' Impugned herein primarily is the judgment of the learned Additional District Judge-IV, Peshawar dated 27-5-2004 who accepted Civil Appeal No,20/13, set aside the judgment/order, dated 19-5- 2004 of the learned Senior Civil Judge, Peshawar. The latter has dismissed the objection petition of the respondents-objector in the second round of execution proceedings held under the provision of section 144, C.P.C. The petitioner is also aggrieved from the order of the learned Senior Civil Judge/Executing Court, dated 29-5-2004 wherein after remand, the case file was sent to the learned District Judge, Peshawar for appropriate orders.
2. Brief but relevant facts in the backdrop may be stated below:-- "That a suit for recovery of possession of the shop in question was instituted by Taj Muhammad, respondent No,2 herein, against the petitioner and another which was decreed ex parte on 19-1- 1997 by the trial Court. The decree was put to execution and possession of the shop was thus delivered on 20-5-1997 to the respondent No,2 under the warrant of possession issued by the Court."
' On the application of the petitioner and one Imdad Hussain seeking the reversal of the decree, proceedings were re-started and it was on 23-12-1997 that the decree-holder and the petitioner appeared before the Court, submitted compromise deed and prayed for setting aside the decree passed ex parte. The statement of Taj Muhammad was recorded on 6-I-199R to the above effect and his suit was, therefore dismissed. In his said statement Taj Muhammad gave firm assurance to the Court that vacant possession of the shop/property he would hand over to the present petitioner. Later on Taj Muhammad did not abide by his undertaking and made absolute retrace.
Constrained by the circumstances. Abdur Rashid. Petitioner thus, moved an application under section 144, C.P.C. For restitution of the shop.
3. The said application was then resisted by Taj Muhammad vide written reply dated 6-2-1999 on the plea that he had already inducted Lateef-ur-Rehman, respondent No,1 herein, as his tenant in the shop, who was not ready to vacate it. The then Civil Judge did not accept the said plea and issued warrant of possession which was yet to take effect when on 12-2-1998 Lateef-ur-Rehman, respondent No,1 was set up in a clandestine manner by Taj Muhammad to thwart the process of execution who then filed objection petition on 12-2-1998 with a prayer to suspend the execution proceedings. He further claimed ownership on the strength of a registered deed dated 16-7-1998 executed by Taj Muhammad in his favour. It was Taj Muhammad himself who expressly denied the execution of any such deed rather termed it as forged and fraudulent one. The present petitioner also questioned its legality.
4. During the pendency of proceedings respondent No,1 Lateef-urRehman also challenged the issuance of warrant of possession through an appeal and the District Appeal Court vide order, dated 2-11-1998 set aside the order of the executing Court, the warrant of possession, thus, issued was recalled. The executing Court was directed to decide afresh the application of the present petitioner filed under section 144, C.P.C. Alongwith the objection petition. At this stage respondent No,1 applied for his impleadment as a necessary party in the petition filed under section 144, C.P.C.
After hearing the parties, the learned Civil Judge through order, dated 2-6-2000 accepted the petition under section 144, C.P.C. For restitution and dismissed the objection petition.
' The above order was once again impugned before the District Appeal Court and the then learned Additional District Judge, Peshawar through judgment, dated 17-7-2000 once again set aside the order of restitution and this time also dismissed the petition filed under section 144, C.P.C. Feeling mortally aggrieved from the said order, Revision Petition No,535 was filed in this Court and vide judgment, dated 19-3-2003 the said order of the District Appeal Court, dated 7-7-2000 was set aside and the petition under section 144, C.P.C. Was accepted. It was further observed in the said order that the petitioner would retain the possession till the date and time when the competent Court decide the fate of the cases pending trial before different Courts between the parties regarding the title of the shop.
5. The judgment of this Court was challenged through .P.L.A. No,647 of 2003 before the Honourable Supreme Court which was dismissed on 5-4-2004 and their Lordships of the apex Court were pleased in not granting leave to Lateef-ur-Rehman, who is now respondent No,
1. The judgment of the apex Court is more elaborate and encompasses all the pleas taken by the parties therein and has conclusively determined the matter-in-controversy once for all thus, on point of law the matter attained absolute finality.
