(a) Civil Procedure Code (V of 1908)‑‑‑
‑‑‑ Ss. 11 & 151 ‑‑‑ Constitution of Pakistan (1973), Art. 199‑‑Provisions of S. 11, C.P.C. do not apply in terms to a judgment delivered in a writ petition, general principles of res judicata, however, do apply to such cases ‑‑‑ Principles.
Section 11 of the C.P.C. did not, in terms, apply to a judgment delivered in a writ petition. However, the general principle of res judicata applies to such cases. It is a rule of law that a man shall not be twice vexed for one and the same cause. For this rule, two reasons have always been assigned; the one, public policy and the other, the hardship on the individual that he should be twice vexed for the same cause and when a party to litigation seeks improperly to raise again the identical question which has been decided by a competent Court, "a summary remedy may be found in the inherent jurisdiction which our Courts possess of preventing an abuse of process".
Even if Section 11 of the CPC may not, in terms, apply in support of the plea of res judicata, the general principles of res judicata are clearly attracted to debar a party from re‑agitating the matter afresh by a civil suit which had been put at rest by a judgment of the High Court passed in writ jurisdiction.
There would be something seriously wrong with our system of administration of justice, if it is held that there is no power in the Courts to prevent such an abuse of their process. Such a power has always been recognized to inhere in the Courts as an inseparable incident of an institution vested with the administration of justice and is expressly saved by Section 151 of the Code of Civil Procedure.
See Legal Maxims by Herbert Broom (Tenth Edition), pp. 217, 218 220; ZincenZini v. Regional Commissioner 1963 AC. 459; Muhammad Akhtar etc. v. Abdul Hadie etc. 1981 SCMR 878; Muhammad Chiraghud‑Din v. The Province of West Pakistan PLD 1971 SC 447; Abdul Majeed and others v. Abdul Ghafoo Khan and others PLD 1982 SC 146 and Muhammad Shafi and another v Muhammad Bakhsh and another PLD 1971 Lah. 148 ref.
(b) Civil Procedure Code (V of 1908)‑‑‑
‑‑‑ 0. VII, R. 11(d) ‑‑‑ Expression "law" in O.VII, R.11(d) means written law or statute law.
(c) Civil Procedure Code (V of 1908)‑‑‑
‑‑‑ 0. VII, R. 11 ‑‑‑ Provision of 0. VII, R. 11, C.P.C. is not exhaustive of a situations in which a plaint can be rejected or a suit can be dismissed summarily
Muhammad Akhtar etc. v. Abdul Hadie etc. 1981 SCMR 878 ref.
(d) Civil Procedure Code (V of 1908)‑‑
‑‑‑ 0. VII, R. 11‑‑Rejection of plaint ‑‑‑ Contention that "dispute having already been finally resolved by High Court, in case of fresh suit with regard to same matter, plaint should have been "summarily rejected"‑‑‑Held, proper order to make in such a suit was to dismiss the suit being barred by res judicata and not merely to reject the plaint. [pp. 228, 2291 F & G
Tariq Masood for Petitioners.
Hamid Ali Mirza represented by Legal Heirs for Respondents Nos. 1,
Khaqan Babar for Respondent No.4.
Dates of hearing: 16th, 17th and 20th January, 1990.
SHAHZAD HUSSAIN VS HAJIRA BIBIP L D 1990 Lahore 222Before Fazal Karim, JSyed SHAHZAD HUSSAIN and 4 others ‑‑‑ PetitionersversusMst. HAJIRA BIBI and 3 others ‑‑‑ RespondentsCivil Revision No.1162 of 1989, decided on 30/01/1990.
JUDGMENT
The facts leading to this revision petition under Section 115 of the CPC by the plaintiffs, Syed Shahzad Hussain and four others, are as follows. The petitioners and the defendants, Mst. Hajran Bibi, Jamshed and Muhammad Iqbal (to be referred to as the respondents) are all owners and occupants of properties situate at Jail Road, Lahore. While the petitioners, Syed Shahzad Hussain an others, are owners of Bungalow No. S.77‑R‑47 bearing Khasra Nos.625 and 626 the respondent, Mst. Hajran Bibi, is the owner of property bearing Khasra .No.619. One Mst. Lateef Begum is owner of property situate in Khasra No.620 There is a katcha road comprising Khasra Nos.621 and 622 and the properties situate in Khasra Nos.619, 620, 624, 625 and 626 all abut on this katcha road.
