IN THE HIGH COURT OF SINDH AT KARACHI

PRESENT: MR. JUSTICE SALAHUDDIN PANHWAR

SUIT NO.300/1988

Plaintiffs : Ume-Aiman & others,

Defendants : Muhammad Yousuf & others,

……………..

SUIT NO.796/2007

Plaintiffs : Jamilur Rehman & another,

Defendants : Ume-Aiman and others,

……………..

SUIT NO.979/2007

Plaintiffs : Mohammad Aslam Siddiqui & another,

Defendants : Shamimuddin & others,

……………..

SUIT NO.628/2010

Plaintiff : Mst. Shahina Begum,

Defendants : Ume-Aiman & others,

……………..

SUIT NO.1273/2013

Plaintiffs : Muhammad Arif & another,

Defendants : Mohammad Zaheem & others,

……………..

Appearance:

Mr. Fasihuddin, advocate for plaintiff in Suit No.628/2010 and for defendant
No.12 in Suit No.300/1988.
 - { 2 } -

Mr. Agha Zafar Ahmed advocate for plaintiff in Suit No.796/2007 and for
interveners in Suit No.300/1988.

Mr. Haider Imam Rizvi and Mr. Danish Nayyar, advocates for plaintiff in
Suit No.979/2007.

Mr. Mushtaq A. Memon, advocate for plaintiff in Suit No.300/1988 and for
defendants No.1 to 4, 6 to 9, 11, 22, 23, 25, 26, 27 & 29 in Suit No.979/2007.

Mr. Izhar Alam Farooqui, advocate for defendants in Suits No.300/1988 &
796/2007 and for intervener in Suit No.979/2007.

Ms. Sana Akram Minhas, advocate defendants No.1 to 44 in Suit

No.796/2007, for defendants No.1 to 44 in Suit No.628/2010 and for
defendants No.5(i) to 5(Ixxxviii) in Suit No.1273/2013.

Mr. Ravi R. Pinjani, advocate for legal heir of Muhammad

Yasin(applicant)/intervener in Suit No.1273/2013.

M/s. Nasreen Sehto, Ms. Ascho Marzia Begum and Shamsher A. Khan
Azeemi, State Counsel.

Date of hearing : 18th, 25th & 28th May; and 11th, 25th& 30th
November, 2015.

Date of announcement : 10.02.2016.

ORDER

This order will dispose of applications under Order VII Rule 11

CPC in all suits except Suit No.300/1988.

2. Brief facts of Suit No.796/2007 are that late Abdul Rehman

uncle of plaintiffs herein alongwith his family and late Abdul Jalil with his

family including plaintiffs were in possession of the premises No.G/2, on

ground floor of the property bearing No.JM-120, VII-D/118, known as 30-

Mirza Khalij Baig Road, Karachi, as tenant and used to pay rent to the

Custodian as property being Evacuee property; that by order of Settlement

Commissioner Karachi dated 03.08.1960 passed under the Displaced Person

(Compensation & Rehabilitation) Act 1958, subject premises was transferred

 - { 3 } -

to deceased Abdul Rehman for sum of Rs.20,280/- which was paid, followed

by PTD dated 13.09.1961 and mutation whereafter deceased Abdul Rehman

orally gifted the subject property to his brother Abdul Jalil on 28.10.1984 who

in turn gifted the same orally on 10.10.1996 to his sons (plaintiffs) and

confirmed by Declaration of Gift dated 28.01.1997 and mutated in their

favour who are bonafide owners; that in June 2002 defendant No.59

threatened to take over possession on ground of having been appointed

receiver by this Court in Suit No.300/1988 filed by defendants NO.1 to 44

against defendants No.45 to 58; thereafter on application under Order 40

Rule 1 (2) R/W Section 12(2) CPC filed by plaintiffs by order dated

26.06.2002 this Court directed defendant No.59 to maintain status quo and

restraining them from third party interest; that plaintiffs were not party to

Suit NO.300/1988 which remained pending before this Court wherein

plaintiffs were allowed two months‟ time to file their own suit for

adjudication of their rights claimed in the property; thus inter alia plaintiffs

prayed for declaration that plaintiffs are in possession as owners of subject

premises and for issuance of permanent injunction accordingly.

