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Civil Petition No. 684 of 1983, decided on 3rd November, 1 35.
(On appeal from the judgment, dated 6‑2‑1983 of the Lahore High Court, Lahore in Civil Revision No. 175 of 1983) .
‑‑‑Art. 185(3)‑‑Leave to appeal, grant of‑‑Re‑agitation of questions already decided by superior Courts not permissible by express provisions of Constitution itself‑‑Petition for leave to appeal being devoid of merits, dismissed with costs.
Ismail Brothers v. Keval Ram P L D 1981 S C 545 distinguished.
Abdul Majid and others v. Abdul Ghafoor khan and others PLD SC 146 rel.
‑‑‑ Rule of ethic‑‑Contumacy‑‑Matter already adjudicated upon by High Court and Supreme Court‑‑Attempt to resuscitate same matter through a suit and considered highly regrettable which could not be countenanced.
Ch. Khalil‑ ur‑Rehman, Senior Advocate Supreme Court and Mehmood A. Qureshi, Advocate‑on‑Record (absent) for Petitioner.
Sh. Zahurul Haq, Senior Advocate Supreme Court and Tanvir Ahmad, Advocate‑on‑Record (absent) for Respondent No. 1.
Nemo for Respondents Nos. 2 and 3.
Date of hearing: 3rd November, 1985.
‑‑The Settlement Department transferred the lower portion of an evacuee property to the petitioner but respondent No. 1 was transferred its upper portion. The petitioner made a complaint to the Chief Settlement Commissioner that the respondent No. 1 had utilised a forged order, dated 10‑12‑1961 passed by Mr. Misbah‑ul‑Haq, Deputy Claims Commissioner to establish that he was a claimant and that the compensation book issued in his favour on its basis was bogus. The Chief Settlement Commissioner referred this question for scrutiny to a Claims Commissioner. Mr. Saeed‑uz‑Zaman, a Claims Commissioner, by his order, dated 22‑10‑1963, upheld the plea of the petitioner and confiscated the portion of the house transferred in favour of the respondent and cancelled the transfer thereof in his favour under section 14(2) of the Registration of Claims (Displaced Persons) Act, 1956. The said portion, thereafter, was transferred on 15‑5‑1965 to the petitioner under the orders of the Chief Settlement Commissioner.
Feeling aggrieved, the respondent No. 1 challenged the above orders through a writ petition before the Lahore High Court, which held that the action taken by the Claims Commissioner would be valid only if it was covered by the provisions of section 14 of the Claims Act, which read as under:‑
"S. 14‑‑(1) Any person who‑‑
(a) submits in respect of his claim under this Act any information 'which he knows to be false or does not believe to be true, or
(b) fraudulently conceals or misrepresents the facts for the purpose of making a claim which he knows to be false either wholly or in part, or
(c) submits a claim in respect of the same property to more than one Registration Officer, shall be punishable with an imprisonment for a term which may extend to three years or with fine or both.
(2) The Claims Commissioner or any other person authorised by the Central Government in this behalf may order the forfeiture of any allotment or other benefit obtained as a result of any act which is punishable as an offence in this section".
Reference was also made to section 16 of the Act which said:‑
"S. 16.‑‑ No Court should take cognizance of any offence punishable under this Act save upon complaint in writing made by an officer authorised by the Central Government by general or special order in this behalf."
The High Court was of the opinion that:‑‑
"the words "shall be punishable with an imprisonment for a term which may extend to three years or with fine or both" in subsection (1) of section 14 means that he should be punished accordingly if found guilty by a competent Court for the offences as mentioned in subsection (1)(a)(b) and (c) of section 14. If the person concerned had been found guilty by the competent Court under subsection (1) the Claims Commissioner can take an action against him under subsection (2) of section 14 of ordering forfeiture of any allotment or other benefit obtained as result of any act which is punishable as an offence under this section. Section 14(1) and section 16 of the Act, according to the High Court were to be read together for this purpose. If this was done, the result was that the Claims Commissioner could not award punishment as provided in subsection (2) of section 14. This can be awarded only by a competent Court after a person has been found guilty of the offences mentioned in this provisions."
The learned Judge in the High Court deciding this matter further held that:‑‑
"the Claims Commissioner, if after scrutinizing the order verifying the claim or the Compensation Book issued on its basis came to the conclusion that the same was obtained through fraud or misrepresentation ‑then he could lodge a complaint under section 16 of the Act with the Court for the purpose of taking necessary action against him. If that person is found guilty, as mentioned above the Claims Commissioner can take action under subsection (2) of section 14 of the Act. Two kinds of penalties have been provided by section 14 of the Act. One has to be imposed ‑by the Court trying the person concerned for the offences mentioned in subsection (1) of section 14 by way of imprisonment or fine or both. If he is found guilty and the other can be imposed by the Claims Commissioner by way of forfeiture of any allotment or other benefits obtained by that person in case he is found guilty by the competent Court. Awarding of punishment under subsection (1) of section 14 is to be read in the context of the offences mentioned in that subsection implying thereby that he can be imprisoned or fined, if found guilty. Subsection (2) of section 14 provides the second kind of penalty which can be imposed only in case the person concerned has been found guilty".
