1. ' The plaintiff has filed this suit for recovery with following prayer:--
(a) Decree for Rs,52,27,521.90 against the defendants jointly and severally and in favour of the plaintiffs.
(b) Cost of the suit.
(c) Interest or profit at the rate 15% P.A. Till the final payment is made.
(d) Any other relief which this Honourable Court may deem fit and proper."
2. ' The brief facts of the matter are that the plaintiff is carrying on in Karachi business of commission agency, export of ginned and pressed cotton to various countries. Prior to the amendment in section 4 of the Income Tax Act by Finance (Supplementary) Ordinance, 1972 the sale proceed of goods which were exported before 12-5-1992 in respect of which the bills of exchange were drawn in Pakistan rupees was not to be deemed as income. The plaintiff on various dates between the 15- 11-1971 to 28-2-1972 against various contracts entered into by it with foreign buyers exported and shipped a total of 17,923 bales of ginned and pressed cotton (7000 bales to China and 10923 bales to USSR). The plaintiff had delivered the bills of export for 97% to China and 95% to USSR and realized the sale proceeds in respect of the said bills to the said extent before 12-5-1972. The balance amount of 3% from China and 5% from USSR was received after 12-5-1972. All the bills of exchange covering the said export were drawn in Pakistan rupees and there sale proceeds were received/realized through National Bank of Pakistan and United Bank Limited. Both these banks made a total deduction of Rs,4,13,146.74 from the balance remittances received by the plaintiff i.e, 3% from China and 5% from USSR towards the said export and such deduction was made under the provisions of Finance (Supplementary) Ordinance, 1972: ' The plaintiff further on various dates between 15-4-1972 to 12-5-1972 against various contracts entered into by it with foreign buyers exported and shipped a total of 4486 bales of ginned and pressed cotton and delivered bills of export before 12-5-1972. The price of the goods was to be paid and realized through banks on negotiation of documents. All the bills of exchange covering this export were drawn in foreign currencies i.e, US $ and Pound sterlings. The sale proceeds thereof were received or realized through National Bank of Pakistan and United Bank Limited. Out of the sale proceed realized in respect of this export, the two banks namely, the National Bank of Pakistan and United Bank Limited deducted Rs,31,39,686.60 equal to 55% of sale proceeds as tax under the provision of Finance (Supplementary) Ordinance, 1972.
3. ' The plaintiff was aggrieved by the above deductions therefore, filed C.P. No,D-738 of 1973 in this Court against defendants. By judgment, dated 11-8-1983 this petition was decided wherein the Impugned actions were declared to be in violation of principles of natural justice and thus void and of no legal effect. After this judgment, the plaintiff through letter's annexed with the plaint approached the defendants for refund of the amount. It seems that the defendants did not respond. The plaintiff, therefore, through its Advocate letter, dated 20-3-1986 served legal notice calling upon the defendants to refund the amount of Rs,35,52,833.34 to the plaintiff and relied upon the judgment passed in the said C.P. No,D-738 of 1973. This legal notice was also not responded, hence this suit.
4. ' The defendants filed their separate written statements. On the basis of the pleadings following issues were framed:-- "(1) Whether the suit is not maintainable and this Honourable Court has no jurisdiction?
(2) Whether the suit is barred by time?
(3) Whether the suit is barred by resjudicata?
(4) Whether that suit has not been instituted by proper and authorized person?
(5) Whether the suit has not been signed and verified by proper and authorized persons?
(6) What was the rate of exchange at the material time?
(7) What was the quantity of ginned and pressed cotton bales exported by the plaintiff to the various countries between 15-11-1971 and 28-2-1972 and between 15-4-1972 and 12-5-1972?
(8) In which currency the bills of export in respect of the above cotton bales were drawn and on what dates were the same delivered?
(9) On what dates payments in respect of above cotton bales released by the plaintiff?
(10) Whether the deductions referred to in paras.8, 10 and 16 of the plaint are illegal?
(11) Whether the plaintiff is entitled to claim Rs,16,74,698.56 by way of damages?
(12) Whether the plaintiff is entitled to any relief from the defendant No,??
(13) To what relief is the plaintiff entitled and from which of the defendants?"
5. ' On 13-8-1998 a statement was made by the counsel for the plaintiff that the matter does not require any evidence and can be decided on question of law and that he admits all the documents filed by the defendants. Likewise Mr. I.H. Zaidi, learned counsel for the defendant No,4 also subscribed to the view that only question of law is involved and the documents filed by the plaintiff may be taken into consideration at the stage of argument. On this basis the order was passed fixing the case for final arguments.