3. Plaintiffs in Suit No.979/2007 pleaded that they are lawful

owners of Plot No.530/1-A and 530/1-B, Survey Sheet No.GRE (Custodian

Survey No.VII, AE, Survey Sheet No.345), Deap Chand Ojha Road, New

Town, Karachi, respectively, total measuring 1384 sq. yards, by virtue of two

registered Sale Deeds dated 03.06.1998 against consideration, purchased

from Ahmed Raza Khan and Raza Imam and others; that defendants No.1 to

45 legal heirs of one late Haji Ghulam Aulia who claimed properties in Suit

No.300/1988; that suit properties were evacuee properties and were allotted;

that subsequently a dispute arose between Munshi Raza Khan and one Mst.
 - { 4 } -

Qamar Jehan Begum who claimed to have sharing physical possession of suit

properties with Munshi Raza Khan which matter was finally and amicably

settled at the then High Court of West Pakistan; that plaintiffs on coming to

know about Suit 300/1988 in 2002 on service of notice by Official Assignee,

filed application under section 151 CPC and one under Order I Rule 10 CPC

whereon this Court restrained the Official Assignee from taking over

possession of suit properties however on expiry of above restraining order,

some unknown persons started threatening; that plaintiffs have delivered

physical possession of properties to M/s. Total PARCO Pakistan after

memorandum of understanding with them on 02.06.2001 for setting up

petroleum service station at suit properties; with above contentions plaintiffs

inter alia prayed for declaration that suit properties were rightly, legally sold

to late Munshi Raza Khan by Settlement Department vide Sale Deed dated

11.01.1961 which was subsequently corrected vide Rectification Deed dated

30.08.1961 for that plaintiffs are legal and lawful owners of the same and

accordingly for permanent injunction.

4. Case set out in Suit No.628/2010 is that plaintiff is owner and

in possession of premises No.G1 & G3, on the property bearing No.JM-120,

VII-D/118, known as Mirza Khalij Baig Road, Karachi, admeasuring 577.50

sq. yards vide Conveyance Deed dated 26.04.1998 executed between plaintiff

and legal heirs of Sheikh Ahmed Seoni and Shaikh Zaheer Ahmed Seoni, in

whose names the property was mutated as per Form VII (Annexure-L); that

subject property was purchased by plaintiff after completing all formalities

viz. calling objections from general public; that subsequently mutation was

effected in favour of plaintiff; that plaintiff enjoyed the suit property as

lawful and legal owner till dispossession by the Official Assignee/defendant

 - { 5 } -

No.56 appointed by this Court in Suit NO.300/1988 when plaintiff was out

of city and subject property was under lock of plaintiff as well plaintiff was

not even party to that suit; that it was found that this Court by order dated

12.02.2002 passed in aforesaid suit appointed defendant No.56 as

commissioner to recover rent of properties which also included the subject

premises of plaintiff and by consent order 18.04.2002 same defendant was

appointed receiver followed by order dated 03.06.2002 authorizing same

defendant to take over possession of the property by breaking open the lock;

that thereafter on application under Order 1 Rule 10 CPC filed by plaintiff,

this Court by order dated 23.04.2007 impleaded the plaintiff as party to that

suit and further directed Official Assignee/defendant No.59 not to

dispossessed the plaintiff from suit property for period of two months and

set at liberty to file her own suit for adjudication of her rights claimed in the

property, with the same order subject property was unsealed and possession

was delivered to plaintiff; that the PTO dated 01.02.1960 issued in favour of

late Shaikh Nasir Ahmed Seoni and transfer order dated 07.01.1975 issued in

favour of Shaikh Nasir Ahmed Seoni and Shaikh Zaheer Ahmed Seoni under

Displaced Persons (Compensation & Rehabilitation) Act 1958 was not

challenged by defendants No.1 to 56 in any proceedings hence attained

finality therefore plaintiff can not be dispossessed; thus plaintiff has inter alia

prayed for declaration that she is in possession as lawful owner of subject

premises, and that Custodian of Evacuee Property has no right or locus standi

to pass order dated 27.06.1974 or any order after issuance of PTO in favour of

plaintiff by Settlement Department after having become functus officio, and

for issuance of permanent injunction accordingly.

