SAIF TEXTILE MILLS LTD. GADOON INDUSTRIAL ESTATE Versus MINISTRY OF NATIONAL FOOD SECURITY AND RESEARCH, through Secretary Islamabad
QAZI JAWAD EHSANULLAH, J.--- This single judgment shall decide the instant as well as connected Writ Petition No. 2838-P/2020 as common questions of law and facts are involved in both these cases.
2. In both these writ petitions, the petitioners have questioned the validity of Cotton Cess Rules, 2012 issued vide SRO No.307(I)/2012 dated 29.03.2012 (the impugned Rules) framed under the provisions of Cotton Cess Act, 1923 (the Act) . The main ground of challenge canvassed at the bar against these Rules by the petitioners is that the impugned Rules have not been approved and passed by the Federal Government (Prime Minister and the Cabinet), which omission runs in violations of the mandate of section 15(1) of the Act. For the sake of further clarity, the exact prior clause of the subject writ petition is reproduced below:-
"It is therefore very humbly prayed that on acceptance of this Writ Petition, this Honorable Court may very magnanimously declare as under that:
I. Cotton Cess Rules, 2012 published vide SRO No. 307(I)/2012 Dated 29.03.2012 are against constitution and have been laid down in violation of judgement in Mustafa Impex case, therefore are ultra vires and liable to be struck down.
II. Impugned levy of Cess and its demand and collection, is patently illegal unlawful, without lawful authority, discriminatory as per PLD 2016 Pesh. 84 and thus of no legal effect.
III. Levy of Cess without providing any services for which it was/is levied is highly unjustified and unlawful to be collected, therefore, liable to be invalidated/reassessed re-evaluated.
IV. PCCC having badly failed to fulfil the purpose for which it was formed, therefore liable to be abolished/reformed/restructured.
V. Costs throughout."
3. At the very outset, the learned Additional Attorney General assisted by Mr. Ishtiaq Ahmad Advocate representing the official Respondent No. 3 have raised a preliminary objection to the effect that these writ petitions were hit by the principle of constructive res judicata as envisaged in Section 11 of the Civil Procedure Code. They have submitted that prior to the filing of the present writ petitions, the impugned Rules had earlier been challenged by the petitioners through Writ Petition No.1603-P/2015. It was contended that the said writ petition was decided on 13.05.2015, with the direction that the petitioners should first exhaust departmental remedies before approaching the High Court. Subsequently, the petitioners had filed departmental appeals, but their grievance was not redressed. As a result, they filed another writ petition (W.P. No.1623-P/2016) in the Peshawar High Court whereby they had questioned the very levy of cotton cess on the ground that same could not have been charged upon the imported raw cotton. This last-mentioned writ petition was decided on 01.03.2017, wherein the demand of Cotton Cess issued under the impugned Rules published vide SRO No. 307(I)/2012 dated 29.03.2012 was struck down, and the writ petition was allowed by a Division Bench of this Court. Thereafter, the judgment of the High Court was challenged by the Government of Pakistan before the Supreme Court of Pakistan through a Civil Petition for Leave to Appeal. The said Petition for Leave to Appeal was allowed and was converted into an appeal, which was heard and decided by the apex court on 12.12.2019 whereby the judgment rendered by this Court while deciding W.P. No. 1623/2016 was set aside, and the demand raised by the official respondents was held to be perfectly legal and in accordance with law. In this particular backdrop, the learned counsel for the respondents have vehemently argued that in the previous round of litigation, the matter in issue was conclusively decided on merits and, therefore, it cannot be reopened under the garb of a fresh challenge raised against the impugned Rules.
4. While responding to the preliminary objection so raised, the learned counsel for the petitioners has argued that though in the previous round of litigation the question of validity of the impugned Rules on the touchstone of Mustafa Impex case 1 was one of the grounds of challenge to the demand of cess on cotton imported from outside Pakistan but that was not the prayer in the former writ petition. He added that this particular ground as agitated in the present writ petitions was not conclusively decided by this court while allowing the earlier writ petition and same was also nowhere dealt with by the apex court in its judgment while deciding Civil Appeal No. 370-P/2018 (on 10.12.2019). Learned counsel for the petitioners has mainly relied upon the judgment of the apex court in the case of Abdul Ghafoor v. Chief Settlement Commissioner and another 1985 SCMR 464 and has stated that previous writ petition was not decided on merits in the sense that the ground of validity of the impugned Rules, for not having been approved by the Federal Government, was not the subject matter of decision earlier. Based on that, he has concluded that writ petitions in hand are not hit by the principle of res judicata and, therefore, are perfectly maintainable and should be decided on merits.
