PLJ 2004
Present:
dost muhammad khan, J.
ABDUL RASHEED-Petitioner
versus
LATEEF-UR-REHMAN and another-Respondents Civil Revision No. 681
of 2004, decided on 25.6.2004. (i) Administration of
Justice--
—Constitution of
judgment
of Superior Courts-Held: Foremost obligation of sub-ordinate
Courts
to show greatest respect to judgments of Superior Courts-They
are
constitutionally bound to comply with the same and to give true and
full
effects to them-In case of non-compliance or violation of decision of
Hon'ble
Supreme Court the judicial officer of such Court would be
exposed
to grave consequences. [P. 303] A
(ii) Administration of Justice-
—Constitution of
(iii)
Civil Procedure Code, 1908 (V of 1908)--
—Ss. 144 &
115-Frivolous litigation-Executing Court issued warrant ol possession on the application of
petitioner under Section 144 of C.P.C.-Order was set aside by
Appellate Court directing retrial assailed-Held: A.D.J. had acted carelessly in dispensation of
justice and conveniently ignoring that petitioner had been vexed not thrice and so
remand ordei was unessential and unwanted-High Court set aside impugned ordei while
restoring that of executing Court-Court further directed the restoration of
possession to petitioner forthwith. [Pp. 304 & 305] E & K
(iv) Civil Procedure Code, 1908 (V
of 1908)--
—S. 11-Constructive res jwd/cata-Applicability & Extent-Held :
Principle
and
doctrine of constructive res judicata was squarely and firmly
applicable
in instant case because respondents had made a crude attemp
to
re-open a case/matter which was finally and conclusively decided-!
amounted to wanton act of infusing a life into a dead horse, therefore
objection petition filed by
respondents without any fear of rebuttal coul<
be
termed to be frivolous and malicious one. [P. 304] 1
(v) Civil Procedure Code, 1908 (V of
1908)--
—S. 11-Doctrine
of res judicata—Held: Doctrine of resjudicata is deepl;
entrenched
in system and provides relief and respite to opposite part
from
being vexed twice on same issue. [P. 304] (
(vi) Frivolous Litigation-
—Courts are duty bound to kill frivolous lis in its very inception and
shall
not be allowed even to take
a single breath while doing so, otherwise all
efforts
made day and night by the superior Courts in this behalf would
receive
grave set back-Further held : that, in such situation public at
large
would also lose its confidence in the judicial system if matters,
closed and final are reopened
through the dirty tactics and tricks of art of
technicalities. [P. 304] C & D
1999 SCMR 336 & PLD 1963 SC 382, ref.
Qazi
Jawad Ehsanullah, Advocate
for Petitioner. Mr. Abdul Satiar Khan, Advocate for Respondents. Date of hearing: 25.6.2004.
judgment
Impugned herein
primarily is the judgment of the learned Additional District Judge-IV, Peshawar dated
27.5.2004 who accepted Civil Appeal No. 20/13, set aside the judgment/order dated
19.5.2004 of the learned
Senior Civil Judge, Peshawar. The latter has dismissed the objection petition of the
respondents-objector in the second round of execution proceedings held under the provision of Section 144
C.P.C. The petitioner is also aggrieved from the order of the learned Senior Civil
Judge/executing Court dated 29.5.2004 wherein after remand, the case file was
sent to the learned District Judge,
2. Brief but relevant facts in the
backdrop may be stated below:--
"That a suit for recovery of possession of the
shop in question was instituted by Taj Muhammad, Respondent No. 2 herein,
against the petitioner and
another which was decreed ex-parte on 19.1.1997 by the trial Court.
The decree was put to execution and possession of the shop was thus delivered on
20.5.1997 to the Respondent No. 2 under the warrant of possession issued by the Court".
On the
application of the petitioner and one Imdad Hussain seeking the reversal of the
decree, proceedings were re-started and it was on 23.12.1997 that the decree
holder and the petitioner appeared before the Court, submitted compromise
deed and prayed for setting aside the decree passed ex-parte. The statement of Taj
Muhammad was recorded on 6.1.1998 to the above effect and his suit was, therefore,
dismissed. In his said statement Taj Muhammad gave firm assurance to the Court
that vacant possession of the shop/property he would hand over to the present petitioner. Later on
Taj Muhammad did not abide by his undertaking and made absolute retrace.
Constrained by the circumstances. Abdur Rashid petitioner thus moved an
application u/S. 144 C.P.C. for restitution of the shop
3. The said application was then resisted by Taj Muhammad vide
written reply dated 6.2.1999 on the plea that he had
already inducted Lateef-
ur-Rehman,
Respondent No. 1 herein, as his tenant in the shop, who was
not ready to vacate it. The then Civil Judge did not
accept the said plea and
issued warrant of possession which was yet to take effect
when on 12.2.1998
Lateef-ur-Rehman, Respondent No. 1 was set up in a
clandestine manner by
Taj Muhammad to thwart the process of execution who then
filed objection
petition on 12.2.1998 with a prayer to suspend the
execution proceedings. He
further claimed ownership on the strength of a registered
deed dated
16.7.1998 executed by Taj Muhammad in his favour. It was
Taj Muhammad
himself who expressly denied the execution of any such
deed rather termed
it as
forged and fraudulent one. The present petitioner also questioned its
legality.