 - { 6 } -

5. Plaintiffs of Suit No.1273/2013 have come with the contentions

that plaintiff No.1 and defendant No.1 are legal heirs of late Mst. Khurshid

Hashmi wife of late Hashmatullah and plaintiff No.2 and defendants No.2(i)

to (iv) are legal heirs of late Muhammad Yasin and defendants No.3(i) to (ix)

are legal heirs of late Abul Mohsin, all of whom are in joint possession and

owner of Plot No.A.M. 281, Artillery Maidan Quarter, Abdullah Haroon

Road, Karachi, admeasuring 690 sq. yards having acquired under a

Permanent Transfer Order dated 13.06.1974 issued by defendant No.7, this

Permanent Transfer Order as well earlier Provisional Transfer Order were in

favour and joint ownership of late Mohammad Yasin and M/s. International

Trade Agency – a partnership concern between late Abul Mohsin and late

Mst. Khurshid Hashmi; that Balram Diyaldas obtained the suit property in

1945 from the then government and at the time when he left Pakistan in

1948/1949 some installments towards the sale consideration were unpaid;

that in 1948 plaintiff‟s predecessors entered into agreement of sale of suit

property for Rs.60,000/- with Diyaldas and made partial payment of

purchase price and obtained possession and started raising construction; that

on application of plaintiffs and defendants No.3‟s predecessors Deputy

Settlement Commissioner in 1960 declared that predecessors of plaintiffs are

entitled to transfer of suit property then Ministry of Rehabilitation issued a

provisional transfer order No.08114 dated 05.11.1960 in favour of

predecessors of plaintiffs followed by permanent transfer order (annexure C)

and duly recorded in Evacuee Property registers; that defendants No.4(i) to

(xxxi) are legal heirs of late Muhammad Haji Ishaq while defendants No.5(i)

to (xciv) are legal heirs of late Haji Ghulam Aulia, late Mohammad Haji

Ishaq predecessor of defendants No.4 claimed to have been owner of

 - { 7 } -

approximately 11,00,000 sq. yards of land in and around Delhi and claimed

to have entered into agreement of exchange in 1951 of his properties in India

with properties which includes ones of Balram Diyaldas and Bhai Partap

Diyaldas and thus purports to include the suit property in respect whereof

the said agreement of exchange expressly notes that out of the premium paid

to government under said indenture of lease 9 installments remained to be

paid besides rent of Rs.15/- per year payable in two half yearly installments;

that outstanding payments were never been made on account of Balram

Diyaldas or any of the defendants No.4 and 5, that title of Balram Diyaldas

itself remains defective and was never completely effected let alone the title

of the defendants No.4 and 5 who claim to derive their title by virtue of

claimed exchange of lands inter alia with Balram Diyaldas; that indenture of

lease in favour of Balram Diyaldas if any stands automatically canceled inter

alia in terms of the Colonization of Government Lands Act 1912 and

Ordinance XV of 1949 and Act No.XII of 1957; that late Haji Ishaq applied for

confirmation of agreement of exchange in 1951/1952 which application was

rejected at all forums from Deputy Custodian Evacuee Properties upto the

West Pakistan High Court however in Letters Patent Appeal No.26/1958

matter was remanded back to Addition Custodian wherein plaintiffs‟

predecessors in title joined the proceedings, raised legal objections to

confirmation of agreement of exchange and finally the Additional Custodian

vide order dated 28.02.1974 again rejected application of Haji Ishaq, the

Custodian of Evacuee Properties Sindh however on Revision Application

No.52/1974 confirmed the agreement of exchange vide order dated

26.07.1974 whereupon predecessors of plaintiffs filed CP Nos.1256 and 1429

of 1974 before this Court against order referred to above which petition was
 - { 8 } -

dismissed vide a common order dated 20.06.1984 followed by filing of civil

appeal Nos.251-K to 255-K of 1986 before Supreme Court which were

dismissed vide order dated 20.12.1990; that it is pointed out that during entire

proceedings noted above no finding has ever been given in respect of the

subject provisional and permanent transfer orders, that subsequent

proceedings in this Court as well before Supreme Court were merely those

pertaining to judicial review of the orders of the Custodian regarding

confirmation of agreement of exchange; that result of litigation with regard

to subject confirmation did not per se invalidate the title conferred upon

plaintiffs, neither did it act as a declaration of title in favour of late Haji

Ishaq, it merely confirmed that an agreement of exchange as claimed had

been entered into and confirmation does not obviate requirements of

Registration Act 1908 for compulsory registration; that on 16.08.2013

plaintiffs learnt about a suit bearing No.300/1988 and immediately plaintiff

No.1 on 23.08.2013 filed application under Order 1 Rule 10 CPC while

plaintiff No.2 is filing application to become party to said suit at the time of

intuition of present suit; with above pleas, plaintiffs prayed inter alia for

declaration that plaintiffs and defendants No.1, 2 and 3 are joint owners of

subject plot and for restraining the defendants from interfering with the

possession of plaintiffs over suit property; and alternatively, without

prejudice to their claims being lawful owners of suit property if, which is

denied, the Court is of the view that plaintiffs alongwith defendants No.1, 2

and 3 are not or shall not remain lawful owners of suit property, then for

declaration that defendants No.6 and 7 are entitled to allotment of an

alternate plot of equivalent value to the suit property in a suitable location, in

 - { 9 } -

favour of the plaintiffs and defendants No.1, 2 and 3 and for issuance of

direction to defendants No.6 and 7 accordingly.