5. Heard. Before proceeding on to deal with the core issue of res judicata , it may be observed at the very outset that superior courts have consistently held that this particular principle emanating from Section 11 of the Civil Procedure Code, 1908 is also applicable to writ petitions because these proceedings are also civil in nature. 2
6. Having understood that principle of res judicata would be applicable to a writ petition, the next step for examining the veracity of preliminary objection raised by respondents side would be to first see the statutory provisions behind the said principle which are embodied in section 11, C.P.C. For ease of reference said provision of law is reproduce herein below;
"11. Res Judicata.- No Court shall try 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.
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.
Explanation II. For the purposes of this 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.
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.
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.
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.
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 persons so litigating.
A bare reading of the afore-quoted section of law makes it clear that in order to apply the principle of res judicata and create a bar to a subsequent suit, or for that matter a writ petition, following ingredient must co-exist namely; i) The matter directly and substantially in issue in subsequent suit or proceedings must be the same matter which was directly and substantially an issue in the former case; and ii) The former suit must have been between the same parties or between the parties under whom they or any of them claim; and iii) The parties must have litigated under the same title in the former suit; and iv) The court which decided the earlier suit must be competent to try the subsequent suit; and v) The matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by the court in the first suit.
By applying the aforesaid criteria upon the facts and circumstances of the case we have noted that; Firstly, the matter in issue in the present writ petition is the impugned demand of Cotton Cess which was subject matter of the previous round of litigation. No doubt that the sole ground of challenge agitated in the present proceedings and now constituting the prayer before us was one of the different grounds in the previous writ petition. As a matter of record, the challenge pleaded in present writ petitions seeking to question the impugned rules on the touchstone of Mustafa Impex case 3 was very vividly raised in the Ground of previous writ petitions, however, while deciding writ petition same was not taken up as at that point in time the petitioners' felt contended in agitating their grievance on the sole ground that the demand of Cotton Cess should not have been made against cotton imported from outside Pakistan. Once that ground did not prevail finally before the apex court, the petitioners have now turned around and have decided to re-agitate the issue but at this time they have opted to question the validity of the impugned Rules by stating that same have not been passed and approved by the Federal Govt. as interpreted by the apex court in the Mustafa Impex supra . So, it can be said with conviction that first ingredient to attract the principle of res judicata is very much in existence in the present case as in both the previous as well as present writ petitions the matter in issue is one and the same but grounds of challenge are rather encapsulated; Secondly, parties to both the previous and present writ petition are also the same and / or those claiming through the said parties; Thirdly, the title or basis of challenge in both the proceedings vesting in the parties to the lis is also not different; Fourthly, it is nowhere argued that the High Court who had decided the previous writ petition is incompetent to decide the present writ petition, so the fourth condition as specified above is also very much there; Finally, the matter in issue i.e. impugned demand of Cotton Cess was earlier heard by the High Court and the Supreme Court of Pakistan and it had been finally adjudicated upon.
7. We have also noted that in essence the petitioners are questioning the validity of demand of Cotton Cess but on different - grounds. More interestingly, the ground of challenge now pressed before us in the present petition was earlier taken in the memorandum of former writ petition but the case was decided on the sole point of validity of demand of Cotton Cess raised against raw cotton imported from abroad. Even before the apex court the ground now agitated before us under the guise and garb of an amended prayer clause was not at all raised and pressed. We are informed that a review petition was also filed against the final verdict of the apex court and that was dismissed by the Supreme Court of Pakistan but said Review Petition or its order has been held back from us and has not been appended in the file of instant writ petition. At this juncture we may also refer to Explanation IV of section 11, C.P.C. which unequivocally provides that 'any matter which might and ought to have been made ground of defence of attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit' . This particular provision, as has been interpreted consistently by the superior court, envisions that in every proceedings it is the rule of law that whole of the claim which a party is entitled to make should be made and where a party omits to sue in respect of portion of the claim it cannot afterwards sue for the portion so omitted. The above explanation is based upon the principle that no one should be vexed twice for the same cause. It is incumbent on the parties litigating to raise all the pleas as ground of attack or defence available at the earliest. Taking piecemeal objection is not permissible. Omission to raise such ground of attack or defence in the former proceedings on the face of it is hit by the principle embodied in section 11 and more particularly Explanation ibid and that is what is commonly called the principle of constructive res judicata 4 .
