' FAZAL ILAHI KHAN, 1.---This appeal through leave of the Court is directed against the judgment of learned Peshawar High Court, Peshawar dated 22-7-1992 passed in Civil Revision No,238 of 1985.
2. Facts, though are very lengthy and implicated, in brief to be stated, are that respondents approached various forums for seeking redress as the dispute relates to the property situated in Moza Tam Angara, District Dir regarding which there was neither proper Revenue/Settlement Record nor normal laws of the land governed such disputes. The proceedings regarding the dispute were initiated by the plaintiffs by filing an application before the Tehsildar Timergara on 24th January, 1970 in which it was alleged that appellants purchased the land in dispute from respondents Nos.9 to 42 for a sum of Rs,30,000 vide sale-deed dated 29-8-1969 which they wanted to pre-empt in exercise of their superior right of pre-emption. As already stated no description of land and the date of the sale was mentioned therein. However, it was prayed that whatever land is found to have been sold should be decreed in their favor. This application passed through relevant Forums and various stages and finally it was sent to (sie). Timergara and there on 29-11-1970 the respondents further claimed that they were the owners and in possession of the land. Such being the case the respondents/plaintiffs were asked to affix court-fee on the plaint which they refused.
They further refused to agree with the proposed decision of the case through Jirga or Sharia. The Assistant Commissioner Time raga, therefore, dismissed the suit for declaration as well as that of pre-emption after holding the appellants to be the lawful vendees of the land per his judgment dated 24-4- 1973. Respondents/plaintiffs appealed against the judgment and decree which was accepted by the D.C., Dir., the judgment and decree of the A.C. Was set aside and the case was remanded to A.C. With the direction that he should refer the case to Qazi for a share award with consent of the parties. It was further directed that the Court shall ascertain whether 19 persons who had sold the land to the appellants were the actual owners of the land and they were authorized or non-owner persons. This order of the Deputy Commissioner was challenged in appeal before Additional Commissioner who dismissed the same on 15-11-1974 with certain observations. It was observed that the respondents/plaintiffs shall pay cost of Rs,200 and that they shall also affix the court-fee within two months. That in case of default i,e, on failure to pay the court-fee there shall be no further proceedings and the order of Assistant Commissioner shall automatically stand restored.
3. After the remand in spite of the direction the order was not complied with, therefore, by order dated 22-5-1975 the Assistant Commissioner declared that his order dated 24-4-1973 stood revived. This order was challenged in appeal before the Deputy Commissioner but the appeal was dismissed on 11-8-1975 and their revision petition against the same was dismissed by Additional Commissioner on 22-5-1975. Their further Revision Petition before Additional Secretary, Home Government of N.-W.F.P. Also stood dismissed on 3-8-1976.
4. Against the provisional order the respondents/plaintiffs filed a Writ Petition before the Peshawar High Court challenging the orders dated 24-4-1973, 22-5-1975 and 3-8-1976 of the A.C., Additional Commissioner and Additional Secretary Home, respectively. In the Writ Petition declaration was sought that the suit land is in Kaman Gaza and is exclusively the property of the respondents/plaintiffs i,e, Hasan Khel Tribe and that its sale by Jalal Khel Tribe in favour of the appellants was fraudulent, inoperative and ineffective on their rights. This Writ Petition was dismissed on 19-11-1978.
5. After dismissal of the writ petition the respondents/plaintiffs filed a civil suit in the Court of Civil Judge, Time raga on 10-4-1979 seeking declaration that the respondents/plaintiffs were owners of the suit property and that the sale in favor of the appellants by Jalal Khel Tribe per deed dated 29- 8-1969 was in-effective and void. In the written statement filed by the appellants several preliminary and factual objections were raised especially with regard to limitation, want of jurisdiction, estoppel, non-joinder of necessary parties and non-maintainability of the suit in the present forum. It was further stated that defendants Nos.6 to 30 i,e, Jalal Khel were the owners of the suit land and they have validly sold it to the appellants for a sum of Rs,30,000 vide sale-deed dated 29-8-1969. That the respondents/plaintiffs' suit for pre-emption and declaration challenging the sale-deed having been decided against them and the Writ Petition against those decisions having beets dismissed the present suit was barred under the principle of res judicata. However, defendants Nos.8 to 10 in the suit (of Jalal Khel Tribe), who are the vendors, conceded the respondents/plaintiffs' case and stated that they had never been in possession of the suit land and that their signatures and thumb-impressions on the deed were forged and that they had never been paid the consideration.