6. The learned counsel for the plaintiffs in respective suits, did not

deny the earlier round of litigation but have forcefully argued that

application for rejection of their plaint is not sustainable; the plaintiffs were

not the parties to the earlier round of litigation; they hold title in their favour

the status whereof was never decided; they are in possession of the suit

properties hence their title and claim of possession thereunder requires proper

and legal adjudication before they are ordered to be parted from their such

title and possession.

7. On the other hand, the counsel for the defendants argued that

the title of the defendants remained under litigation upto the honourable

Supreme Court of Pakistan wherein the predecessors in interest of the

plaintiffs were parties hence instant suits under same title are not

maintainable at all; the acts and omissions of the predecessors interests of the

plaintiffs are binding upon the plaintiffs hence resjudicata debars the present

plaintiffs from filing the instant suits; even otherwise, the instant suits are

prima facie barred by law of limitations.

8. I have heard the respective sides and have also gone

through the available material carefully. Learned counsel for plaintiff in Suit

No.300/1988 and for defendants No.1 to 4, 6 to 9, 11, 22, 23, 25, 26, 27 & 29 in

Suit No.979/2007 has relied upon 1995 SCMR 429; learned counsel for

defendants No.1 to 44 in Suit No.s.796/2007 & 628/2010 and for defendants

No.5(i) to 5(Ixxxviii) in Suit No.1273/2013 has placed reliance on 1985 CLC

 - { 10 } -

395, 1997 MLD 900, 2003 MLD 828, 2006 YLR 1705, 1993 MLD 177, 1994 MLD

2345, PLD 2006 Karachi 621, 1976 SCMR 489, 1995 MLD 1846, 1996 CLC 1027,

2001 YLR 331 and 2003 CLC 200; learned counsel for defendants No.1 to 9 in

Suit No.300/1988 and for intervener in Suit No.979/2007 has referred 1993

MLD 310, PLD 2010 SC 965, 1981 SCMR 878, PLD 2004 SC 178, PLD 2011

Karachi 550, 1982 CLC 68, 1999 MLD 2140, 2002 CLC 1996, 2010 CLC 610,

1996 CLC 1027, 2003 MLD 828, MLR 1996 Civil 600, 1997 MLD 472, 1982 CLC

269, 2002 YLR 2491 Lahore, PLD 2009 Lahore 389, 2014 SCMR 1059, 1993

MLD 86, PLD 1993 Lahore 390 and PLD 1995 Lahore 313; learned counsel for

plaintiff in Suit No.796/2007 has relied upon PLD 2015 SC 166 (Member

Board of Revenue vs. Abdul Majeed), PLD 1972 Lahore 798 (Syed Ali Iqtidar

Shah Dara vs. the Custodian, Evacuee Property, West Pakistan, Lahore), 1986

CLC 433 (Hajra Begum vs. Abdul Rashid).

9. The perusal of the available record with assistance of the learned

counsels for the respective sides has given rise to number of legal propositions

to be attended before responding to the merits of the instant application

which are:-

i) whether the term ‘party’ includes his / her successors;

ii) whether the acts and omissions of predecessor in interests

are binding upon his / her successors;

iii) whether the Civil Court can entertain a suit having direct or
indirect effect upon the judgment of Apex Court;

Though the term ‘party‟ is not defined by Section 2 of the Civil Procedure

Code 1908 however, a reference to Section 10 and 11 of the Civil Procedure

Code 1908 is relevant to understand the term ‘party’ which read as:
 - { 11 } -

'‟10. No Court shall …. in issue in a previously instituted suit

between the same parties, or between parties under whom
they or any of them claim litigating under the same title
where such suit …….. the Supreme Court.”

“11. No Court shall try suit or issue in which the matter

directly and substantially….. 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 ……. and
finally decided by such Court..”
(Underlining is provided for emphasis).