2. The properties bearing Khasra.Nos.619, 620, 624, 625 and 626 were al evacuee properties. Sometime in the year 1961, Syed Iftikhar Hussain predecessor‑in‑interest of the petitioners, started constructing a boundary wall "with an object to bring the excess road in Khasra Nos.621 and 622 to hi exclusive use". Mst. Lateef Begum made a representation to the Deputy Settlement Commissioner and the parties fought it out upto the highest forum in the hierarchy of the Settlement Authorities. The case of Syed Iftikhar Hussain before the Settlement Authorities had all along been "that Khasra Nos.626, 621 and 622 form one compact and individual unit and Badri Parshad and other evacuees were its owners by right of adverse possession. He further maintained that Khasra Nos.621 and 622 were necessary adjuncts to Khasra No.626 and were attached to it as a matter of absolute necessity and belonged to the same evacuee owners, and the owners of other properties cannot claim any right on these khasra numbers by way of easement". The Settlement Commissioner found against Syed Iftikhar Hussain and came to the conclusion that "Khasra Nos.621 and 622 are quite separate and had nothing to do with the property transferred to the appellant and since this was a passage this should remain common for use of all the interested parties".
3. The order of the learned Settlement Commissioner was challenged by means of a petition under Article 98 of the 1962 Constitution. The petition was dismissed by a learned Single Judge of this Court by his judgment dated 16‑4‑1964 and the Letters Patent Appeal of Syed Iftikhar Hussain was dismissed by a learned Division Bench of this Court by a judgment dated 27‑2‑1968.
4. The matter so rested till the petitioners instituted this suit on 21‑6‑1987. In this suit, the petitioners again pleaded that "the private passage bearing Khasra Nos.621 and 622 was also owned by the same evacuee owner who owned the bungalow bearing No.47, Jail Road, Lahore and was meant for exclusive approach to the property No. S.77‑R‑47". According to them, the petitioners, Syed Shahzad Hussain and Miss Surryya Hussain, son and daughter respectively of Syed Iftikhar Hussain, "have been in exclusive use of the private passage ‑bearing Khasra Nos.621 and 622 from 1947 and the remaining plaintiffs from the date of their respective occupation and prior to that, the evacuee owner (their ???????????????? predecessor) was in possession of the same exclusively The possession of the plaintiffs 1 and 2 over this passage is actual, visible, exclusive, hostile and uninterrupted for the last about 40 years while that of rest of the plaintiffs from the date of their respective occupation. The plaintiffs having always remained in open, overt and hostile possession of the passage in question, their title byprescription has already been perfected under Section 28 of the Limitation Act".
5. The cause of action for this suit arose because the respondents conspired with defendant No.4 (Lahore Development Authority) in taking the law in their own hands and in demolishing a portion of the western boundary wall of Khasra No.626 at point 'D' marked in the site plan??with a view to have approach to the private passage bearing Khasra Nos.621 and 622". They, therefore, claimed two reliefs, one of declaration "to the effect that the plaintiffs are owners in exclusive possession of the land bearing Khasra Nos.621 and 622? and the defendants have no right whatsoever to interfere with the lawful rights of the plaintiffs in respect of the land in question" and secondly that "the unauthorised and illegal opening made in the wall shown with the word 'AB' in the site plan and the Iron Gate installed on 23‑5‑1987 at point 'D' may kindly be directed to be closed". The respondents were also sought to be "permanently restrained from using the private passage in question and also from creating any hindrance in lawful and peaceful enjoyment of same".
6. In their written statement, the respondents raised a preliminary objection, namely, that "the dispute was finally resolved by the Lahore High Court, Lahore in Letters Patent Appeal No.216 of 1964 decided on 27‑2‑1968 whereby the passage comprising Khasra Nos.621 and 622 was declared to be common passage and not a part of the property transferred to Iftikhar Hussain predecessor‑in‑interest of the plaintiffs". The plaint, it was said, deserve "summary rejection". The fourth defendant, Lahore Development Authority, also contested the suit by filing a written statement.
7. The learned Civil Judge gave effect to the preliminary objection and held that the question whether the disputed passage was a public passage was finally decided by the High Court; in his view, the decision of the High Court dated 27‑2 1968 precluded the plaintiffs to lay a claim to the ownership of the passage. He therefore, rejected the plaint. In so doing, he did not, however, mention the provision under which he had done so. On appeal, the learned Additional District Judge affirmed the judgment of the learned Civil Judge.
