1. ' Application (C.M.A. No,9950 of 1998) under Order VII, rule 11, C.P.C. Read with section. 151, C.P.C. Has been filed by defendant No,6 for rejection of the plaint on the grounds that the suit of the plaintif f is barred by the principles of constructive res judicata and by limitation.
2. ' The plaintif f filed the present suit for declaration, possession, injunction and cancellation of documents with 42 prayers, inter alia, claiming declaration as under:-- "To declare that the order dated 7-2-1961 to put this property in earmarking list became final up to the stage of the Chief Settlement Commissioner of Pakistan who is highest and final authority under the settlement laws, and no settlement authority can supersede, alter or change this final order .
3. ' To declare that under order dated 14-12-1965, the property was included in auction list and was available as having not been transferred to any person was selected by In Lieu certificate holder , and the transfer is legal and valid.
4. ' To declare that the order dated 18-9-1962 of the Settlement Commissioner , to put the property in auction is against law and without jurisdiction.
5. ' To declare that the order dated 14-12-1965 is illegal, biased and founded on illegal order of the Settlement Commissioner , which was in itself void and infructuous and without jurisdicti on and that it is not finding or point in issue, but the High Court copied the order of the Settlement Commissioner without reverting to its merits.
6. ' To declare that the para. 5 of the judgment dated 14-9-1971 is not binding as it is in conflict with statutes the Press Notes.
7. ' To declare that by withdrawing the petition in. Supreme Court, no new issue was decided except that the para. 5 of L.P .A. Remained intact, with its ef fects and implications, whether this way or that way .
8. ' To declare that the L.P.A. Order is at the most directions to be complied with and these are not orders by itself. So, the order dated 13-4-1974 is illegal and without jurisdiction.
9. 'To declare that the order of the Deputy Settlement Commissioner dated 13-4-1974 is not an independent order , nor the plaintif f was before the Settlement Commissioner and his instructions are without notice to the plaintif f and on her back and are not judicial orders. Also that theDeputy Settlement Commissioner was not authorized to issue any such order . Also that the Deputy Settlement Commissioner is inferior to the Additional Settlement Commissioner who transferred in lieu somewhere on 24-3-1966.
10. ' To declare that the order dated 30-6-19 75, is illegal, not speaking judgment, where the authority did not use his independent mind. The findings are but copy of the lower Court and so invalid.
11. ' To declare that the judgment dated 21-1-1996 passed after more than one year after hearing, is valid in the eye of law .
12. ' To declare that the judgment dated 21-1-1996 of the High Court is contrary to law laid down by superior Courts.
13. ' To declare that the learned Judges in L.P.A. No,109/K of 1996 did not take fully into consideration the question of in lieu transfer and the two Press Notes and Rulings of PLD 1964 Lah. 388 and PLD 1987 SC 512, and that finality of putting the property to earmarking under orders dated 7-2-1 961 of the Chief Settlement Commissioner and that the order dated 13-4-1974 of the Deputy Settlement Commissioner is illegal as it superseded the order dated 19/24-3-1966, of the Additional Settlement Commis sioner , and that the order dated 30-6-1975, is void as not a finding, but copy of the order of the Deputy Settlement Commissioner dated 13-4- 1974 and is full of misrepresentation of facts and misinterpretation of law, where true facts were not considered which has resulted in miscarriage of justice, and so the order is void.
14. ' To declare that the order to auction dated 18-9-1962, is against previous orders of the Settlement Commissioner , which were to dispose it by earmarking. The Settlement Commissioner had no review powers against his predecessor and or Chief Settlement Commissioner , so this part of the order is void and whole structure built on it i,e, High Court and Supreme Court orders are also, void, resulting that the property can be disposed of by any means and ways as provided under Settlement laws.
15. ' This Honourable Court may be pleased to declare that in case the property can be disposed of under Supreme Court order (while there is no such order), it can also be disposed of under `in lieu' Scheme also and as such transfer to the plaintif f was legal.