Thus, for purpose of a ‘litigation’, the term ‘party’ shall not be restricted to

legal heir only but shall include ‘privy’. The term ‘privy’ is defined by Black‟s

Law Dictionary (Ninth Edition) as:

‘A person having a legal interest of privity in any action, matter, or

property; a person who is in privity with another.’

Reverting to the second proposition, suffice to say that a successor not only

inherits rights of the deceased but the obligations too. One within status of

successor cannot be a chooser to decide what to own and what to disown. If

the second proposition is attempted, keeping in view the meaning of ‘party’,

the answer to the second proposition would be nothing but a BIG YES

because the right of the later (successor , including legal heir & privy) is subject

to legal maxim ‘sail or sink with former’.

10. Third proposition, needs no much debate and reference to the case of

Nazar & others v. Member (Judicial-II) BOR 2010 SCMR 1429, would be

sufficient to satisfy it wherein it is held that:-

„It is admitted fact that controversy in question has been settled

between the parties up to this Court. Judgment of this Court is
binding on each and every organ of the State by virtue of
Articles 189 and 190 of the Constitution. It is pertinent to
mention here that petitioner had not brought this fact to the
tribunals below. This fact brings the case of the petitioners that
petitioners‟ predecessor in interest had not filed application in
 - { 12 } -

the review side with clean hands. Even otherwise it is settled that
once the matter has been finally adjudicated by the Apex Court, then
it is binding between the parties as law laid down by this Court in
Pir Bakhsh’s case PLD 1987 SC 145. It is settled law that judgment
of the civil Court has to give due weight as compared to the order of
the revenue authorities. It is also a settled that judgment of the Apex
Court cannot be overridden or nullified by any executive order, a rule
or a dispensation short of legislative will as law laid down by this
Court in various pronouncement.

It is also settled proposition of law that Courts would not allow

a judgment of the Supreme Court to be challenged even on a
ground which was not taken before the Supreme Court. See
State v. Mujibur Rehman Shami & 2 others PLD 1973 Lahore 1.
The question of law as been settled down by this Court after
considering provisions of Section 11 of CPC and Articles 189
and 201 of the Constitution that civil Court or any other
authority had no jurisdiction whatsoever to entertain any
application or any civil suit qua the subject matter which had
already been set at right by the Supreme Court as per law in
the following judgments:

i) Abdul Majid‟s case PLD 1992 SC 146.

ii) Murad Khan‟s case PLD 1983 SC 82.
(Underlining is provided for emphasis).

The above well settled principles leave nothing ambiguous that no

court is legally competent to entertain a suit (lis) which shall have effect

directly or indirectly upon the decision of honourable Supreme Court of

Pakistan in respect of same subject matter. I can also add that the privy of a

party of earlier round of litigation shall not come to seek re-declaration of

their status and title but shall have to sail and sink with consequences of acts

& omission of their predecessor-in-interest.

11. Now, I shall proceed further to examine the case in hand on said

touch-stone. Let‟s have a look at the legal status / character of the present

plaintiffs with reference to their own pleadings [plaint (s)]:-

 - { 13 } -

„SUIT NO.1273 OF 2013‟

‘The plaintiffs derive their right from Ms. Khurshid

Hashmi, Sheikh Muhammad Yasin and International
Trading Agency’

SUIT NO.796 OF 2007

‘The plaintiffs derive their right from Abdul Rehman‟

SUIT NO.628 of 2010

‘The plaintiff derives her right from Sheikh Nasir Ahmed

Seoni‟ & Sheikh Zaheer Ahmed Seoni’

SUIT NO.979 OF 2007

‘The plaintiffs derive their right from „Mst. Noor Jehan‟

12. Now, let‟s see whether said predecessors of above plaintiffs were

parties to earlier round of litigation? which undeniably went upto the

Honourable Supreme Court of Pakistan.

13. The perusal of the record of earlier round of litigation would show

that the above persons (predecessors of plaintiffs in said suits) had active

knowledge of that litigation and even remained ‘parties’ in such litigation.

This fact though not properly brought into light by referring it in the plaints in

violation of the Order VI Rule 2 CPC, however, none of the plaintiffs has

denied the fact that their predecessors were ‘parties’ in said round of litigation.

For a satisfactory response, it would be proper to refer the available material

to examine the legal character of present plaintiff which shall stand sharpas:

„SUIT NO.1273 OF 2013‟

‘The predecessors of plaintiffs of this suit i.e Ms. Khurshid

Hashmi, Sheikh Muhammad Yasin and International
Trading Agencywere not only parties before Custodian
 - { 14 } -

authority but Revision Appln.No.54/1974 was filed by Ms.

