Mst. HAMIDA vs MUHAMMAD ZAMAN And Another
The petitioner sought leave to appeal against the judgment of the High Court, arising out of a civil suit challenging an order of the Notified Officer dated 18-12-1986 regarding the transfer of a disputed plot. The property had been transferred to respondent No. 1, which determination was upheld by the High Court in an earlier constitutional petition. The petitioner subsequently filed a civil suit seeking identical relief, which the Civil Court dismissed on the preliminary issue of jurisdiction and the bar of res judicata. The Supreme Court of Pakistan held that the rights of the parties concerning the disputed plot had been conclusively decided on merits and law by the High Court in the prior constitutional proceedings. A civil court lacks jurisdiction to sit in appeal over or nullify an order passed by the High Court. Consequently, the petitioner could not re-agitate the same matter via a civil suit. The petition was found devoid of merit and leave to appeal was refused.
- Can a party challenge an order of a Notified Officer in a civil suit when that exact order has already been upheld by the High Court in constitutional proceedings?
- Does a Civil Court have jurisdiction to sit in judgment over an order passed on merits and law by the High Court?
- Can the principle of res judicata bar a civil suit without recording evidence where the relief claimed was previously denied by the High Court on the same facts?
ORDER
1. ABDUL QADEER CHAUDHRY, J.---The petitioner seeks leave to appeal against the judgment dated 19-12-1989 of the High Court.
2. The facts, in brief, are that the petitioner purchased the plot in dispute from the Settlement Department in auction on 27-7-1970. The auction was subsequently confirmed in her name on 12- 8-1970 by the Additional Settlement Commissioner. The respondent No.1 filed an appeal against the aforesaid order dated 27-7-1970 of the Settlement Department which was dismissed. The respondent No.1 then filed a revision petition against the order of the Additional Settlement Commissioner. This petition was disposed of with certain observations by the Additional Settlement Commissioner. Both the parties filed Constitution Petitions before the High Court. The High Court disposed of both the petitions by a single order dated 22-12-1979 and the case was remanded to the Notified Officer for making fresh decision. The Notified Officer framed as many as nine issues. It was observed by the Notified Officer vide order dated 18-12-1986 that the petitioner had no right to dispute the title of Muhammad Zaman who was in possession of the plot in dispute before the target date. As such, Muhammad Zaman was entitled to the transfer of the plot. A Constitution petition was filed against the aforesaid order which was dismissed by the High Court.
2. The petitioner brought a civil suit challenging the order of the Notified Officer dated 18-12-1986. The learned Civil' Judge framed six issues and issue No.1 was "whether the Civil Court had no jurisdiction to try the suit". This issue was decided against the petitioner. It was held that the relief sought for in this suit was exactly the'relief claimed by the plaintiff before the High Court which was denied to her vide judgment dated 6-4-1987.
3. Learned counsel for the petitioner submitted that the plea of res judicata could only be decided after proper inquiry but no opportunity was afforded to the petitioner to produce evidence and that the suit filed by the petitioner was not barred by the principle of res judicata.
4. The admitted position is that the dispute relating to the plot in question was agitated by the parties in the earlier round of litigation. The matter went up to the High Court. The High Court decided the matter in favour of the respondent No.1. The right of the petitioner was not accepted. The question which was raised by the petitioner in the civil suit had already been, decided in the appropriate proceedings. It would be unfair on the part of the petitioner to challenge the order of the Notified Officer in a civil suit in order to nullify the order of the High Court which was passed against her. It was observed by the High Court in the earlier order that the plot in dispute was admittedly in possession of the respondent No.1. He had submitted the form for its transfer on 26-11-1959. The plot in dispute could not therefore have been put to auction without disposing of the transfer form 'and in any event the auction in favour of the petitioner having been confirmed during the pendency of the respondents appeal and while the stay order was operative, was of no legal effect. The High Court in its order dated 6-4-1987 had finally disposed of the matter on merits as well as on law and the Civil Court had no jurisdiction to sit in appeal over the said order. This is also against all propriety to challenge the order of the High Court in such a way. The learned counsel has referred to Hamid Hussain v. Government of West Pakistan (1974 SCMR 356). The precedent case cited by the learned counsel is distinguishable and does not apply to the facts of the present case.
5. This petition has no force. The same is dismissed and leave to appeal is refused.