16. ' That in Revision No,322 of 1961, Writ Petition No,400 of 1963, L.P.A. No,53 of 1966, in Writ Petition No,237 of 1976, C.P.L.A. No,109/K of 1996 and Revision No,5/K of 1996, it is ordered to dispose it of by auction, the transfer is thus, against above decisions, if it can be disposed of otherwise than auction, then the property was legally transferred in lieu and it was not' available when alleged time-barred forms were filed, they should not have been even admitted, what to say of time-barred applications."
17. ' The case has a cheered history . The suit has been filed after two rounds of litigation before the Settlement Authorities and two rounds under the writ jurisdiction unto to the Supreme Court.
18. ' The facts can be summarized as follows:-- ' Plot No,1 13, Depot Line, Cantonment Karachi having two buildings, one known as "Alice Building" has already been transferred to one Abdul Hakim, which has attained finality . The other portion is the subject- matter of the present suit.
19. ' Initially the dispute was between Shaukat Ali Khan (now deceased) and one Abdul Matin. Shaukat Ali Khan, a claimant, claimed to be in occupation of a part of the suit house of the main premises filed C.H. Form on 31- 5-1960 for the transfer of the main build ing. The building was transferred and P.T.O. Was issued in his favour in respect of the premises in suit. Notices were issued for cancellation of P .T.O. Granted to him.
20. ' After hearing the parties, the Settlement Commissioner passed order dated 18-2-1962, whereby , P.T.O. Issued in favour of Shaukat Ali Khan was cancelled and ordered transfer of the premises in the name of Abdul Matin Allahwala treating him as the informant. Shaukat Ali Khan challenged such order in Writ Petition No,400 of 1963 citing, amongst others, Abdul Matin Allahwala as respondent No,3. The petition was decided by learned Single Bench of this Court vide judgment dated 14-12-1965, whereby the order of the learned Settlement Commissioner , whereby the property was transferred to Abdul Matin, was set aside and the property was ordered to be disposed of by public auction and Shaukat Ali Khan was allowed to participate in the auction proceedings, if so advised. Order was challenged by Shaukat Ali Khan and Abdul Matin through L.P.As.
21. Nos.48 and 53 of 1966.
22. ' During the pendency above L.P.As. Defendant No,5, Zahoorul Haq got the allotment of the disputed premises in "lieu certificate" who according to the plaintif f, associated the plaintif f vide agreement of association dated 30-7-1967 surrendering his right in favour of the plaintif f, which was accepte d by the Additional Settlement Commissioner . In the abovesaid L.P.As. Zahoorul Haq and the plaintif fs were joined as party . On their application, the said L.P.As. Were dism issed. In para. 5 of the judgment dated 14-9-1971 it was observed as follows:-- "It was brought to our notice that the learned Single Judge had directed that the disputed building should be put to public auction but that in violation of this direction, the Settlement Department was intending to transfer the property to one Zahoorul Haq and, therefore, this person was joined as a party in the present proceedings. This Zahoorui Haq is represented before us by Advocate Mr. M.M.K.A. Zai. Mr. Zai, however , states that ' Zahoorul Haq surrendered his right fn favour of some lady namely Mst. Hameeda Shamim. This Mst. Hameeda Shamim has also made an application for joinder as party through her Advocate Mr. Zai. We have heard Mr. Zai. We are of the view that the Settlement Department cannot act in variation of the order of the learned Single Judge by which the property had been ordered to be put to public auction, unless the Settlement Department was aggrieved by this part of the judgment and had challenged in appeal. Since the Settlement Department has not come in appeal itself, this part of the judgment of the learned Single Judge is binding with the department.
23. Syed Wasim Hamid Rizvi, Settlement Commissioner (Legal), is before us and he has duly taken note of our observation."
24. ' The order dated 14th September , 1971, passed in L.P.As. Nos.48 of 1966 and 53 of 1971 was challenged in Civil Petition for Special Leave to Appeal No,K-196 of 1971 by the plaintif f whereas Shaukat Ali and Mst.
25. Hajra Begum, predecessor -in-interest of defendant No,6, by Civil Petition for Special Leave to Appeal No,K-2 of 1972. The petition filed by the plainti ff was dismissed as withdrawn vide order dated 2-2-1972, whereas the petition filed by Shaukat Ali Khan and Mst. Hajra was dismissed:- "The learned Advocate for the petitioners has stated that the petitioners have filed an application under Scheme No,8. This remedy , if available to the petitioners, will be considered on merit of the petitioner's application."