Khurshid Hashim; while Sh. Muhammad Yasin &
International Trading agency filed Rev. Appln.No.60 of
1974 and even continued upto Honourable Supreme Court of
Pakistan;

SUIT NO.796 OF 2007

‘The plaintiffs claim under Abdul Rehman who was a party

before Custodian of Evacuee Property hence was in active
knowledge and notice of the said litigation but not
continued pressing his rights, interests and title.

SUIT NO.628 of 2010

‘The plaintiff claims under Sheikh Nasir Ahmed Seoni‟ &

Sheikh Zaheer Ahmed Seoni , who were party before
Custodian of Evacueehence was in active knowledge and
notice of the said litigation but not continued pressing
his rights, interests and title.

SUIT NO.979 OF 2007

‘The plaintiffs claim under „Mst. Noor Jehan‟. She was not
only party before Custodian Evacuee Property but also
filed Rev. No.53/1974 and even continued upto
Honourable Supreme Court of Pakistan.

Worth to add here that the earlier round of litigation is a matter of record and

fact hence even if not brought into plaints properly yet the notice of such

matter of record & fact can well be examined even while exercising the

jurisdiction Under Order VII Rule 11 C.P.C, particularly when status of earlier

round of litigation is not denied by counsel for plaintiffs.

14. Now, I shall attend to the arguments, which have been raised by the

counsel for the plaintiff(s) in order to seek an exception to answers to above

proposition(s).
 - { 15 } -

First was the case that title of the predecessors and that of their privy

still holds the field and has not been adjudged otherwise. An answer to this

shall need no much skill but shall stand satisfied with reference to the order

dated 20.6.1984, passed by this Court in CP No.1256 of 1974 which is referred

hereunder:-

“Mr. Akhtar Mahmood the learned counsel for the

petitioner has stated that if the confirmation of exchange does
not affect the right of the petitioner as the owner of the
property, then he has no dispute with the Custodian‟s
impugned order. Mr. Mohammad Sharif and Mr. Iqbal Ahmed
the learned counsel for the private respondents have stated
that if the exchange is confirmed these respondents will not
claim the property, but will seek their remedy for realization of
compensation in terms of section 8(4) from the Government.
The statement make the matter simple and the entire exercise
of the private respondent is for claiming compensation. In
any event, even on the confirmation of the exchange deed the
private respondents can not claim the property as it stands
acquired and vests in the Central Government. As a
consequence of acquisition only compensation is to be paid to
the owner or the charge holder.
Although the learned counsel for the parties restricted
their arguments to the payment of compensation which
depended on the confirmation of the exchange, I had to keep
this matter reserved till such time other connected petitions
dealing with exchange were argued. As I have maintained the
order of Custodian confirming the deed of exchange petition
No.1176/74 is dismissed subject to the statement and consent
of the private respondents that they will have no right in the
properties in dispute )in petition No.1176/74) and on the basis
of the Custodian‟s impugned order they would only claim
compensation which shall be decided by the appropriate
authority according to law.
In the result, petitions No.1191/74, 1256/74, 1257/74,
1429/74, 1287/74 and 1176/74 are dismissed with no order as
to costs.”
(Underlining is provided for emphasis).

From the above, it becomes clear that sine the title of the predecessors of the

plaintiffs was not likely to cause any harm or prejudice to the succeeding

party of earlier round of litigation hence it was not necessary for them to
 - { 16 } -

seek adjudication of such title documents within meaning of Section 39 of the

Specific Relief Act, 1877 which requires one to seek adjudication when leaving

of an instrument is likely to cause serious injury which was / is not the case

when their rights prima facie confined to compensation with reference to the

Custodian‟s impugned order (as was in said petition).

15. Second argument is with reference to failure of serving of mandatory

notice upon predecessor in interest of the plaintiff as was required under

section 43 of the Pakistan (Administration of Evacuee Property Act, 1957) hence

order passed even by Honourable Supreme Court in earlier round of

litigation is not binding upon the present plaintiffs. I find no substance in

such plea because non-raising of said plea in earlier round of the litigation

shall, in all senses, cut both sides. The benefit of said failure, if any, was

available for the predecessor in interest of the plaintiffs and if was left /

abandoned by them (predecessor in interest) then the present plaintiffs,

being privy, cannot take any exception thereof. If such plea is allowed to hold

the field, it may result in giving a room for every single round of litigation to

