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Civil Petition for Special Leave to Appeal No. 25 of 1971, decided on 27th May 1971.

(On appeal from judgment and order of the Lahore High Court, Baghdad‑ul‑Jadid, dated the 16th of November 1970, in R. S. A. No. 20 of 1970/BWP).

Constitution of Pakistan (1962),

Art. 98‑ Writ‑Res judicatai principle of‑Applicable in writ proceedings‑Civil Procedure Code (V of 1908), S. 11.

Even if section 11 of the Civil Procedure Code may not in terms apply in support of the plea of res judicata, in a writ proceeding it can hardly be disputed that the general principles of res judicata are clearly attracted to debar the petitioner from re‑agitating the matter afresh by a civil suit, which had been put at rest by a judg ment of the High Court passed in writ jurisdiction. The civil Court could not by‑pass or override the orders of the High Court compe tently made in another jurisdiction on the same subject between the same parties.

Sh. Abdur Rasheed, Senior Advocate Supreme Court (F. M. Anwari, Advocate Supreme Court with him) instructed by Sh. Abdul Karim, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Dates of hearing : 1st, 2nd April and 27th May 1971.

SAJJAD AHMAD, J.‑

This petition for special leave is directed against the decision of a learned Single Judge of the Lahore High Court made in second appeal, whereby in concurrence with the judgment of the lower appellate Court, the petitioner's suit, which was decreed by the trial Judge, was dismissed. The aforesaid suit was filed by the petitioner in the Court of the Administrative Civil Judge, Bahawalpur, in challenge of the order of the Commissioner, Bahawalpur Division, dated the 28th of September 1957, by which his services as Chief Sanitary Inspector, Bahawalpur were terminat ed. This order of his dismissal from service was made pursuant to an inquiry conducted against him on the charge that he had, as Secretary of the Municipal Committee, Bahawalnagar, mis appropriated a sum of Rs. 196 which was received by him from a tenant of the Committee. The petitioner had preferred a representation to the Provincial Government against the order of the Commissioner; which was rejected on the 31st October 1958, and the petitioner was informed that the Government did not find any justification to revise the order of the Commissioner. Thereafter, before filing his suit, the petitioner lodged a writ petition in the High Court of West Pakistan, Lahore (Writ Petition No. 6 of 1959), wherein he attacked the order of the Commissioner as being without lawful authority, and sought a writ of certiorari for quashment of the order of the Commissioner, and a writ of mandamus for his restoration to the office held by him prior to his dismissal from service. This writ petition was dismissed by a Division Bench of the High Court on the 28th of November 1960, which held that the petitioner's dismissal was covered by section 41 of the Punjab Municipal Act, which provided that the Provincial Government may direct the removal of a Municipal employee if be is found negligent in the perform ance of his, duties. The Commissioner, in removing the petitioner from service, had considered that the case fell under section 39 of the Punjab Municipal Act, which empowered the Municipal Committee to employ or dismiss its employees. It was pointed out that the Commissioner had misconceived the legal position by treating the petitioner's case as one falling under section 39 of the Municipal Act, but this defect in the Commissioner's order, which was one of form only, was cured by the subsequent order of the Provincial Government rejecting the petitioner's representa tion and affirming the order of the Commissioner after considering all the pertinent facts of the case.

This order of the High Court passed in writ jurisdiction was pleaded by the respondent as a bar to the petitioner's suit on principles of res judicata. This plea did not find favour with the trial Judge, who decreed the petitioner's suit, but it has been upheld by the lower appellate Court and the High Court, which, as already stated above, have dismissed the petitioner's suit on that basis.

It was argued by the learned counsel for the petitioner that the order of the High Court made in writ jurisdiction did not oust the jurisdiction of, the civil Court to determine the legality of the order of the petitioner's dismissal from service, as made by the respondent. We do not agree with this contention. The principal point on which the petitioner had attacked the Commis sioner's order in his civil suit was also directly and substantially raised by him earlier in his writ petition in the High Court for the same reliefs. The High Court had finally settled that issue between the parties by observing that the services of the petitioner had been competently terminated by the Government, and that the defect in the Commissioner's order was covered by the order sub sequently made by the Provincial Government. Even if section 11 of the Civil Procedure Code may not in terms apply in support of the plea of res judicata, it can hardly be disputed that the general principles of res judicata were clearly attracted to debar the petitioner 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. The civil Court could not have by‑passed or overridden the orders of the High Court competently made in another jurisdiction on the same subject between the same parties.

We see no substance in this petition, which is dismissed.

Leave refused.

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