4. During the pendency of proceedings, Respondent No. 1
Lateef-ur-
Rehman
also challenged the issuance of warrant of possession through an
appeal and the district appeal Court vide order
dated 2.11.1998 set aside the
order of the executing Court, the warrant of possession, thus issued was
recalled. The executing Court was directed to decide
afresh the application of
the present petitioner filed u/S. 144 C.P.C. alongwith the
objection petition.
At this stage Respondent No. 1 applied for his impleadment
as a necessary
party in the petition filed u/S. 144 C.P.C. After hearing
the parties, the
learned Civil Judge through order dated 2.6.2000 accepted
the petition u/S.
144 C.P.C. for restitution and dismissed the objection
petition.
The
above order was once again impugned before the district appeal Court and the then
learned Additional District Judge, Peshawar through judgment
dated 17.7.2000 once again set aside the order of restitution and this
time also dismissed the petition filed u/S. 144 C.P.C. Feeling mortally aggrieved
from the said order, revision Petition No. 535 was filed in this Court
and vide judgment dated 19.3.2003 the said order of the district appeal Court
dated 7.7.2000 was set aside and the petition u/S. 144 C.P.C. was accepted.
It was further observed in the said order that the petitioner would retain
the possession till the date and time when the competent Court decide the fate
of the cases pending trial before different Courts between the parties
regarding the title of the shop.
5. The judgment of this Court was challenged through
C.P.L.A. No.
647 of 2003 before the Hon'ble Supreme Court which was dismissed on
5.4.2004
and their lordship of the apex Court were pleased in not granting
leave to Lateef-ur-Rehman, who is now Respondent No. 1.
The judgment of
the apex Court is more elaborate and encompasses all the pleas taken by the
parties
therein and has conclusively determined the matter-in-controversy
once for all thus on point of law the matter attained
absolute finality.
6. When the proceedings
for restitution were restored
and
recommenced,
this time once again Lateef-ur-Rehman Respondent No. 1
filed an objection petition
under Orders 47 and 21 Rule 3 C.P.C. reiterating the same plea that he was owner-in-possession and
being bonafide purchaser of the shop and all the previous orders including
the one passed by the Hon'ble Supreme Court dated 5.4.2004 were void, ab
initio and ineffective upon his rights. The same was albeit entertained by
the executing Court but when the present petitioner through an application
dated 17.5.2004 brought all the material facts to the notice of the executing
Court, the matter was accelerated
as on 15.5.2004 the Presiding Officer was on leave and through Reader Note case
was posted to 26.5.2004. The matter was therefore, taken up on 19.5.2004 and counsel for the
parties were heard whereafter through a detail order/judgment the
learned executing Court/Senior Civil Judge, Mrs. Munira Abbasi dismissed the objection petition,
vacated the status quo order and imposed a cost of Rs. 25,000/- on Respondent No.
1.
7. The said respondent,
did not abandon his ceaseless chase, thus
filed
an appeal before the district appeal Court. The learned Additional
District
Judge-IV, Peshawar Mr. Shahid Khan through the impugned order
dated
27.5.2004 set aside the order/judgment of the executing Court and
passed
the following order:--
12. "To wind
up, it is observed that as new facts have been introduced, therefore, the
learned lower Court should ask for the written reply of the respondent and
after hearing of the learned
counsel for the parties, if the learned executing Court is of the mind that the
materials on the face of the record are good enough for the disposal of the
matter-in-issue and recording of evidence is not inevitable should dispose of the
matter on its own merits, otherwise it may dispose of the matter after recording pro and contra evidence of the
parties."
In this way, having
been dragged into a third round, the petitioner has impugned the order of the
district appeal Court through the instant petition. Initially a writ petition was filed which
was converted into revision petition, arguments heard and record perused.
8. It was vehemently
contended for the petitioner that in the earlier
round
when the matter having been conclusively decided by the Hon'ble
Supreme
Court, nothing was left to be debated upon again then re-opening
of the
matter on the grounds mentioned in the impugned order is an act
void,
ab initio, without lawful authority and without jurisdiction. It was
urged
with considerable force that principle of constructive res judicaia is
firmly
attracted to the present matter because all the points re-agitated were
earlier taken, discussed
and finally determined.
To the contrary,
Mr. Abdul Sattar Khan, learned counsel for the respondents argued that for
proper appreciation of the matter-in-controversy, the back history of the case is to be
kept in mind and because the
petitioner has subsequently executed a gift deed in favour of his brother,
therefore, he is left with no
interest or title in the shop and it being a new development thus the learned
district appeal Court was justified in setting aside the judgment of the
trial Court which was passed in haste and without recording evidence of the parties. He also argued
that single revision petition is not competent against two orders, the one passed
by the district appeal Court and the other one passed by the learned Senior
Civil Judge who after remand sent the case to the District Judge for opinion and
guidance. Reliance was also
placed on Sultan Ahmed Sharif vs.