8. Hence this revision petition.
9. Learned counsel for the petitioners argued that the judgment of the learned Courts below cannot be sustained in law, because in rejecting the plaint, they should have confined themselves to the statement of facts in the plaint and that they were in error in giving effect to the preliminary objection of the respondents based upon the decision of this Court dated 27‑2‑1968. According to him, the petitioners' claim in the suit was that by having remained in actual and exclusive hostile possession of the passage in dispute, "their title by prescription has already been perfected under Section 28 of the Limitation Act" and the right, if any, of the respondents to the passage "has already been extinguished" and this question was not decided by the decision of this Court dated 27‑2‑1968. In any case, so argued the petitioners' counsel, the petitioners' plaint could not be rejected as to the other relief, namely, that the respondents had made an unauthorised and illegal opening and installed an iron gate in the property of the petitioners.
10. Learned counsel for the respondents on the other hand supported the judgments of the Courts below; in their view, even if Section 11 of the CPC was not attracted, the general principle of res judicata applied and. the plaint was, therefore, rightly rejected.
11. That the judgment of this Court dated 27‑2‑1968 finally decided the question that the passage comprising Khasra Nos.621 and 622 was a common passage for the use of the owners of properties situate in Khasra Nos.619, 620, 624, 625 and 626 and the petitioners could not claim adverse possession, there is no doubt. If I may quote from the judgment dated 27‑2‑1968, the case of Syed Iftikhar Hussain had all along been:
"That Khasra Nos.626, 621 and 622 form one compact and individual unit and Badri Parshad and other evacuees were its owners by right of adverse possession. He further maintained that Khasra Nos.621 and 622 ??????? were necessary adjuncts to Khasra No.626 and were attached to it as a matter of absolute necessity and belonged to the same evacuee owners, ??? and the owners of other properties cannot claim any right on these Khasra numbers by way of easement." ??? The learned Settlement Commissioner had, "after going through the entire history of the case, come to the conclusion that Khasra Nos.621 and 622 are quite separate and had nothing to do with the property transferred to the appellant (Syed Iftikhar Hussain) and this was a passage which should remain common for use of all the interested parties".
12. Before the learned Division Bench, it was argued on behalf of Syed Iftikhar Hussain that "according to the Jammanbandi, Annexure 'D', although these Khasra numbers are mentioned as road (Sarak) but in the column of ownership Badri Parshad and others, who were 'owners of Bungalow No.47 situate on Khasra No.626, have been shown as owners of this land as (bawajha band shikan Qabza billa Lagan). and that "the road on Khasra Nos.621 and 622 was exclusively meant for the use of Badri Parshad and others who were the evacuee owners of Bungalow No.47, Jail Road, Lahore".
13. The argument, it was held by the learned Division Bench, was completely devoid of force:
"A perusal of the survey map placed by the appellant on record as Annexure 'A' and 'B' with the writ petition shows that there are various properties on both sides of Khasra Nos.621 and 622 and these Khasra numbers on these survey maps have been shown with dotted line, which, according to the table of indication, shows that these are Katcha Roads. The properties which are abutting to this Katcha Road are situated on Khasra Nos.619, 620, 620/1, 624, 625 and 620 and this Katcha Road passes through all these properties and leads upto the bungalow of the appellant. It is, therefore, obvious that the appellant cannot, in, law, claim any exclusive possession for the common road which is marked on the survey map of 1939‑40 as a Katcha Road and passes through all the Khasra numbers, mentioned above. The mere fact that these have been shown to be in possession of Badri Parshad and others as evacuee owners in the Jamabandi for the year 1957‑58 cannot establish adverse possession of Badri Parshad and others to this common passage."
14. Learned counsel for the petitioners called my attention to the observation of the learned Division Bench that the question whether the disputed Khasra Nos.621 and 622 were the exclusive passage "to be used by the appellant alone or these are to be used in common with other persons of the adjoining properties is a question of fact and this Court will not hold an enquiry and reopen the factual aspect or substitute its own judgment against the clear finding of fact arrived at by the learned Settlement Commissioner" and that the learned Single Judge was right in holding that "this was a pure question of fact in which this Court should not embark upon any enquiry". From the observation of the learned Division Bench cited above, it, however, appears, and appears clearly, that the learned Division Bench had affirmed the finding of fact arrived at by the learned Settlement Commissioner that Khasra Nos.621 and 622 had not been transferred to Syed Iftikhar Hussain and that the land comprising those Khasra numbers was common passage for the use of the owners of properties situate in Khasra Nos.619, 620, 624, 625 and 626.
