Briefly facts leading to this petition are that on 8-10-1974 the respondent/plaintiff filed a suit for declaration with consequential relief to the effect that the Mutation No. 1433, dated 16-3-1974 being fictitious and collusive was not operative against the rights of the respondent/plaintiff; the petitioner/respondent filed written statement vehemently repudiating claim in the suit; the suit was dismissed by the learned Civil Judge, Kasur vide judgment dated 11-3-1979 on account of the plaint insufficiently stamped and value for the purpose of court-fee and failure to produce evidence to substantiate the claim. The Civil Appeal No.38 of 1979 filed on 25-3-1979 by the respondent/plaintiff against the judgment of learned Civil Judge was accepted and the impugned judgment and decree of the lower Court was set aside by the learned District Judge, Kasur vide judgment dated 14-1-1980.
2. The present petition is directed against the judgment and decree dated 14-1-1980 passed by the learned District Judge, Kasur.
3. The learned counsel for the petitioner vehemently argued that the learned District Judge was duty bound to consider all the issues; the finding of the learned District Judge on Issues No.4, 5 and 6 are the result of gross misreading and misinterpretation of evidence adduced by the parties and Appellate Court failed to give finding on the Issue No.3 being a legal issue.
4. Learned counsel for the respondent at the very outset raised preliminary objection that revision petition be dismissed as it is hit by principle of res judicata under section 11 of C.P.C. As R.S.A. No.341 of 1980 filed by the petitioner was dismissed on 17-9-1995 and has attained finality.
5. I have heard the arguments advanced by the learned counsel for both the sides at length and have perused the record with their able assistance.
6. Admittedly R.S.A. No.341 of 1980 was filed by the petitioner through another Advocate, namely, Mr. Muhammad Sadiq Bhatti on 15-4-1980 wherein detailed order was passed by my learned brother Nisar Ahmad, J. (as he then was) on 23-4-1980 and it has been mentioned in the said order that the petitioner filed C. P. S. L. A. No .161 of 1980 against the order of the learned Judge in Civil Revision No.80-D of 1980 for stay which was refused in the civil revision. Further it was observed by my learned brother in the order, dated 23-4-1980 that:---- "It appears that on his failure to get relief in the Supreme Court in relation to the civil revision, the appellant has now attempted to get relief by means of the present appeal. To say the' least this attempt prima facie rests on positive mala fide and fraud. I am, therefore, not inclined to grant any interim relief to the appellant.--- It is also interesting to note that the petitioner did not give the required certificate under the High Court Rules that no previous writ, revision or appeal has been filed by the petitioner though civil revision was filed on 26-1-1980 wherein already mentioned stay application was dismissed against which the petitioner had gone up to the level of Supreme Court.
7. Learned counsel for the petitioner when confronted, he contended that the principle of res judicata is not applicable to the revision petition in hand as the R.S.A. No.341 of 1980 was not competent in view of Law Reforms of 1972; further contended that R.S.A. Was dismissed for non- prosecution and not on merits and relied on case Mst. Parveen Akhtar v. Ghulam Akbar and others 1991 CLC 1393 (Lahore) wherein it was observed that decision of first revision being not on merits could not operate as res judicata nor same could debar a party from re-agitating the same matter through properly constituted proceedings. Learned counsel also relied on case T: R. Arthur v. Alex Robert David 1981 CLC 522 (Karachi), wherein it was held that former suit dismissed for non- prosecution and not on merits did not constitute res judicata. Learned counsel for the petitioner contended that the civil revision was also dismissed on the same date for non-prosecution but was restored to its original number for decision on merits, the said R.S.A. No.341 of 1980 was not sought to be restored by the petitioner as it was considered that R.S.A. Being incompetent in the presence of present revision petition and contended that dismissal of suit in default does not in any way debar the revision petition and relied on case Khushi Muhammad v. Khadeja Hakeem and another PLD 1976 Lah. 99 wherein it was held that the dismissal in default of suit does not vest opposite-party with any right and such party is not immune from further litigation on same cause of action. Learned counsel also relied on case Shamshoo v. Mst. Tahira and another 1983 CLC 133 (Karachi) wherein it was observed that a suit was not barred by principle of res judicata as the suit for dissolution of marriage previously filed was not decided on merits but was dismissed for non--- prosecution.
8. It is well settled rule of law that a man shall not be twice vexed for one and the same cause. For this rule, two reasons have always been assigned; the one public policy and the other, the hardship on the individual that he should be twice vexed for the same cause and when a party to litigation seeks improperly A to raise against the identical question which has been decided by a competent Court, the general principles of res judicata are clearly attracted to debar a party from re-agitating the matter afresh at any stage. As observed in case Syed Shahzad Hussain and 4 others v. Mst.
Hajira Bibi and 3 others PLD 1990 Lah. 222 that:--- "It is demonstrably clear that 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. Such a power has always been recognized to inhere in the Courts as an inseparable incident of an institution vested with the administration of justice and is expressly saved by section 151 of the Code of Civil Procedure."
9. Admittedly the petitioner filed R.S.A. After dismissal of C.P.S.L.A. No.161 of 1980 by the Supreme Court of Pakistan and a positive order was passed by my learned brother on 23-4-1980 wherein conduct of the petitioner was considered as mala fide and based on fraud. The order passed in R.S.A. No.341 of 1980 on 17-9-1995 has got finality as no appeal or revision has been filed. It was the petitioner who actually wanted to prolong the proceedings and adopted delaying tactics. In such circumstances the remedy of revision is not a vested right as the basic principle underlying section 11, C.P.C. Is that once the parties have undergone adjudication of an issue in a suit, that would be final as between the parties. It was observed in case Pir Bakhsh represented by his legal heirs and others v. The Chairman, Allotment Committee and others PLD 1987 SC 145 that while interpreting explanation to IV of section 11, C.P.C. That:---- "This explanation is based on the principle that where the parties have had an opportunity of controverting a matter that should be taken to be the same thing as if the matter had been actually controverted and decided."
10. In view of the aforementioned dictum the petitioner had the opportunity to get the order passed in R.S.A. Set aside; the petitioner is disentitled to raise the plea of taking benefit under the subsequent proceedings of the petition in hand. I am of the view that the conduct of the petitioner is such which prima facie shows that he has not come with clean hands and it is well-settled principle of law that revision petition is discretionary relief and is not available to a person who comes to Court with unclean hands. Resultantly, the revision petition is dismissed.