6. The learned trial Judge framed as many as 13 issues arising out of the pleadings of the parties where after recording evidence of the parties the suit was decreed on the finding that defendants Nos.8 to 13 (vendors) did not own any land in village Kamangara; hence, the alleged sale made in favor of the appellants was void and ineffective on their rights. The judgment and orders passed by various forums in respect thereof were declared illegal, without jurisdiction, inoperative qua the rights of the respondents/plaintiffs and defendants Nos.6 and 7. The appellant challenged the judgment and decree in appeal before the District Judge, Dir on 5-9-1984. The learned District Judge vide judgment dated 17-1-1985 accepted the appeal, set aside the judgment and decree of the trial Court and dismissed the suit on the ground that the same was hit by res judicata.
Aggrieved by the judgment and decree of the Appellate Court respondents/plaintiffs challenged the same in Revision No,238 of 1985 in the Peshawar High Court, Peshawar. The learned Judge in the Peshawar High Court vide his judgment dated 22-7-1992 allowed the revision petition, set aside the judgments and decrees of the Courts below and remanded the case to the learned Senior Civil Judge, Timergara for decision afresh.
7. Leave to appeal was granted to consider; whether remand of case for fresh trial was inevitable and the learned High Court could not give a proper decision on the material already available on the record.
8. We have heard the learned counsel for the appellants and have gone through the record with their help. The learned trial Judge framed as many as 11 issues in the case and almost all of them were decided in favor of the respondents/plaintiffs and against the appellants/defendants. In appeal by the appellants issues Nos.2, 3, 5 and 10 alone were challenged before the learned District Judge which are as follows:--- ' Issue No,2. Whether the Court has got jurisdiction? OPP
(3) Whether the plaintiffs are estopped by their conduct to bring the present suit? OPD ' Issue No,5. Whether the suit is high by principle of res judicata? OPD
10. Whether the orders and decisions passed by defendants 2 to 5 relating to the disputed land are illegal, against the facts and ineffective on the rights of the plaintiffs and defendants 6 and 7 and plaintiffs are not bound by them? OPP
9. The learned District Judge, basing reliance on Nawab Ronaq Ali v. Chief Settlement Commissioner (PLD 1973 SC 236) observed that finality given in a statute to the decision of a Tribunal exercising civil jurisdiction is not open to challenge in collateral proceedings and that even otherwise the general principle of res judicata would be attracted in debarring a party from re- adjudicating the matter afresh in a civil suit which has been put at rest by the High Court. There is cavil with the principle relied upon but facts of the present case have not been properly appreciated before applying such principle in the instant case.
10. Irrespective of the fact; whether, the proceedings were initiated by presentation of an application or by a plaint there is no denial of the fact that prayer for pre-emption was not granted to the respondents for one reason or the other. No final decision was ever made in the case. It is rather established on the record that ultimately after the order of remand when the A.C. Was seized of the matter the sale in question was specifically challenged before it. On 29-11-1990. It was at that stage of the proceedings that the plaintiffs/respondents were ordered to affix court-fee on the plaint which they refused and further did not agree to get the case decided through 'Jirga' or Sharia, therefore, on noncompliance of the order of payment of court-fee the suit was dismissed and on the contrary granted a declaratory decree to the appellants as stated above per judgment dated 24-1-1973, which was set aside in appeal with the direction that the dispute be referred to Qazi for Shariat decision with the consent of the parties. It was further directed to decide; whether, those who had allegedly sold the land were the owners of the land. The above order was modified in revision to the extent that the respondents shall pay court-fee within 2 months. As after the remand the court-fee was not paid, therefore, the A.C. Dismissed the suit by order dated 22-5-1973.
The implication of this order, its effect and subsequent proceedings in the suit filed in the Civil Court have been duly considered in the elaborate judgment of the learned High Court. The learned counsel for the appellants was unable to show that the ingredients for application of section 11 of the C.P.C.. Were in any manner available in the present case. It is not denied that no specific amount for court-fee was ordered to be affixed on the plaint and no law whatsoever cited to show that court-fee was loveable on the application/suit in question.
11. Learned High Court holding that on the face of record principle of section 11 was not attracted to the case and at the most for non-compliance of the order of court-fee, which too was neither determined nor ordered that so such amount is to be paid rightly remanded the case for decision on merits and abstained from giving its own decision which would have deprived the parties of the right of first appeal. No finding was given by the A.C. With regard to title of the person who had allegedly sold the suit property in favor of the appellants. The earlier order having been set aside by the learned Appellate Court, with regard to the declaratory part of the decree the A.C. Was not competent to have restored his original order without referring the matter to Quiz or Sharia. As there was involved certain important questions which required judicial determination, which had not been done by the Appellate Court while setting aside the judgment and decree of the trial Court, we find no infirmity in the judgment of the learned High Court in remanding the case to the trial Court on its view formed on the record that there being involved substantial property in the suit and to meet the ends of justice it was deemed proper and for doing complete justice to afford opportunities to both the parties to lead fresh evidence on the material issues.