15. This Court's judgment dated 27‑2‑1968 was delivered in a writ petition and not in a suit. Therefore, Section 11 of the CPC did not, in terms, apply. However, it is now well settled that the general principle of res judicata applies to such cases. It is a rule of law that a man shall not be twice vexed for one and the same cause. For this rule, two reasons have always been assigned; the one, public policy and the other, the hardship on the individual that he should be twice vexed for the same cause and when a party to litigation seeks improperly to raise again the identical question which has been decided by a competent Court, "a summary remedy may be found in the inherent jurisdiction which our Courts possess of preventing an abuse of process". (See Legal Maxims by Herbert Broom (Tenth Edition) at pages 217, 218, 220). In Zincenzini v. Regional Commissioner 1963 AC 459, the Court was held entitled, by virtue of this inherent power to prevent abuse of its process, to strike out the tax payer's appeal or dismiss it, where the tax‑payer's continued refusal to comply with the direction stipulated by the relevant rules had or might have had the effect of postponing, until the determination of the appeal, his obligation to pay a substantial part of his assessed tax.
16. That the reason upon which the Courts claim to be entitled to dismiss such a suit is the prevention of the abuse of process was recognized in Muhammad Akhtar etc. v. Abdul Hadie etc. 1981 SCMR 878, where in the first round of litigation, it was held that the petitioner before the Supreme Court was the transferee and owner of the property in dispute and the respondent was its tenant. After that round of litigation had ended with the order of the Supreme Court dated 16‑12‑1979, the tenant started the second round of litigation by filing a civil suit and it was held that "after the aforesaid adjudication by this Court, a fresh suit to re‑agitate the same matter could not have been filed by the respondent which was nothing but an abuse of the process of law".
17. It is also now well established by authority that even if section 11 of the C.P.C. may not, in terms, apply in support of the plea of res judicata, the general principles of res judicate are clearly attracted to debar a party from re‑agitating B the matter afresh by a civil suit which had been put at rest by a judgment of the High Court passed in writ jurisdiction. (See Muhammad Chiraghud‑Din v. The I Province of West Pakistan PLD 1971 SC 447; Abdul Majeed and others v. Abdul Ghafoor Khan and others PLD 1982 Supreme Court 146 and Muhammad Shafi and another v. Muhammad Bakhsh and another PLD 1971 Lah. 148.
18. It is demonstrably clear that there would be something seriously wrong with our system of administration of justice, if we were to hold that there is no power in the Courts to prevent such an abuse of their process. Such a power has always been recognized to inhere in the Courts as an inseparable incident of an institution vested with the administration of justice and is expressly saved by Section 151 of the Code of Civil Procedure by enacting:
"Saving of inherent powers of Court.‑‑Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court."
19. Now as has been seen above, the learned Courts below did not reject the petitioners' plaint under Order 7 rule 11 of the C.P.C. and in my view rightly. It is obvious that if the provisions of Order 7 rule 11 of the C.P.C. applied, then the plaint could be rejected under clause (d) thereof, namely, "where the suit appears from the statement in the plaint to be barred by any law". The expression "law' here, it seems to me, means written law or statute law. If I am right in that view, then it was not a case of rejection of plaint under Order 7 rule 11 of the C.P.C; it was a case in which the suit was liable to be dismissed on the general principle of' res judicata, for the present suit, so far as the dispute about the passage comprising Khasra Nos.621 and 622 was concerned "was nothing but an abuse of process of law". As was held in Muhammad Akhtar v. Abdul Hadie, Order 7, E rule 11 "is not exhaustive of all situations in which a plaint can be rejected suit can be dismissed summarily'.
20. It follows, therefore, that the proper order to make in such a case is to dismiss the suit and not merely to reject the plaint. This again receives support from Muhammad Akhtar v. Abdul Hadie, where the orders of the Courts below were maintained "whereby the plaint had been rejected and the suit was dismissed in that form". In Muhammad Chiragh Din's case also, the High Court had dismissed the petitioners' suit on the ground that the order of the High Court passed in writ jurisdiction was a bar to the petitioners' suit on the principle of res judicata and the dismissal of the suit was upheld by the Supreme Court.
21. For these reasons I would repel the contention that it was a case falling under Order 7 rule 11 of the CPC and that the Courts below were wrong in proceeding as they did.
22. I, however, agree with the petitioners' counsel that the plaint could not be rejected so far as the relief that the respondents had installed a gate on the petitioners' property viz. Khasra No.626 was concerned. That is a question of fact; no such question arose in the previous litigation between the parties; nor was any such question decided.
23. In the result, I would hold that the entire dispute relating to the passage comprising Khasra Nos.621 and 622 tried to be re‑opened in this suit by the petitioners, including the plea of adverse possession or prescription, was barred by res judicata and that the suit was liable to dismissal. To that extent, their suit will be deemed to have been dismissed. The revision petition is, however, accepted in so far as the learned Courts below rejected the plaint as regards the second relief. To that extent, the orders of the Courts below are set aside and the suit is sent back to the learned Civil Judge for its decision in accordance with law.