8. For proper understanding of the matter, we may also refer to the dicta laid down by the apex court in Mirza Muhammad Yaqub supra 5 wherein it has been authoritatively ruled that a petitioner was not entitled to take different pleas at different times so as to file more than one writ petition on the same facts. For that, the proper course would be to file a petition for review if such a petition was otherwise maintainable. We have also gone through the case-law relied upon by the learned counsel for the petitioners and found that the law laid down by the apex court in Abdul Ghafoor's case supra 6 is distinguishable from the facts and circumstances of the case. In that particular case, the previous writ petition filed by the petitioner was dismissed in limine on two grounds i.e. firstly that petitioner had declined to take the shops under the Settlement Scheme No.1 and secondly that he had not impleaded Chief Settlement Commissioner who was the main party and who had passed orders of auction in that case. So, petitioner in that case had filed yet another writ petition subsequently by impleading Chief Settlement Commissioner and once his writ petition was dismissed on the principle of res judicata , the apex court has held that the previous writ petition was not decided on merits, rather it was decided on the preliminary point of having not impleaded the necessary party and so subsequent writ petition was held to have not hit by the principle of res judicata . As against that situation, the case in hand is not the one where previous litigation was disposed of on a preliminary point. The same was rather decided on merits and so the judgment referred to by the petitioners' side is of no help to its case. At this juncture we may also refer to another judgment of the apex court on the subject rendered in the case of SME Bank Ltd. and others v. Izhar ul Haq 7 wherein it was ruled as under;
"8. What we understand is that pursuant to the penalty impost upon the respondent, he filed Writ Petition No. 2702 of 2006 in which the only relief granted to him, out of the prayers made by him, was that of VSS benefit be paid to him and no other prayer, contained in the said writ petition, was allowed by the High Court. The respondent neither sought review of the said judgment nor challenged the same before this Court rather the judgment itself was accepted by him and the payment made to him under the such judgment was received by him `under protest'. Receiving benefit `under protest' was of no consequence for that the respondent admits that such payment settled his dues of VSS but the remaining dues as was prayed by him in the Writ Petition No. 2202 of 2006, were not granted to him. If that be the case, the respondent ought to have taken measures for granting him other prayers containing in the earlier writ petition either by seeking review or by filing proceedings before this Court, which he did not do. The VSS benefits having been paid to him, which were only relief allowed by the High Court vide its judgment dated 28.10.2011 and same having been accepted by the respondent, he cannot claim that full relief has not been granted to him by the appellant. Further, the principle of res judicata with all its force will apply to the case of the respondent for that his second writ petition against the appellant will not be maintainable for granting him the relief, which was not allowed to him by the High Court earlier for that the law assumes that such relief stood specifically denied to him by the High Court while passing judgment dated 28.10.2011..."
[Emphasis supplied]
9. As a sequel to above, we have no doubt in our mind while we conclude and hold that the present writ petitions are not only hit by the principle of constructive res judicate but are also covered by the barring clauses of Order II, Rule 2, C.P.C. which are in fact a reiteration of the principles embodied in Explanation IV of Section 11 ibid and provide that if a ground of challenge or prayer was available to a litigant and the same was not raised or agitated in the previous round of litigation, the same cannot be made basis of fresh proceedings when the former case was decided on merits. Resultantly, the writ petitions in hand fail and are accordingly dismissed with no order as to cost.
M.H./199/P Petitions dismissed.
2 Mirza Muhammad Yaqub v. Chief Settlement Commissioner and another PLD 1965 SC 254; Koh-i-Noor Sugar Mills Ltd. v. Pakistan and 2 others' reported in 1989 SCMR 2044 and Wajid Ali and 2 others v. Board of Revenue Punjab reported in PLD 1982 Lahore 716
4 'Allah Dad v. Mehmood Shah' reported in 1991 SCMR 418
5 PLD 1965 SC 254