
33. ' In reply it was maintained by the learned counsel that the respondent Abdul Rehman died on 28- 3-1993, and the application for impleading his legal representatives was moved in the High Court on 22-4-1993, well within time. The learned counsel submitted that if at all there was any fault for not arraying the legal representatives of the deceased, it was because of the lapse committed by the Court and no one can be blamed or penalised for the fault of the Court. The learned counsel for the respondents brought to our notice that the appellant himself has arrayed the legal representatives of Abdul Rehman in the category of respondents in the petition for leave to appeal and they are being duly represented in this Court. We are of the view that as the application for impleading the legal representatives was moved in the High Court by the respondents well within time so on account of fault on the part of the Court respondents cannot be penalised. It has been rightly pointed out by the learned counsel for the respondents that the legal representatives of Abdul Rehman deceased have been duly arrayed in the category of respondents by the appellant and they are being represented in this Court. So the objection raised by the learned counsel for the appellant stands repelled.
34. ' So far as the arguments advanced by the learned counsel for the appellant mentioned in the earlier part of this judgment are concerned, they are quite weighty and are hereby affirmed by us.
35. ' In this view of the matter we accept the appeal and set aside the impugned judgment of the High Court dated January 17, 1994, with no order as to the costs.
36. THE END VOLUME XLVI 1994