M.BA./S‑639/L Order accordingly.
(a) Civil Procedure Code (V of 1908)‑‑‑
‑‑‑ Ss. 11 & 151 ‑‑‑ Constitution of Pakistan (1973), Art. 199‑‑Provisions of S. 11, C.P.C. do not apply in terms to a judgment delivered in a writ petition, general principles of res judicata, however, do apply to such cases ‑‑‑ Principles.
Section 11 of the C.P.C. did not, in terms, apply to a judgment delivered in a writ petition. However, the general principle of res judicata applies to such cases. It is a rule of law that a man shall not be twice vexed for one and the same cause. For this rule, two reasons have always been assigned; the one, public policy and the other, the hardship on the individual that he should be twice vexed for the same cause and when a party to litigation seeks improperly to raise again the identical question which has been decided by a competent Court, "a summary remedy may be found in the inherent jurisdiction which our Courts possess of preventing an abuse of process".
Even if Section 11 of the CPC may not, in terms, apply in support of the plea of res judicata, the general principles of res judicata are clearly attracted to debar a party from re‑agitating the matter afresh by a civil suit which had been put at rest by a judgment of the High Court passed in writ jurisdiction.
There would be something seriously wrong with our system of administration of justice, if it is held that there is no power in the Courts to prevent such an abuse of their process. Such a power has always been recognized to inhere in the Courts as an inseparable incident of an institution vested with the administration of justice and is expressly saved by Section 151 of the Code of Civil Procedure.
See Legal Maxims by Herbert Broom (Tenth Edition), pp. 217, 218 220; ZincenZini v. Regional Commissioner 1963 AC. 459; Muhammad Akhtar etc. v. Abdul Hadie etc. 1981 SCMR 878; Muhammad Chiraghud‑Din v. The Province of West Pakistan PLD 1971 SC 447; Abdul Majeed and others v. Abdul Ghafoo Khan and others PLD 1982 SC 146 and Muhammad Shafi and another v Muhammad Bakhsh and another PLD 1971 Lah. 148 ref.
(b) Civil Procedure Code (V of 1908)‑‑‑
‑‑‑ 0. VII, R. 11(d) ‑‑‑ Expression "law" in O.VII, R.11(d) means written law or statute law.
(c) Civil Procedure Code (V of 1908)‑‑‑
‑‑‑ 0. VII, R. 11 ‑‑‑ Provision of 0. VII, R. 11, C.P.C. is not exhaustive of a situations in which a plaint can be rejected or a suit can be dismissed summarily
Muhammad Akhtar etc. v. Abdul Hadie etc. 1981 SCMR 878 ref.
(d) Civil Procedure Code (V of 1908)‑‑
‑‑‑ 0. VII, R. 11‑‑Rejection of plaint ‑‑‑ Contention that "dispute having already been finally resolved by High Court, in case of fresh suit with regard to same matter, plaint should have been "summarily rejected"‑‑‑Held, proper order to make in such a suit was to dismiss the suit being barred by res judicata and not merely to reject the plaint. [pp. 228, 2291 F & G
Tariq Masood for Petitioners.
Hamid Ali Mirza represented by Legal Heirs for Respondents Nos. 1,
Khaqan Babar for Respondent No.4.
Dates of hearing: 16th, 17th and 20th January, 1990.
JUDGMENT
The facts leading to this revision petition under Section 115 of the CPC by the plaintiffs, Syed Shahzad Hussain and four others, are as follows. The petitioners and the defendants, Mst. Hajran Bibi, Jamshed and Muhammad Iqbal (to be referred to as the respondents) are all owners and occupants of properties situate at Jail Road, Lahore. While the petitioners, Syed Shahzad Hussain an others, are owners of Bungalow No. S.77‑R‑47 bearing Khasra Nos.625 and 626 the respondent, Mst. Hajran Bibi, is the owner of property bearing Khasra .No.619. One Mst. Lateef Begum is owner of property situate in Khasra No.620 There is a katcha road comprising Khasra Nos.621 and 622 and the properties situate in Khasra Nos.619, 620, 624, 625 and 626 all abut on this katcha road.