be reopened subsequently through fresh suit which, in any circumstance,

cannot be stamped. The order of the honourable Supreme Court, passed in

Civil Appeal No.251-K to 255-K of 1986 would reflect that several arguments

were raised by predecessor in interest of the plaintiffs , as it shall stand evident

from reference to operative part thereof:-

“17. It may be mentioned that in support of the appeal

several arguments were addressed by the learned counsel for
the appellants and these were almost the same as were
submitted before the High Court as well as before the
Custodian of Evacuee Property. It is….
It was next contended before the High Court on behalf
of the appellants that the transaction of exchange was made at
Delhi by a Muslim with hindu in respect of the property owned
by him in Pakistan who had migrated to India, and therefore, in
 - { 17 } -

view of he prohibition under the law, the application (of Haji

M. Ishaq) could not be granted. In this connection reference….

The next plea raised on behalf of the appellants was that

since the deed of exchange was neither executed nor
registered, it could not be confirmed. This plea was also
rejected …...
Yet another plea raised on behalf of the appellants was
that the order of the Custodian dated 21.11.1954 passed in
exercise of suo moto jurisdiction was illegal and without
jurisdiction and therefore all the subsequent proceedings were
also without lawful authority.

The next submission made by the learned counsel for the

appellants before the High Court was that “no income tax
certificate was filed by the respondents therefore, the
exchange could not be confirmed.”
(Emphasis supplied)

The above reference shall make it cleat that all available grounds were taken

by the predecessor in interest of the plaintiffs before this Court and even before

honourable Supreme Court of Pakistan which at the end of the day responded

by honourable Supreme Court of Pakistan:

“24. After having heard the learned counsels for the parties,
we find that all the pleas before us have already been dealt
with and rejected by the High Court.
There is, therefore no justification whatsoever for interference
by this Court. These appeals are accordingly dismissed, but
parties are leave to bear their own costs.”

Therefore, I am not inclined to accept the plea of plaintiffs that non-service of

the required notice be taken as a ground to start litigation afresh which has

attained finality before the honourable Supreme Court of Pakistan.

16. Lastly , the plaintiffs seek exception of application of the judgment of

honourable Supreme Court of Pakistan while referring it as per incuriam and

has referred to the case of Member Board of Revenue v. Abdul Majeed (PLD
 - { 18 } -

2015 SC 166). This is also with reference to notice, required by Section 43 of

Pakistan (Administration of Evacuee Property) Act, 1957, therefore, it would

be to have a direct reference to said proviso which reads as:

’43. Appeal, revision and review. (1) Any person aggrieved

by a final order under section 20 , section 22 or section 23
passed by a Deputy or Assistant Custodian may prefer
an appeal to the Custodian.
(2)…
(3)…
(4)…
Provided that the Custodian shall not pass an Order
revising or modifying any order affecting any person
without giving such person and the Rehabilitation
Authority an opportunity of being heard.

That provision does place the Custodian under a mandatory obligation to

provide an opportunity of hearing but this plea is not available before the

present plaintiffs because the suo-moto exercise by Custodian was not only

raised before High Court but also before Honourable Supreme Court of

Pakistan which shall stand clear from operative part of the order of

Honourable Supreme Court which is:

„This plea was rejected by the High Court with reference

to the provision of Ordinance as well as case law in these
words:-

“It is thus clear that the Custodian has been vested with
the widest possible powers of Revision and Review and he
could himself initiated proceedings for suo moto revision if any
fact material for determination of a case comes to his notice. In
the present case although the Additional Custodian had
dismissed the application which order was confirmed by the
Custodian as on the material before the Additional Custodian
no other order could be passed, in view of the notification the
learned Custodian perhaps thought that the case required
reconsideration as for an exchange in respect of agricultural
property in India there did not seem to be any prohibition.
There is no bar in law that after exercising revisional power
the Custodian cannot exercise his suo moto revisional
jurisdiction.”‟
 - { 19 } -

From above, it is clear that honourable Supreme Court stamped such

exercise of revisional power by Custodian as legal. Besides, the purpose of

Section 43 was to give notice (knowledge) and the predecessor in interest of

plaintiffs did acquire notice; challenged the legality of the order before all

available legal fora. Not only this, but they (predecessor in interests) did

confine their rights to compensation hence this plea is also of no help for the

plaintiffs to seek an exception to finality of litigation of earlier round which

from all legal senses bind the plaintiffs.