26. ' The Deputy Settlement Commissioner vide order dated 13-4-1974 dismissed the application of Shaukat Ali Khan, Mst. Hajra Khanum, Muhammad Saeed and Mst. Saeeda Khatoon by observing that "from the above order of the High Court and Supreme Court, it is evident that the property in question can only be disposed of by public auction, as directed by the Honourable High Court vide order dated 14-12-1965 passed in Writ Petition No,400 of 1963, which has been upheld by the letters patent bench as well by necessary implication the transfer document issued to Zahoorul Haq also stands cancelled".
27. ' The above order was challenged by the parties including the plaintif f through revision applications under section 20(3) of Displaced Persons (Compensation and Rehabilitation) Act, 1958. The revision applicatiqn filed by plaintif f was rejected having no ground, whereas the revision filed by Shaukat Ali Khan, Mst. Saeeda and Mst. Hajra were remanded for rehearing afresh on merii and order dated 13-4-1974 was set aside to that extent only. The orders dated 13-6-197 5 and 13-4-1974 were challenged by the plaintif f by Writ Petition No,237 of 1976 wherein defendant No,5 was also a party .
28. ' Learned counsel for the plaintif f had taken a plea before the learned Single Judge that on 24-3-1966 the property in question was transferred to Zahoorul Haq in pursuance of in lieu certificate, as such it was not available after said date and it being so, the orders of the Division Bench and Supreme Court have no bearing on the merits of the case relating to the transfer of the said property in favour of Zahoorul Haq. It was also contended that the question before the Division Bench of this Court was only whether the property was to be transferred to deceased Shaukat Ali or Abdul Matin Allahwala and the matter was never considered on merit of the case of Zahoorul Haq and had taken the plea that after the order dated 14-12-1965 passed by the learned Single Bench, the property in question could be disposed of by way of any method permissible in the Settlement Laws, Rules including against lieu certificate.
29. ' The contentions raised on behalf of the plaintif f were found to be devoid of any force and the petition was dismissed by order dated 21-1-1996.
30. ' The plaintif f preferred a civil petition for leave to appeal, which was also dismissed vide order dated 15-10- 1996, and leave was refused with the following observations in para. 2 of the judgment:- "Mr. M.M.K.A. Zai, learned Advocate Supreme Court for the petitioner has advanced several contentions but he has no answer to the finding of the learned Single Judge of the High Court that in view of the order dated 24-3-1996 passed by the High Court in C.P. No,400 of 1963 directing that the building should be put to auction, which order was confirmed by a Division Bench of the High Court by order dated 14-11-1971 and though the petitioner Mst. Hameeda had taken the matter to this Court, the petition was dismissed as withdrawn and as such, insofar as Mst. Hameeda is concerned, the matter had attained finality and could not be reopened again. In the impugned judgment of the High Court, it has rightly been observed that the order in L.P.As. Holds the field and by virtue of the said order the petitioner is not entitle d to the property in question. It may be added that Mr. M.M.K.A. Zai, learned Advocate Supreme Court for the petitioner has conceded that in the petition filed by the petitioner before this Court against the judgment passed in L.P.A., which was withdrawn by the petitioner and was accordingly dismissed, the same contention has been advanced, which are now being taken in the present petition after dismissal of their petition by this Court in earlier round of litigation. No further cause of action has accrued to the petitioner ."
31. ' I have heard the learned counsel for the parties. The contention of Mr. Akhta r Mehmood was that under the provisions of section 9, the Civil Court being the Court of ultimate jurisdiction can try all suits, unless barred.