6. ' Mr. Abdul Rauf, learned counsel appearing for the plaintiff has contended that plaintiff has acquired vested right to the refund of the amount claimed in the suit on basis of judgment dated 11-8-1983 passed in the plaintiff's said C.P No,D-738 of 1973. He has relied upon the case of Al- Samraiz Enterprise v. Federation of Pakistan 1986 SCMR 1917, Muhammad Hussain v. Muhammad 2000 SCMR 367, Associate Food Industry Ltd. v. Pakistan 1985 SCMR 1753, Associated Trading Co. Ltd. v. Central Board of Revenue PLD 1987 Kar. 63, Pir Shah Mardan Shah v. Chief Land Commissioner PLD 1974 Kar.
7. 375.
8. ' On the other hand Mr. I.H. Zaidi, learned counsel appearing for the defendant No,4 has contended that the recoveries were made under valid piece of law and by virtue of section 6 of the General Clause Act the plaintiff is not entitled to refund of the amount. He further, argued that the judgment relied upon by the plaintiff has prospective effect and in any case the defendant No,4 having merely acted as an agency for collection under the law and transferred the amount to the State Bank of Pakistan therefore, there is no liability on the defendant No,4. In support of his submissions, he has relied upon the case of Idrees Ahmad v. Hafiz Fida Ahmad Khan PLD 1985 SC 376. Mr. Abdul Rauf learned counsel for the plaintiff in rebuttal has argued that the plaintiff seeks relied only against the defendant No,1 . He further contended that Court in the said C.P. No, D-738 of 1973 has already held the action of recovery from the plaintiff as void and no limitation period operate against a void order. In support he has further cited the case of Hussain Bakhsh v. Settlement Commissioner PLD 1969 Lah. 1039, Shafi and 4 others v. Munshi and 2 others PLD 1973 H.N. 66 at page 89 and Khuda Bakhsh v. Khushi Muhammad PLD 1976 SC 208.
9. ' I have considered the arguments of the learned counsel and have gone through the record.
10. ' I propose to deal with Issue No,3 first in which maintainability of the suit has been challenged on the ground of resjudicata. This issue has been framed on basis that the plaintiff has before this suit filed C.P. No,D-738 of 1973 which has been decided by a Division Bench of this' Court vide judgment, dated 11-8-1983. Photo copies of the memorandum of the said C.P. No,D-738 of 1973 and the judgment, dated 11-8-1983 have been placed on the record. The perusal of the memorandum petition shows that the parties in it were the same as in this suit. The facts and the subject-matter pleaded in the said petition are similar as pleaded in this suit. The prayer made in the petition was as follows:--
(i) Declare that the Income Tax (Amendment) Act, (III of 1975) is ultra vires of the Constitution and is an invalid piece of legislation and is of no legal effect;
(ii) declare that the deduction of Rs,413,146.74 being 55% of the balance amount of the sale proceeds in respect of 17,293 bales of cotton as tax "income from other sources" by the respondents is contrary to or in violation of the proviso to Explanation 6 to subsection (1) of section
(4) of the Income Tax Act, 1992, and, therefore, without lawful authority;
(iii) direct respondents to refund the said amount Rs,413,146.74; declare that sections 8, 9, 10 and 11 of the Finance (Supplementary) Ordinance, 1972, to the extent these sections treat the sale proceeds as income and levy tax and the Post-Constitution President's Order 5 of 1972, Financial Laws Order, 1972 is ultra vires of the Constitution and, therefore, void, and all the actions taken, acts done, notifications, directions and orders issued, rules made to the extent of and pertaining to levying of tax or deducting 55% amount of the sale proceeds of cotton exported by the petitioners, in pursuance of Finance (Supplementary) Ordinance, 1972 are without lawful authority and/or of no legal effect;
(iv) declare that deduction of 55% of amount of the sale proceeds as tax on "income tax from other sources" in respect of 4,486 bales of cotton exported by the petitioners before 12-5-1972 is without lawful authority; (v), direct the respondents to refund the amount deducted as tax from the total amount of sale proceeds of 4,486 bales of cotton exported by the petitioners before 12-5-1972 and which were realized after 12-5-1972;
(vi) to grant such other, further and/or additional relief as this Honourable Court may, in the circumstances of the case, deem fit and proper; and
(vii) award costs of this petition.
11. ' This petition was decided vide judgment, dated .11-8-1993 the relevant/operative part of it is reproduced as follows:-- "11. The learned counsel for the petitioners sought to attack the process of legislation the levy and the collection of the purported income tax, on a number of grounds. After hearing the learned Advocates for the parties we, are however, of the opinion that these petitions can be disposed of on the short ground that the petitioners were neither given any show-cause notice nor opportunity of being heard before the levy and/or collection of the so-called income-tax.