9. The combined and careful study of the
above facts lead one to the conclusion that a still born matter has been reopened on
the basis of sheer technicality.
The learned Additional District Judge has not taken a little care to read the
elaborate judgment of the Hon'ble Supreme Court maintaining the order judgment
of this Court wherein all the points-in-controversy discussed therein were attended
to and were firmly and finally determined once for all. To the contrary the
district appeal Court instead of showing respect and obedience to the final
judgment of the Hon'ble Supreme Court has given more preference to technicality because in his view reply from
the present
petitioner, who was respondent in the objection petition, was essentially required and in his view the
recording of evidence was desirable, conveniently ignoring the established facts on
record, all these issues were previously agitated/taken up and were fairly
addressed to and thereafter were
conclusively decided. What more was left to be reconsidered he could not attend to,
therefore, one is shocked to see the way the learned district appeal Court has acted.
While going through
the objection petition filed for the third time, the old plea has been taken
again which did receive approval from the apex Court. Both the judgments
particularly that of the Hon'ble Supreme Court were available on the case
file wherein all material facts have been exhaustively and elaborately dealt, only a blind
could refuse to perceive.
It is the foremost
obligations of subordinate Courts to show greatest respect to the judgments of the
superior Courts. They, under the Constitutional command are bound to comply with the same and to give true
and
full effects to the judgments of the Hon'ble Supreme Court and- this Court as well. The
plaint language of Articles 189 and 190 of the Constitution do not require
any debate nor it is susceptible to any different interpretations. None-compliance therewith or
violation of decision of the Hon'ble Supreme Court would expose Judicial Officer
of the subordinate Court to grave consequences. It is the solemn duty of the
subordinate Courts to faithfully comply with such decision. They are neither
permitted to make B pick and choose in the same nor they can make a departure
from it on any ground much less a technical 0112.
10. In the case of Muhammad Ashraf and others vs. Federation of
Pakistan and 3 others (1999 SCMR
336) it was held by the apex Court that
its decision even if is based on niceties and legal
technicalities are binding on
all other Courts. Sound displeasure was, therefore,
expressed by their
lordship against the Authority not adhering to its
decision thus rendered
earlier.
Again it is the
fundamental obligation of the Courts to kill frivolous
Us in its very
inception and shall not be allowed even to take a single breath.
The
backlog crises are now very seriously taken. Through constant and
concerted
efforts this serious problem is being channelized and managed to
cut
its monstrous size posing imminent danger to the system itself. All these
efforts made day and
night by the superior Courts would receive grave set
back if the
subordinate Courts act the other way or fail in their duty to check
and counter frivolous/malicious litigation.
The people at large would also
loose
confidence in the system if matters closed and final one are re-opened
through the dirty tactics and tricks of art of technicalities.
11. The learned Additional District Judge has acted
carelessly in the
dispensation of justice and conveniently ignored that the
present petitioner
has been vexed not twice but thrice because for remanding the case to
comply with un-essential and negligible technicality. The
apex Court in the
case of Imtiaz Ahmad vs. Ghulam All (PLD 1963 SC
382) enunciated a
golden principle a sustainable one for centuries to come,
which is reproduced
below:-
"The
proper place of procedure in any system of administration of justice is to help and
not to thwart the grant to the people of their rights. All
technicalities have to be avoided unless it be essential to comply
with them on the ground of public policy~Any system which by
giving effect to the form and not to the substance defeats substantive
rights (and) is defective to that extent."
12. Judged from this angle as well, the impugned
judgment of the
learned
Additional District Judge is noting but a nullity in the eyes of law
and is unsustainable on any ground and on any premises
whatsoever.
The
principle and doctrine of constructive res judicata was squarely and
firmly applicable in the instant case because the respondents have made a crude
attempt to re-open a case/matter which was finally and conclusively decided, it amounts to
wanton act of infusing a life into a dead horse, therefore,
the objection petition filed by the respondents without any fear of rebuttal
can be termed on its face to be frivolous and malicious one. It is an iron
clad principle of justice that no one shall be allowed to retain ill-gotten gains albeit facts and
some principle of law might go in its favour. The doctrine of
res judicata is deeply entrenched in the system and provides relief and
respite to the opposite party from being vexed twice on the same issue. In
this ease the objection petition was dismissed by the learned
to the counsel for the parties
who had also fairly attended to the legal and factual aspects of the case, therefore, her order
was not liable to interference and that too in the manner as has been done by the
district appeal Court.
For the foregoing
reasons and discussion, this petition is accepted, the impugned judgment of the
learned Additional District Judge-IV,
These are the detail reasons for the short order of even date.
(J.Rj . Petition accepted