32. He has emphasized on the term "unless barred" used in the title of section 9 and also contended that the Court shall have jurisdiction to try all suits of civil nature excepting those suits of which their cognizance is either expressly or impliedly barred. He further contended that the suit filed by the plaintif f is barred under the provisions of constructive res judicata as contained in section 11, C.P.C. The matter in dispute between the parties reached up to the Supreme Court and concluded whereby the leave to appeal filed by the plaintif f was refused. Thus the orders attained finality. He further contended that the plaintif f has challenged the order passed by the Settlement Authorities, which were subject-matter of the proceedi ngs between the parties in writ petitions. The limitation for filing suit against the orders of the Authorities under the provisions of Article 120 (residuary Article) of the Limitation Act, is 6 years and all the orders passed by the Settlement Authorities were beyond the period of limitation and were the subject-matter of the adjudication through writ jurisdiction, as such the plaint of the suit is liable to be rejected. In support of his contention, he referred the case of (i) Abdul Majeed and others v. Abdul Ghafoor Khan and others PLD 1982 SC 146 and (ii) Pir Bux v. Chairman, Allotment Committee PLD 1987 SC 145 .
33. ' Learned Additional Advocate-General appearing on behalf of the defendants Nos.1 to 4 has supported the application filed by defendant No,6 and maintained that the plaint is liable to be rejected, suit being barred by law.
34. ' Conversely , the learned counsel for the plaintif f maintained that the matter has not been adjudicated on merit and the principle of res judicata will not come in the way of the plaintif f. He further contended that the transfer in favour of the defendant Zahoorul Haq has not been set aside nor remained the subject-matter of the petitions, as such, the suit is not hit by the principle of res judicata or constructive res judicata nor barred by limitation.
35. In support of his contention, he referred the case of (i) Jan Muhammad v. Muhammad Khan AIR 1941 Lah.
36. 169, (ii) Shaikh Barkat Ali v. M.S. Zaman PLD 1968 Lah. 770 and (iii) Messrs Pakistan Tobacco Co. v.
37. Pakistan Cigarette Labour Union PLD 1964 Kar .337.
38. ' It is not disputed that the party in the present proceedings viz. The plaintif f and defendant No,6, predecessor - in-interest litigated twice under the writ jurisdiction, which terminated at the apex Court, by dismissal of leave to appeal filed by the plaintif f on accou nt of withdrawal as well as leave was refused in Civil Petition No,109 of 1996 wherein the plaintif f has challenged the orders whereby the revision application filed by her was dismissed.
39. ' Learned counsel for the plaintif f has, in fact, reiterated the same pleas, which were not found favourable by the learned Single Judge of this Court as well as by the Honourable Judges of the apex Court. Even the review petition also dismissed by order dated 12-2-1997, thus, the order passed by the Settlement Authorities attained finality and were approved in writ jurisdiction of this Court as well as by the Supreme Court. The principle of constructive res judicata was applied in similar circumstances in the case of Abdul Majeed (supra). The facts of this case were that the petitioner purchased agricultural land, which was preempted by the predecessor -in- interest of the respondent and obtained decree for possession regarding the land in question. The petitioner's entertain the suit at all as it was hit by the principle of res judicata. The petitioner then filed regular second appeal in the High Court which having been dismissed in limine by a learned Single Judge they filed the petition for leave to appeal and plea of res judicata was addressed as under:-- "There is no force in any of the arguments raised by the learned counsel. He admits that the petitioners filed the suit after the final decision by the High Court, to remove its effect, so as to get their claim sanctioned from the Rehabilitation Authorities. It is, therefore, not correct to say that the High Court decision would bar the fresh enquiry before the Rehabilitation Authorities only. Whatever the forum whether of special or general jurisdiction it will operate as a bar on the reopening of the case, except of course to the extent the law permits by way of review/appeal. As was held by this Court in the case of Muhammad Chiragh-ud-Din relied upon by the learned Courts below , even if the provisions of section 11, C.P.C. Do not apply in terms, in such-like cases, the general principles of res judicata would apply . Therefore, there is no force in the second argument of the learned counsel either . In this connection learned counsel also tried to argue that the principle of constructive res judicata would not apply in cases where section 11, C.P.C. Does not apply , in terms. There is no reason to exclude a particular kind of res judicata when considering these questions, neith er on the basis of any law nor on any other general principle.