12. It is correct that Finance Ordinance No,XVII of 1972 vide Explanation 6 added in section 4 subsection (1) of the Income Tax Act, 1922 provided that from the referred export proceeds of goods which are realized after the mentioned date shall, to the extent of 55% of such proceeds shall be deemed to be income chargeable under the head "income from other sources", and that as per amendment made in section 12, subsection (2-A) it is laid down that 'no allowance of any expenditure' shall be made in respect of income from export proceeds as specified in Explanation 6 referred above and that under subsection (3F) the authorized dealer in foreign exchange, before making such payment is directed to make deduction of income-tax and that no `loss' shall be set off against income from the specified export proceeds, we find noting in the Act to deny the affected party the right to show cause and opportunity of being heard. Under the amending law.
12. 55% of the export proceeds of goods exported before 12th May, 1972 is deemed to be income chargeable as "income from other sources", and neither any "allowances for any expenditure" nor any loss is allowed to be set off against the said income thus, made. There may be other items, Mr. Ali Ahmed Fazeel the learned counsel for the petitioners argued, which might affect the amount and/or liability to pay the alleged tax. The learned counsel submitted that the petitioners received and/or are likely to receive bills for quantity/quality claims, agents commission and such other claims which though may not fall in the category of or be described as 'allowance for any expenditure' or 'loss' to be set off against 'income' yet may be relevant for determining the income or ultimate liability of the petitioners. It would be relevant here to note that Mr. Shah Jamil Alam the learned counsel for the respondents, submitted that if any such bills or claims are submitted, the departmental authorities would even now consider their admissibility in accordance with the law.
13. In the context of the above submissions made by the learned counsel for the parties we may refer her to the well-settled principles of natural justice laid down by the Honourable Supreme Court. It has been held by various authoritative pronouncements that in the absence of any express words used in the enactment giving such power excluding the application of principles of natural justice, the Courts of law are inclined generally imply that the power so given is coupled with a duty to act in accordance with such principle of natural justice as may be applicable in the facts and circumstances of a given case where orders affecting the rights of citizens in point of property or other rights had been passed without giving an opportunity for defence to the persons concerned. It has been further held that principle that no one can be condemned unheard' is one of the settled principles of law and such a principle will be read into the relevant law unless its application is excluded by express words. Reference if needed be made to the latest case reported as Abdul Wadood v. Chief Law Commissioner PLD 1983 SC 183 wherein the Honourable Supreme Court held:- ' The proposition of law that the rule of natural justice shall be read into the provision of every enactment unless the contrary is expressly provided is by now well-established.
14. We may also usefully refer here to the case of Commissioner of Income tax v. Fazlur Rehman PLD 1962 SC 410, in that case while repelling the contention raised that since an order passed in the proceedings under section 33-A of the Income Tax Act, 1922 was an administrative order inasmuch as under the said section no orders can be made against the assessee, it was not necessary to give an opportunity of hearing to the party who had filed the application, the Honourable Supreme Court, held:-- ' we do not think the mere absence of a provision as to notice can override the principle of natural justice that an order affecting the rights of a party cannot be passed without an opportunity of hearing to that party'.
13. ' The Honourable Supreme Court further held:-- ' "At the same time it should be pointed out that the right to be heard is not confined to proceedings which are judicial in form. As has been held by this Court in the Chief Commissioner, Karachi v. Mrs. Dina Sohrab Katrak (1) the maxim 'no man shall be condemned 'unheard', is not confined to Courts but extends to all proceedings, by whomsoever held which may affect the person or property or other right of the parties concerned in the dispute and the maxim will apply with no less force to proceedings which affect liability to pay a tax.
14. ' We hold, that an opportunity of hearing was essential and in its absence the order of the Commissioner of Income-tax is void. These two appeals are dismissed but there is no order' as to costs." (1) PLD 1959 SC 54.
15. Admittedly actions to the prejudice of the petitioners have been taken which affect their property and other rights. Such acts taken, without giving show cause or opportunity of showing cause are against the principles of natural' justice and thus, void as was held in the case of Commissioner of Income-tax v. Fazlur Rehman (ibid) .
16. For the reasons discussed above the impugned actions are declared to be in violation of principles of natural justice and thus void and of no legal effect."
15. ' Section 11 of C.P.C. Is as follows:- "11. Resjudicata.--- No Court shall try any suit or issue in which the - matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.
16. ' Explanation I.--- The expression 'former suit' shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto.