6. When the proceedings for restitution were restored and recommenced, this time once again Lateef-ur-Rehman respondent No,1 filed an objection petition under Order XLVII and XXI, rule 3, C.P.C. Reiterating the same plea that he was owner-in-possession and being bona fide purchaser of the shop and all the previous orders including the one passed by the Honourable Supreme Court dated 5-4-2004 were void, ab initio and ineffective upon his rights. The same was albeit entertained by the execution Court but when the present petitioner through an application dated 17-5-2004 brought all the material facts to the notice of the executing Court, the matter was accelerated as on 15-5-2004 the Presiding Officer was on leave and through Reader Note case was posted to 26-5-2004. The matter was, therefore, taken up on 19-5-2004 and counsel for the parties were heard whereafter through a detail order/judgment the learned executing Court/Senior Civil Judge, Mrs. Munira Abbasi, dismissed the objection petition, vacated the status quo order and imposed a cost of Rs,25,000 on respondent No,1.
7.The said respondent, did not abandon his ceaseless chase, thus, filed an appeal before the District Appeal Court. The learned Additional District Judge-IV, Peshawar Mr. Shahid Khan through the impugned order, dated 27-5-2004 set aside the order/judgment of the executing Court and passed the following order;-- "12. To wind up, it is observed that as new facts have been introduced, therefore, the learned lower Court should ask for the written reply of the respondent and after hearing of the learned counsel for the parties, if the learned executing Court is of the mind that the materials on the fact of the record are good enough for the disposal of the matter-in-issue and recording of evidence is not inevitable should dispose of the matter on its own merits, otherwise it may dispose of the matter after recording pro and contra evidence of the parties."
' In this way, having been dragged into a third round,' the petitioner has impugned the order of the District Appeal Court through the instant petition. Initially a writ petition was filed which was converted into revision petition, arguments heard and record perused.
8. It was vehemently contended for the petitioner that in the earlier round when the matter having been conclusively decided by the Honourable Supreme Court nothing was left to be debated upon again then re-opening of the matter on the grounds mentioned in the impugned order is an act void, ab initio, without lawful authority and without jurisdiction. It was urged with considerable force that principle of constructive res judicata is firmly attracted to the present matter because all the points re-agitated were earlier taken, discussed and finally determined.
' To the contrary, Mr. Abdul Sattar Khan, learned counsel for the respondents argued that for proper appreciation of the matter-incontroversy, the back history of the case is to be kept in mind and because the petitioner has subsequently executed a gift deed in favour of his brother, therefore, he is left without no interest or title in the shop and it being a new development thus, the learned District Appeal Court was justified in setting aside the judgment of the trial Court which was passed in haste and without recording evidence of the parties. He also argued that single revision petition is not competent against two orders, the one passed by the District Appeal Court and the other one passed by the learned Senior Civil Judge who after remand sent the case to the District judge for opinion and guidance. Reliance was also placed on Sultan Ahmed Sharif v. Mathura Mohan Chowdhury and others PLD 1958 Dacca 36 relevant 39; Pusapati Ramabhadra Raju v. Avitha Ramanna and others AIR 1952 Mad. 125; and ILR 14-L 230.
9. The combined and careful study of the above facts lead one to the conclusion that a still born matter has been reopened on the basis of sheer technicality. The learned Additional District Judge has not taken a little care to read the elaborate judgment of the Honourable Supreme Court maintaining the order/judgment of this Court wherein all the points-in-controversy discussed therein were attended to and were firmly and finally determined once for all. To the contrary the District Appeal Court instead of showing respect and obedience to the final judgment of the Honourable Supreme Court has given more preference to technicality because in his view reply from the present petitioner, who was respondent in the objection petition, was essentially required and in his view the recording of evidence was desirable, conveniently ignoring the established facts on record, all these issues were previously agitated/taken up and were fairly addressed to and thereafter were conclusively decided. What more was left to be reconsidered he could not attend to, therefore, one is shocked to see the way the learned District Appeal Court has acted.
' While going through the objection petition filed for the third time, the old plea has been taken again which did receive approval from the apex Court. Both the judgments particularly that of the Honourable Supreme Court were available on the case file wherein all material facts have been exhaustively and elaborately dealt, on a blind could refuse to perceive.