2. The properties bearing Khasra.Nos.619, 620, 624, 625 and 626 were al evacuee properties. Sometime in the year 1961, Syed Iftikhar Hussain predecessor‑in‑interest of the petitioners, started constructing a boundary wall "with an object to bring the excess road in Khasra Nos.621 and 622 to hi exclusive use". Mst. Lateef Begum made a representation to the Deputy Settlement Commissioner and the parties fought it out upto the highest forum in the hierarchy of the Settlement Authorities. The case of Syed Iftikhar Hussain before the Settlement Authorities had all along been "that Khasra Nos.626, 621 and 622 form one compact and individual unit and Badri Parshad and other evacuees were its owners by right of adverse possession. He further maintained that Khasra Nos.621 and 622 were necessary adjuncts to Khasra No.626 and were attached to it as a matter of absolute necessity and belonged to the same evacuee owners, and the owners of other properties cannot claim any right on these khasra numbers by way of easement". The Settlement Commissioner found against Syed Iftikhar Hussain and came to the conclusion that "Khasra Nos.621 and 622 are quite separate and had nothing to do with the property transferred to the appellant and since this was a passage this should remain common for use of all the interested parties".
3. The order of the learned Settlement Commissioner was challenged by means of a petition under Article 98 of the 1962 Constitution. The petition was dismissed by a learned Single Judge of this Court by his judgment dated 16‑4‑1964 and the Letters Patent Appeal of Syed Iftikhar Hussain was dismissed by a learned Division Bench of this Court by a judgment dated 27‑2‑1968.
4. The matter so rested till the petitioners instituted this suit on 21‑6‑1987. In this suit, the petitioners again pleaded that "the private passage bearing Khasra Nos.621 and 622 was also owned by the same evacuee owner who owned the bungalow bearing No.47, Jail Road, Lahore and was meant for exclusive approach to the property No. S.77‑R‑47". According to them, the petitioners, Syed Shahzad Hussain and Miss Surryya Hussain, son and daughter respectively of Syed Iftikhar Hussain, "have been in exclusive use of the private passage ‑bearing Khasra Nos.621 and 622 from 1947 and the remaining plaintiffs from the date of their respective occupation and prior to that, the evacuee owner (their ???????????????? predecessor) was in possession of the same exclusively The possession of the plaintiffs 1 and 2 over this passage is actual, visible, exclusive, hostile and uninterrupted for the last about 40 years while that of rest of the plaintiffs from the date of their respective occupation. The plaintiffs having always remained in open, overt and hostile possession of the passage in question, their title byprescription has already been perfected under Section 28 of the Limitation Act".
5. The cause of action for this suit arose because the respondents conspired with defendant No.4 (Lahore Development Authority) in taking the law in their own hands and in demolishing a portion of the western boundary wall of Khasra No.626 at point 'D' marked in the site plan??with a view to have approach to the private passage bearing Khasra Nos.621 and 622". They, therefore, claimed two reliefs, one of declaration "to the effect that the plaintiffs are owners in exclusive possession of the land bearing Khasra Nos.621 and 622? and the defendants have no right whatsoever to interfere with the lawful rights of the plaintiffs in respect of the land in question" and secondly that "the unauthorised and illegal opening made in the wall shown with the word 'AB' in the site plan and the Iron Gate installed on 23‑5‑1987 at point 'D' may kindly be directed to be closed". The respondents were also sought to be "permanently restrained from using the private passage in question and also from creating any hindrance in lawful and peaceful enjoyment of same".
6. In their written statement, the respondents raised a preliminary objection, namely, that "the dispute was finally resolved by the Lahore High Court, Lahore in Letters Patent Appeal No.216 of 1964 decided on 27‑2‑1968 whereby the passage comprising Khasra Nos.621 and 622 was declared to be common passage and not a part of the property transferred to Iftikhar Hussain predecessor‑in‑interest of the plaintiffs". The plaint, it was said, deserve "summary rejection". The fourth defendant, Lahore Development Authority, also contested the suit by filing a written statement.
7. The learned Civil Judge gave effect to the preliminary objection and held that the question whether the disputed passage was a public passage was finally decided by the High Court; in his view, the decision of the High Court dated 27‑2 1968 precluded the plaintiffs to lay a claim to the ownership of the passage. He therefore, rejected the plaint. In so doing, he did not, however, mention the provision under which he had done so. On appeal, the learned Additional District Judge affirmed the judgment of the learned Civil Judge.
8. Hence this revision petition.
9. Learned counsel for the petitioners argued that the judgment of the learned Courts below cannot be sustained in law, because in rejecting the plaint, they should have confined themselves to the statement of facts in the plaint and that they were in error in giving effect to the preliminary objection of the respondents based upon the decision of this Court dated 27‑2‑1968. According to him, the petitioners' claim in the suit was that by having remained in actual and exclusive hostile possession of the passage in dispute, "their title by prescription has already been perfected under Section 28 of the Limitation Act" and the right, if any, of the respondents to the passage "has already been extinguished" and this question was not decided by the decision of this Court dated 27‑2‑1968. In any case, so argued the petitioners' counsel, the petitioners' plaint could not be rejected as to the other relief, namely, that the respondents had made an unauthorised and illegal opening and installed an iron gate in the property of the petitioners.
