ATIQURREHMAN and others vs MUHAMMAD IBRAHIM and another

ORDER

1. ' NASIM HASAN SHAH, J.-- This petition for leave to appeal is directed against the judgment dated 4-7-1983 passed by a learned Single Judge of the Lahore High Court in Civil Revision No,678 of 1983.

2. ' The relevant facts are that the petitioners are vendees, against whom a suit for pre-emption was filed. When the suit was filed, two out of them, namely, Petitioners 1 & 2 herein, were minors. No one appeared to have contested the suit which was decreed ex parte on 11-10-1976. On 22-11-1976, the petitioners filed an application for setting aside the ex parte decree. However, the two minor defendants in the suit thereafter wanted to disassociate themselves from this application and another application was filed by them on 15-11-1977 withdrawing the application for setting aside the ex parte decree to the extent of their interest therein. Instead a writ petition was filed on their behalf before the Lahore High Court, Lahore (W.P. No, 2990 of 1976) to challenge the decree on the ground that the said petitioners being minors, having been sued without the appointment of any guardian ad litem to defend them, the decree was a nullity. The writ petition was accepted by a learned Single Judge of the Lahore High Court by his order dated 1-6-1977, who held that a minor not duly represented should be deemed never to have been a party to the proceedings and, therefore, declared the ex parte decree passed against the minor Petitioners to be without lawful authority and of no legal effect.

3. ' The respondents, after unsuccessfully challenging the above order by an Intra-Court Appeal, applied to the learned trial Court for revival of the suit by impleading the minor defendants through guardian ad litem. The trial Court, in fact, had already revived the suit by its order, dated 22-3-1979 and written statement was also filed on behalf of the minor defendants, and issues were framed on 20-9-1979. Thereafter, the defendants filed an application against the revival of the suit and also for amendment of the written statement. These applications were dismissed on 21-6-1980 by a detailed order passed by the learned Senior Civil Judge, Sheikhupura who held that the effect of the order of the High Court declaring that the decree passed against the minors without their being properly represented was a nullity could not have the effect of wiping out the proceedings taken earlier and the minors would be relegated to the position which they would occupy on the date when the illegality occurred and Court could proceed to decide the suit with a proper guardian of the minors.

4. ' Dissatisfied with this order passed by the learned Senior Civil Judge, the defendants filed a writ petition in the Lahore High Court to challenge it, which was dismissed on merits by a learned Single Judge (Abaidullah Khan, J) vide his order, dated 6-12-1981 who upheld the view of the learned Senior Civil Judge that the declaration of the ex parte decreee to be a nullity did not operate as wiping out of the proceedings taken earlier in the suit. The petitioners filed Intra-Court Appeal No,412 of 1981 to challenge the order of the learned Single Judge, which was dismissed in limine as being without merit. They then moved this Court seeking leave to appeal against these orders (C.P.S.L.A. No,1193 of 1981). The said petition was dismissed by this Court vide its order, dated 14-3- 1983 on the ground that the writ petition filed by the petitioners (W.P. No,8124 of 1980) was not competent as an adequate alternative remedy was available to them under the Code of Civil Procedure and the Intra-Court Appeal arising from an incompetent writ petition was itself incompetent. Thus, the learned Judges agreed with the High Court though for the above reasons, that both the writ petition and the Intra-Court Appeal deserved to be dismissed.

5. ' Undeterred, the petitioners then filed a revision petition to challenge the order of the learned trial Court dated 21-6-1980 which was earlier challenged by means of a writ petition. The High Court dismissed the revision petition in limine by its order dated 4-7-1983 on the ground that the impugned order of the learned Senior Civil Judge dated 21-6-1980 had already been upheld up to the Supreme Court and it operated as res judicata. This petition for leave to appeal is directed against the aforesaid order of the High Court The learned counsel for the petitioners, in support of this petition for leave to appeal has argued that the order, dated 14-3-1983 passed by this Court had left scope for the petitioners to challenge the order of the trial Court, dated 21-6-1980 through a revision petition notwithstanding the order of dismissal of the writ petition by the High Court directed against the said order which was not interfered with by this Court. In this connection, he relied upon the concluding part of this Court's order, wherein it was observed:- "We, however, agree, though for reasons of or own as expressed above, that both the writ petition and the Intra-Court Appeal had been rightly dismissed."

6. ' It is further submitted that as proper remedy for challenging the order, dated 21-6-1980 was available under the Civil Procedure Code, therefore, the petitioners could file a revision under section 115 of the C.P.C., despite the earlier dismissal of their writ petition.

7. ' We regret we cannot agree. The High Court, in its order, dated 6-12-1981, dismissed the Writ Petition No, 8124 of 1980 on the merits, holding that the order of the trial Court, dated 21-6-1980 to the effect that the suit could revive was a legal and valid order. The above order was upheld by the Intra- Court Appeal Bench and also by this Court, though for the reasons different from those which found favour with the learned Judges of the High Court. Hence another Judge of the High Court could not re-open the same matter, now brought before him through a revision petition, which had been fully dealt with and disposed of when it came before the Court earlier under its writ jurisdiction. The learned Judge in the High Court was plainly right that the attempt being made to re-open the same matter all over again would be barred by the general principles of res judicata.

8. ' The upshot is that this petition must fail and is dismissed hereby.