40. ' Before closing the discussion on this question, it needs to be mentioned that resort to fresh litigation in lower forums wherein decisions by superior Courts are brought under challenge, depending upon circumstances of each case, might come in conflict with the provisions of the Constitution where under certain decisions are binding on all Courts. It might also, again depending upon circumstances of each case, involve the criticism of a decision of one Bench of the same superior Court, by another Bench. For example, in this very case, if the arguments advanced before the learned Single Judge in the High Court, would have prevailed, it would have resulted in the criticism of a Division Bench judgment of the same Court, which decided the letter patent appeal in an earlier round of litigation.
41. ' The rule which is fully attracted to this case, as already mentioned, was laid down in Muhammad Chiragh-ud- Din Bhatti that even if section 11 of the Civil Procedure Code may not, in terms, apply in support of the plea of res judicata, it can hardly be disputed that the general principles of res judicata are clearly attracted to debar a party from repaginating the matter afresh by a civil suit, which had been put at rest by a judgment of the High Court passed in writ jurisdiction."
42. ' In the case of Pir Bux (supra), the doctrine of estoppel was explained as contained in section 11. C.P.C. It was held as under:-- "If a person was a party then the judgment of the competent Court as a plea is a bar or as an evidence conclusive between the same parties upon the same matter directly in question in another Court or another action between the same parties in the same Court. In legal parlance this bar is known as estoppel by judgment or res judicata.
43. ' A decision once made in a case, by the highest Court empowered to pass upon it, is conclusive upon the parties to the controversy and their privies, who are not allowed afterwards to revive it in a new proceeding for the purpose of raising the same or any other questions. The matter in controversy has become res judicata, a thing definitely settled by judicial decision; and the judgment of the Court imports absolute verity . Whatever the legality of an individual act, or the validity of a legislative enactment, the rule of finality is the same. The controversy has been adjudged, and once finally passed upon is never to be renewed.
44. ' The rule of conclusiveness to this extent is one of the most inflexible principles of the law; insomuch that even if it were subsequently held by the Courts that the decisithi in the partic ular case was erroneous, such holding would not authorize the reopening of the .Old controversy in order that the final conclusion might be applied thereto.
45. ' The question whether decision is correct or erroneous has no bearing upon the question whether it operates or does not operate as res judicata. The doctrine is that in certain circumstances the Court shall not try a matter no longer open to contest by reason of a previous decision. In these circumstances it must necessarily be wrong for a Court to try the suit or issue, come to its own conclusion thereon, consider whether the previous decision is right and give effect to it or not accor ding as it conceives the previous decision to be right or wrong. To say, as a result of such disorderly procedure, that the previous decision was wrong and that it was wrong on a point of law, or on a pure point of law, and that, therefore, it may be disregarded, is an indefensible form of reasoning. For this purpose, it is not true that a point of law is always open to a party .
46. ' On the other hand it is plain from the terms of section 11 of the Code that what is made conclusive between the parties is the decision of the Court and that the reasoning of the Court is not necessarily the same thing as its decision, the object to the doctrine of res judicata is not to fasten upon parties special principles of law as applicable to them inter se, but to ascertain their rights and the facts upon which these rights directly and substantially depend, and to prevent this ascertainment from becoming nugatory by precluding the parties from re-opening or re-contesting that which has been finally decided."
47. As already observed, the matter has been finally decided between the parties (plaintif f and defendant No,6) by the Supreme Court. Thus the suit of the plaintif f is hit by the principle of constructive res judicata. The order of the Rehabilitation Authority has also been challenged after expiry of the limitation; as such the suit of the plaintif f is also barred by limitation. The case-laws referred by the learned counsel for the plaintif f are distinguishable on facts and do not favour the case of the plaintif f.
48. The provisions of Order VII, rule 11, C.P.C. Enjoins upon the ID Court to bury the stillborn child at its earliest stage and the plaintif f, who litigated in respect of the subject-matter up to the Supreme Court, has turned again by presenting a plaint in respect of the matter , which has already been conclusively adjudicated between the parties. Consequently , the suit of the plaintif f is hit by the principle of res judicata as well as barred by time.
49. The plaint is, therefore, rejected with special cost of Rs,25,000. All the pending applications are also dismissed having become infructuous.
50. ' Above are the reasons of my short order passed on 17-8-1999.