' It is the foremost obligations of subordinate Courts to show greatest respect to the judgments of the superior Courts. They. Under the Constitutional command, are bound to comply with the same and to give true and full effects to the judgments of the Honourable Supreme Court and this Court as well. The plain language of Articles 189 and 190 of the Constitution do not require any debate nor it is susceptible to any different interpretations. Non compliance therewith or violation of decision of the Honourable Supreme Court would expose Judicial Officer of the subordinate Court to grave consequences. It is the solemn duty of the subordinate Courts to faithfully comply with such decision. They are neither permitted to make pick and choose in the same nor they can make a departure from it on any ground much less a technical one.
10. In the case of Muhammad Ashraf and others v. Federation of Pakistan and 3 others 1999 SCM R 336 it was held by the apex Court that its decision even if is based on niceties and legal technicalities are binding on all other Courts. Second displeasure was, therefore, expressed by their Lordships against the Authority not adhering to its decision thus, rendered earlier.
' Again it is the fundamental obligation of the Courts to kill frivolous lis in its very inception and shall not be allowed even to take a single breath. The backlog crises are now very seriously taken.
Through constant and concerted efforts this serious problem is being channelized and managed to cut its monstrous size posing imminent danger to the system itself. All these efforts made day and night by the superior Courts would receive grave set back if the subordinate Courts act the other way or fail in their duty to check and counter frivolous/malicious litigation. The people at large would also loose confidence in the system of matters closed and final one are re-opened through the dirty tactics and tricks of art of technicalities.
11. The learned Additional District Judge has acted carelessly in the dispensation of justice and conveniently ignored that the present petitioner has been vexed not twice but thrice because for remanding the case to comply with unessential and negligible technicality. The apex Court in the case of Imtiaz Ahmad v. Ghulam All PLD 1963 SC 382 enunciated a golden principle, a sustainable one for centuries to come, which is reproduced below:-- "The proper place of procedure in any system of administration of justice is to help and not to thwart the grant to the people of their rights. All technicalities have to be avoided unless it be essential to comply with them on the ground of public policy---Any system which by giving effect to the form and not to the substance defeats substantive rights (and) is defective to that extent."
12. Judged from this angle as well, the impugned judgment of the learned Additional District Judge is nothing but a nullity in the eye of law and is unsustainable on any ground and on any premises whatsoever.
' The principle and doctrine of constructive res judicata was squarely and firmly applicable in the instant case because the respondents have made a crude attempt to re-open a case/matter which was finally and conclusively decided, it amounts to wanton act of infusing a life into a dead horse, therefore, the objection petition filed by the respondents without any fear of rebuttal can be termed on its face to be frivolous and malicious one. It is an iron clad principle of justice that no one shall he allowed to retain ill-gotten gains albeit facts and some principle of law might go in its favour. The doctrine of res judicata is deeply entrenched in the system and provides relief and respite to the opposite party from being vexed twice on the same issue. In this case the objection petition was dismissed by the learned Senior Civil Judge/Executing Court after giving opportunity of hearing in a fair manner to the counsel for the parties who had also fairly attended to the legal and factual aspects of the case, therefore, her order was not liable to interference and that too in the manner as has been done by the District Appeal Court.
' For the foregoing reasons and discussion, this petition is accepted, the impugned judgment of the learned Additional District Judge-IV, Peshawar dated 27-5-2004 is set aside being ab initio, void without lawful authority, in excess of jurisdiction as it seriously offends against the judgment of the apex Court, dated 5-4-2004. Accordingly the order of the learned Executing Court/Senior Civil Judge, Peshawar dated 19-5-2004 is restored. The learned Senior Civil Judge/Executing Court is directed to recommence the execution proceedings forthwith on the application for restitution filed under section 144.C.P.C. By the petitioner and to restore the possession of the shop/premises to the petitioner. If any type of resistance is offered by the respondents/J.Ds. The Executing Court may take immediate recourse to the enabling provisions by putting the respondents/J.Ds. Under detention in civil prison and may also apply other modes permissible under the provision of Order XXI, C.P.C. The proceedings shall be completed within one month and compliance report shall be submitted to the Registrar of this Court.
' These are the detailed reasons for the short order of even date.