10. Learned counsel for the respondents on the other hand supported the judgments of the Courts below; in their view, even if Section 11 of the CPC was not attracted, the general principle of res judicata applied and. the plaint was, therefore, rightly rejected.
11. That the judgment of this Court dated 27‑2‑1968 finally decided the question that the passage comprising Khasra Nos.621 and 622 was a common passage for the use of the owners of properties situate in Khasra Nos.619, 620, 624, 625 and 626 and the petitioners could not claim adverse possession, there is no doubt. If I may quote from the judgment dated 27‑2‑1968, the case of Syed Iftikhar Hussain had all along been:
"That Khasra Nos.626, 621 and 622 form one compact and individual unit and Badri Parshad and other evacuees were its owners by right of adverse possession. He further maintained that Khasra Nos.621 and 622 ??????? were necessary adjuncts to Khasra No.626 and were attached to it as a matter of absolute necessity and belonged to the same evacuee owners, ??? and the owners of other properties cannot claim any right on these Khasra numbers by way of easement." ??? The learned Settlement Commissioner had, "after going through the entire history of the case, come to the conclusion that Khasra Nos.621 and 622 are quite separate and had nothing to do with the property transferred to the appellant (Syed Iftikhar Hussain) and this was a passage which should remain common for use of all the interested parties".
12. Before the learned Division Bench, it was argued on behalf of Syed Iftikhar Hussain that "according to the Jammanbandi, Annexure 'D', although these Khasra numbers are mentioned as road (Sarak) but in the column of ownership Badri Parshad and others, who were 'owners of Bungalow No.47 situate on Khasra No.626, have been shown as owners of this land as (bawajha band shikan Qabza billa Lagan). and that "the road on Khasra Nos.621 and 622 was exclusively meant for the use of Badri Parshad and others who were the evacuee owners of Bungalow No.47, Jail Road, Lahore".
13. The argument, it was held by the learned Division Bench, was completely devoid of force:
"A perusal of the survey map placed by the appellant on record as Annexure 'A' and 'B' with the writ petition shows that there are various properties on both sides of Khasra Nos.621 and 622 and these Khasra numbers on these survey maps have been shown with dotted line, which, according to the table of indication, shows that these are Katcha Roads. The properties which are abutting to this Katcha Road are situated on Khasra Nos.619, 620, 620/1, 624, 625 and 620 and this Katcha Road passes through all these properties and leads upto the bungalow of the appellant. It is, therefore, obvious that the appellant cannot, in, law, claim any exclusive possession for the common road which is marked on the survey map of 1939‑40 as a Katcha Road and passes through all the Khasra numbers, mentioned above. The mere fact that these have been shown to be in possession of Badri Parshad and others as evacuee owners in the Jamabandi for the year 1957‑58 cannot establish adverse possession of Badri Parshad and others to this common passage."
14. Learned counsel for the petitioners called my attention to the observation of the learned Division Bench that the question whether the disputed Khasra Nos.621 and 622 were the exclusive passage "to be used by the appellant alone or these are to be used in common with other persons of the adjoining properties is a question of fact and this Court will not hold an enquiry and reopen the factual aspect or substitute its own judgment against the clear finding of fact arrived at by the learned Settlement Commissioner" and that the learned Single Judge was right in holding that "this was a pure question of fact in which this Court should not embark upon any enquiry". From the observation of the learned Division Bench cited above, it, however, appears, and appears clearly, that the learned Division Bench had affirmed the finding of fact arrived at by the learned Settlement Commissioner that Khasra Nos.621 and 622 had not been transferred to Syed Iftikhar Hussain and that the land comprising those Khasra numbers was common passage for the use of the owners of properties situate in Khasra Nos.619, 620, 624, 625 and 626.
