MUHAMMAD SHAFI AND ANOTHER vs MUHAMMAD BAKHSH AND ANOTHER

ORDER

NASIM HASSAN SHAH, J.-- B y our short order passed on 2-124969, it was ordered that the above two appeals shall stand dismissed, for reasons to be given separately. We now proceed to give reasons for the said conclusion.

2. The question raised before us and argued with considerable emphasis on it by Mr. A. S. Salam, on behalf of the appellants, is that the learned Single Judge has erred in holding that the general principles of res judicata are applicable to cases where the orders which have been the subject- matter of attack in this Court by means of petitions under Article 98 of the late Constitution are again impugned, through civil suits before the ordinary civil Courts. The facts which form the background of this question are that certain portions of the allotment made earlier in favour of the appellants were cancelled by the Settlement Authorities on the ground that they were in excess of their entitlements. The order made in the case of Miran Bakhsh (appellant in L. P. A. No, 379 of 1969) being made on 2-2-66 while that in the case of Muhammad Shafi (appellant in L. P.A. No,380 of 1969) was made on 24-11-65, they were questioned by separate petitions under Article 98 of the Constitution and dismissed by a learned Single Judge, in limine and the Letters Patent Appeals there against also failed. Thereafter the appellants brought separate suits before the civil Courts to challenge the said orders and the Civil Judge, Okara, after holding that he had the jurisdiction to hear the suits granted decrees declaring that the orders of the Settlement Authorities were a nullity in law, that the appellants had by operation of law become owners of the land and that the orders of cancellation of the excess allotments are without jurisdiction and ineffective against their rights.

On an appeal by the respondents the Additional District Judge held that the order of cancellation of the excess allotment was covered by the provisions of sections 10 and 11 of the Displaced Persons (Land Settlement) Act, that the impugned orders having been passed by the Settlement. Authorities within the ambit of the powers conferred on them were orders passed under the Act and as such the civil Courts had no jurisdiction to criticise those orders in view of the provisions of section 25 of the Act. He further held that since the High Court had upheld the orders of cancellation of allotment, while dismissing the writ petitions filed by the appellants and had found the impugned orders to be legal, the said determination was binding on all subordinate Courts. He added: "the decision of the High Court in the writ petition holding the impugned orders to be illegal is nothing but a decision on law point about the validity of these orders and as such binding on subordinate Courts. Such being the legal position, the learned trial Judge could not have held the orders to be illegal and ultra vires". On second appeal the learned Single Judge has observed that it was conceded by learned counsel for the appellant that the questions of absence of notice and invalidity of the impugned orders on that ground were not raised in the writ petitions nor in the Letters Patent Appeals. He has further observed that it was admitted before him that the appellants were not entitled to the land ordered to be resumed from them and concluded that in these circumstances, on the general principles of res judicata, although the provisions of section 11 of the C. P. C. may not be strictly applicable, the appellants could not attack the impugned orders on grounds which were available to them before this Court and were not taken at the relevant time. It was further held that for this reason the orders of cancellation by the Settlement Authorities were protected by the provisions of section 25 of the Act.

3. Learned counsel for the appellants has contended that the jurisdiction of this Court under Article 98 of the Constitution is not exercised in derogation of the general jurisdiction exercised by the ordinary civil Courts but is in addition to it and supplements it. Reference is invited to section 9 of the Code of Civil Procedure which authorises the ordinary civil Courts to try all suits of civil nature excepting suits of which cognizance is either expressly or impliedly barred. Attention is also drawn to a decision of a Single Judge from the Manipur Judicial Commissioner's Court wherein it is observed that if the High Court refused to exercise its discretion to issue a direction in the exercise of its extraordinary jurisdiction under Article 226 of the Indian Constitution, the dismissal of the application will not amount to a decree in a suit within the meaning of section 1, C. P. C. and such a decision cannot be said to have the effect of res judicata in a subsequent suit between the parties.

Various examples have been given of cases where the High Court in the exercise of its extraordinary jurisdiction under Article 98 may dismiss constitutional petitions but such orders cannot be regarded as deciding the case and thereby constituting res judicata. It is said that if a petition is dismissed on the ground that disputed questions of fact arise or that the Court is not inclined to exercise discretion in favour of the petitioner on account of laches or some other conduct disentitling him to discretionary relief the result would be that a civil suit on the same cause of action would be held to be barred under the principles of res judicata. It is, therefore, suggested that the two jurisdictions being of a different order and being attracted in different circumstances, the principles of res judicata cannot be held applicable to bar suits which are otherwise competent before civil Courts, merely because the party adopted the course of approaching this Court in the first instance.

4. In our view the question was posed by the learned counsel does not arise in the circumstances of the present case. In the first instance it will be noticed that the appellants had stated in their petitions under Article 98 that there was no alternative remedy available against the impugned orders which shows that they admitted that the jurisdiction of the civil Courts was barred under the provisions of section 25 of the Displaced Persons (Land Settlement) Act. In these circumstances it hardly lies in their mouth to contend that civil Courts had the jurisdiction to decide the matter and that the suit filed by them was not within the mischief of the bar created by section 25 of the Act. In the -second place, it was admitted before the learned Single Judge -during the course of the proceedings under Article 98 of the Constitution, that the area cancelled from their allotments was In fact excess area. It was, inter alia, in view of this admission that the learned Judge concluded that the order of the Settlement Authorities was not open to any exception; therefore, the finding of the learned Additional District Judge that under the portions of Article 100 of the 1962-Constitution no subordinate Court could come to a contrary decision on the question decided by this Court, namely, that the impugned orders passed by the Settlement Authorities were not open to any legal infirmity, is not open to any objection. From this point of view we consider that where a decision has been given by this Court, on the merits of a matter, even though the case was decided in limine it should, subject to appeal etc., be treated as final and not open to be re-agitated merely because certain pleas which could have been taken were not taken. Since the decision was on the merits of the case, failure to raise a particular contention cannot be pleaded as a sufficient justification for re-agitating the same matter before the civil Court. In the proceedings under Article 98 this Court had not left the case undecided on merits but had consciously, for reasons stated in its order, upheld the validity of the orders passed by the Settlement Authorities. Consequently we consider that the subordinate Courts were bound by the decision made by this Court and hence the Additional District Judge was justified in accepting appeal on that short ground. We are, therefore, in agreement with the learned Single Judge that the second appeals were liable to dismissal.