17. ' Explanation II.--- For the purposes of the section, the competence of a Court shall be determined irrespective of any provisions as to a right of appeal from the decision of such Court.
18. ' Explanation III.--- The matter above-referred to must in the former suit have been alleged by one party and either denied or admitted expressly or impliedly, by the other.
19. ' Explanation IV.--- Any matter which might and ought to have been made ground of defence or attack in such former suit, shall be deemed to have been a matter directly and substantially in issue in such suit.
20. ' Explanation V.--- Any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purposes of this section, be deemed to have been refused.
21. ' Explanation VI.--- Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the person so litigating.
22. In the case of Muhammad Anwar v. Mst. Nawab Bibi 1989 SCMR 836, Asif. Jah Siddiqui v.
23. Government of Sindh and others PLD 1983 SC 46, Abdul Majid v. Abdul Ghafoor Khan PLD 1982 SC 146 and Muhammad Chiragh-ud-Din Bhatti v. The Province of West Pakistan 1971 SCMR 447, it has been held that when a matter has been decided in writ jurisdiction, the same matter cannot be re- agitated by way of suit as the suit will be barred by the principles of resjudicata. Such principles are applicable to the facts and circumstances of this case. In fact and it is apparent from the plaint that the main purpose of the suit is to obtain implementation of the judgment passed in C.P. No,D- 738 of 1973 as all A rights and obligations of the parties stood adjudicated and determined by the said judgment and except its implementation nothing remained to be decided between the parties and even if anything did remain, it will not be possible to decide the same as it will be barred by the principles of constructive resjudicata. It may be noted that Constitution itself provides for various modes for obtaining implementation of judgment passed under Article 199 of the Constitution. In the case of Mehdi Hussan v. Zulfiqar Ali PLD 1960 Lah. 751 a Division Bench of Lahore High Court has held as follows:-- ' "When an order passed by this Court in the exercise of writ jurisdiction is not complied with two procedures are open to the person aggrieved. He may pray for further directions when there can be a bona fide dispute as to what is the effect of the order or he may apply for action under the Contempt of Courts Act. In the first case the Court may after determining the effect of its order give further directions for its enforcement. Such an order would not be an order in the exercise of criminal jurisdiction. In the second case the Court may either find the respondent guilty or it may discharge him on the ground that the respondent acted in the bona fide belief that he was complying with the order of Court though in fact he was disobeying it. Henceforth that person would know the effect of the order and if he still failed to comply with the order, the defence of bona fide would not be open to him in any application that may subsequently be filed under the Contempt of Courts Act. Learned counsel for the respondent also, argued that when an order of this Court passed in the exercise of writ jurisdiction is not obeyed, the only course open to the party aggrieved is to apply under the Contempt of Courts Act and that there can be no application for an implementation of the order passed in the exercise of writ jurisdiction. We do not agree. There may be many cases wherein a question may arise as to what is the import of an order or whether it applies to a certain set of circumstances. We do not see why the Court should not be entitled to interpret its own order and to give further directions. It would be like a Court executing a decree.
24. Questions do arise as to what is the meaning of a decree and just as those questions have to be decided by the Court executing the decree the question as to what is the meaning of a writ has to be decided by the Court issuing the writ. The order of Muhammad Yaqub Ali, J. Is an order just interpreting and enforcing an order already issued. We overrule the preliminary objection."
25. Besides it is well laid principle that the Court which passes judgment or order is also competent to implement/execute its own judgment and order. In this case a judgment is given by Division Bench of this Court in exercise of its writ jurisdiction after elaborately examining the facts and law that arose for adjudication and determination between the parties. The plaintiff although in substance wanting implementation of the judgment passed in C.P. No,D-738 of 1973 but in this suit has reopened all issues which stood adjudicated and determined or constituted adjudication and determination by the said judgment. Such course of action adopted by the plaintiff is not permissible in law but rather is barred by the specified application of principle of resjudicata.
26. Furthermore the said judgment is not only binding on me sitting as a Single Judge on the original side but at the same time no law has been shown to me on the basis of which I may even pass order of implementation of the judgment passed by a Division Bench of this Court in writ jurisdiction. The case of Mehdi Hassan (supra) perhaps gives proper guidelines that may be relevant in this case.
27. In view of the above discussion, I am of the considered opinion that the present suit is barred by the principles of resjudicata because of the existence of the judgment of a Division Bench of this Court in C.P. No,D-738 of 1973 in which all matters and questions raised in this suit have already been adjudicated and determined between the parties in this suit. Consequently the remaining issues need no determination and the suit is dismissed.