15. This Court's judgment dated 27‑2‑1968 was delivered in a writ petition and not in a suit. Therefore, Section 11 of the CPC did not, in terms, apply. However, it is now well settled that the general principle of res judicata applies to such cases. It is a rule of law that a man shall not be twice vexed for one and the same cause. For this rule, two reasons have always been assigned; the one, public policy and the other, the hardship on the individual that he should be twice vexed for the same cause and when a party to litigation seeks improperly to raise again the identical question which has been decided by a competent Court, "a summary remedy may be found in the inherent jurisdiction which our Courts possess of preventing an abuse of process". (See Legal Maxims by Herbert Broom (Tenth Edition) at pages 217, 218, 220). In Zincenzini v. Regional Commissioner 1963 AC 459, the Court was held entitled, by virtue of this inherent power to prevent abuse of its process, to strike out the tax payer's appeal or dismiss it, where the tax‑payer's continued refusal to comply with the direction stipulated by the relevant rules had or might have had the effect of postponing, until the determination of the appeal, his obligation to pay a substantial part of his assessed tax.
16. That the reason upon which the Courts claim to be entitled to dismiss such a suit is the prevention of the abuse of process was recognized in Muhammad Akhtar etc. v. Abdul Hadie etc. 1981 SCMR 878, where in the first round of litigation, it was held that the petitioner before the Supreme Court was the transferee and owner of the property in dispute and the respondent was its tenant. After that round of litigation had ended with the order of the Supreme Court dated 16‑12‑1979, the tenant started the second round of litigation by filing a civil suit and it was held that "after the aforesaid adjudication by this Court, a fresh suit to re‑agitate the same matter could not have been filed by the respondent which was nothing but an abuse of the process of law".
17. It is also now well established by authority that even if section 11 of the C.P.C. may not, in terms, apply in support of the plea of res judicata, the general principles of res judicate are clearly attracted to debar a party from re‑agitating B the matter afresh by a civil suit which had been put at rest by a judgment of the High Court passed in writ jurisdiction. (See Muhammad Chiraghud‑Din v. The I Province of West Pakistan PLD 1971 SC 447; Abdul Majeed and others v. Abdul Ghafoor Khan and others PLD 1982 Supreme Court 146 and Muhammad Shafi and another v. Muhammad Bakhsh and another PLD 1971 Lah. 148.
18. It is demonstrably clear that there would be something seriously wrong with our system of administration of justice, if we were to hold that there is no power in the Courts to prevent such an abuse of their process. Such a power has always been recognized to inhere in the Courts as an inseparable incident of an institution vested with the administration of justice and is expressly saved by Section 151 of the Code of Civil Procedure by enacting:
"Saving of inherent powers of Court.‑‑Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court."
19. Now as has been seen above, the learned Courts below did not reject the petitioners' plaint under Order 7 rule 11 of the C.P.C. and in my view rightly. It is obvious that if the provisions of Order 7 rule 11 of the C.P.C. applied, then the plaint could be rejected under clause (d) thereof, namely, "where the suit appears from the statement in the plaint to be barred by any law". The expression "law' here, it seems to me, means written law or statute law. If I am right in that view, then it was not a case of rejection of plaint under Order 7 rule 11 of the C.P.C; it was a case in which the suit was liable to be dismissed on the general principle of' res judicata, for the present suit, so far as the dispute about the passage comprising Khasra Nos.621 and 622 was concerned "was nothing but an abuse of process of law". As was held in Muhammad Akhtar v. Abdul Hadie, Order 7, E rule 11 "is not exhaustive of all situations in which a plaint can be rejected suit can be dismissed summarily'.
20. It follows, therefore, that the proper order to make in such a case is to dismiss the suit and not merely to reject the plaint. This again receives support from Muhammad Akhtar v. Abdul Hadie, where the orders of the Courts below were maintained "whereby the plaint had been rejected and the suit was dismissed in that form". In Muhammad Chiragh Din's case also, the High Court had dismissed the petitioners' suit on the ground that the order of the High Court passed in writ jurisdiction was a bar to the petitioners' suit on the principle of res judicata and the dismissal of the suit was upheld by the Supreme Court.
21. For these reasons I would repel the contention that it was a case falling under Order 7 rule 11 of the CPC and that the Courts below were wrong in proceeding as they did.
22. I, however, agree with the petitioners' counsel that the plaint could not be rejected so far as the relief that the respondents had installed a gate on the petitioners' property viz. Khasra No.626 was concerned. That is a question of fact; no such question arose in the previous litigation between the parties; nor was any such question decided.
23. In the result, I would hold that the entire dispute relating to the passage comprising Khasra Nos.621 and 622 tried to be re‑opened in this suit by the petitioners, including the plea of adverse possession or prescription, was barred by res judicata and that the suit was liable to dismissal. To that extent, their suit will be deemed to have been dismissed. The revision petition is, however, accepted in so far as the learned Courts below rejected the plaint as regards the second relief. To that extent, the orders of the Courts below are set aside and the suit is sent back to the learned Civil Judge for its decision in accordance with law.
M.BA./S‑639/L Order accordingly.
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