17. The meaning of per incurium has been insisted by counsel for plaintiffs

while referring the para-17 of the case of Member Board of Revenue (supra)

which reads as:

17. The reasons for the erroneous direction dated 20-1-1998

by the learned High Court is that the appellants failed to assist
the learned Court on the factual and legal points in the case.
Their parawise comments were not filed and the learned Court
was kept in the dark about the appellants' stand in the case
during its pendency for over four years. Accordingly, the
direction dated 20-1-1998 by the learned High Court was
issued on a mistaken view of the law. Such a direction is
treated as given per incurium. The deficiency causing a per
incurium judgment and the legal effect thereof has been
explained by this Court in Sindh High Court Bar Association v.
Federation of Pakistan (PLD 2009 SC 879) as under:

"(38) What is meant by giving a decision per incurium is giving a

decision when a case or a statute has not been brought to
the attention of the court and they have given the decision
in ignorance or forgetfulness of the existence of that case or
that statute or forgetfulness of some inconsistent statutory
provision or of some authority binding on the court, so that
in such cases some part of the decision or some step in the
reasoning on which it was based was on that account
demonstrably wrong, so that in such like cases, some part of
the decision, or some step in the reasoning on which it is
based, is found, on that account to be demenstrably wrong.
See Nirmal Jeet Kaur's case (2004 SCC 558 at 565 para 21,
Cassell and Co. Ltd.'s case (LR 1972 AC 1027 at 1107, 1113,
1131), Watson's case (AELR 1947 (2) 193 at 196), Morelle
 - { 20 } -

Ltd.'s case (LR 1955 QB 379 at 380), Elmer Ltd.'s case

(Weekly Law Reports 1988 (3) 867 at 875 and 878, Bristol
Aeroplane Co.'s case (AELR 1944 (2) 293 at page 294) and
Morelle Ltd.'s case (AELR 1955 (1) 708).”

From above, it is clear that before seeking a judgment per incuruim one is

required to:

i) a case or a statute has not been brought to the

attention of the court; and
ii) the decision is result of ignorance or forgetfulness of
the existence of that case or that statute; or
iii) forgetfulness of some inconsistent statutory
provision or of some authority binding on the court,

Let‟s examine instant case with reference to above touch-stone . It is not the

claim of the present plaintiffs that a case or statute was not brought to the

attention of the Court but plea is the departure from requirement of providing

an opportunity within meaning of Section 43 of Act (jurisdiction of Custodian

in appeal, revision and review). Since, in earlier round of litigation the order of

Custodian was questioned upto Honourable Supreme Court and in the last

the honourable Supreme Court stamped such exercise of revisional power by

Custodian as legal with reference to sou-moto revisional power of the

Custodian which, undeniably, is dealt in Section 43 of the Act, 1957 hence it

legally cannot be presumed by this Court that the High Court and

Honourable Supreme Court while stamping such revisional exercise by

Custodian did not know four corners of ‘Section‟ under discussion before it.

Therefore, I am of the clear view that meaning of the per incuruim does not fit

in the instant case hence is not applicable. Non-service of notice may , at the

most, be termed as a ‘defect’ which even lost its substance while predecessors

of the plaintiffs with active knowledge challenged it. Even otherwise, a ‘defect’
 - { 21 } -

in procedure shall not be sufficient alone to out-root a fair exercise by an

authority. To shoulder such view the guidance is taken from case of Member

Board of Revenue (supra) referred by counsel for the plaintiffs, which reads as:

“24. The relevance of the said rule of fostering justice in the

context of the present case is that quite apart from the legal
validity of an action taken by an executive authority, its
fairness and substantive propriety, deserve greater attention
in the exercise of judicial review by the High Court. It goes
without saying that the available evacuee property with the
Notified Officer is a public property entrusted to the
Government for distribution to rightful claimants under the
law. ………Therefore, although the order dated 31.5.2008
passed by the MBR and CSC suffers from a defect , yet more
importantly, it achieves a just and fair result in relation to the
disposal of a public asset, namely, available evacuee property.”
(Underlining is provided for emphasis)

18. Thus, in result of the above discussion, I am of the clear and firm view

that the plaint(s) filed by plaintiffs are not maintainable in law hence

application(s) under Order VII Rule 11 C.P.C are allowed. As a result

whereof, plaint in Suit No.1273 of 2013, plaint in Suit No.796 of 2007, plaint

in Suit No.628 of 2010 and plaint in Suit No.979 of 2007 are hereby rejected

under Order VII rule 11 C.P.C.

Imran/PA JUDGE