The learned Judge then went on to observe that in the present case nothing had been brought on the record to show that‑ the action taken by the Claims Commissioner under subsection (2) of section 14 was taken after the respondent herein was found guilty for the offences mentioned in subsection (1) of section 14. On the other hand, the fact was that he was proceeded against in a criminal Court of law for offences under sections 468, 471 and 420, P.P. C. but was acquitted. In these circumstances, the High Court found that the impugned order passed by the Claims Commissioner, dated 22‑10‑1963 could not be maintained and all the subsequent orders passed by the Settlement authorities on its basis were also not sustainable in law. Accordingly, the writ petition was accepted and the impugned order, dated 22‑10‑1963 passed by respondent No. 1 as well as the proceedings taken by respondents Nos. 2 and 3 on the basis of that order were quashed as being illegal, without jurisdiction and of no legal effect.
The petitioner, thereafter, moved this Court to challenge the above order of the High Court. This Court took the view that even if the argument of the petitioner that the Claims Commissioner, could, under section 14(2) of the Claims Act, order forfeiture of any allotment or other benefit obtained as a result of any action which has been made punishable as an offence under the section; this could be done only if the Claims Commissioner found that the order had been obtained by practising fraud or misrepresentation. This Court, therefore, in the first instance, took up the question whether the order of the Claims Commissioner, dated 22‑10‑1963 fulfilled this condition and on this question observed:‑‑
We have, therefore, examined the record and find that it appears to have been assumed that the respondent prepared a forged verification order on 10‑2‑1961 from the Court of Mr. Misbah‑ul -Haq in respect of two units of residential property abandoned in East Punjab, which was valued at Rs.1,12,404. The basis of this assumption is that the above claim has been verified with reference to Claim Registration No. 3984/T, whereas this Claim Registration No. was in fact filed by one Muhammad Ali son of Umaid Ali, resident of Zafarwal, District Sialkot, and his claim was verified for Rs.15,810. The Claims Commissioner has observed that on the basis of the aforesaid bogus verification order respondent No. 4 got a Compensation Book prepared in his name and also managed to get the transfer of a portion of Property No. S. III 11.S. 115, Paisa Akhbar, Anarkali, Lahore, in his favour.
A perusal of the original record shows that the claim verified in favour of Atta Muhammad was on the basis of an order passed by Mr. Misbah‑ul‑Haq; Deputy Claims Commissioner in which the details of the property abandoned by the respondent and value of each unit is duly mentioned. However, in the order of the Claims Commissioner, dated 22‑10‑1963 there is no discussion or examination of the question whether the respondent had or had not indeed abandoned the above items of property in East Punjab and merely because the same Claim Registration No. has been assigned to two claims would not necessarily show that the relevant verification is false and bogus."
The conclusion was expressed thus:‑
"In the absence of a well‑considered finding to the effect that the claim made was in fact false and, therefore, he had committed an act which was punishable as an offence under section 14 of the Act the punishment contemplated in subsection (2) of section 14 could have been imposed. A finding to this effect necessary before the forfeiture of any allotment or other benefit could be ordered. The order of the Claims Commissioner, dated 22‑10‑1963 is completely silent in this respect and the final conclusion reached is not expressed to be based on the consideration of any evidence, but or, assumption and conjectures. The writ petition filed by the respondent was liable to succeed on the short ground that the order of the Claims Commissioner was based on "no evidence".
The judgment of the High Court accepting the writ petition of the respondent was, therefore, upheld on the ground that as the order of the Claims Commissioner does not establish that the respondent had committed such an act which would be punishable as an offence under this section the action of the High Court was correct and the appeal filed by the petitioner was, therefore, dismissed.
The petitioner, thereupon, filed a review petition but this too was dismissed. The matter should have apparently now come to an end. But this, however, was not to be.
The petitioner now brought a suit in the Court of a Civil Judge First Class, Lahore, for a declaration that the order of the Deputy Claims Commissioner (Mr. Misbah‑ul‑Haq), dated 10‑2‑1961 is a forged document and for permanent injunction restraining the respondent from acting in pursuance of a transfer order passed by the Settlement authorities in his favour. The learned Civil Judge held, vide his order, dated 11‑6‑1981 "that the matter in dispute has already been resolved by the higher Courts. Therefore, there is a clear bar for the suit of the plaintiff. Moreover, I further agree that the plaintiff has got no locus standi or case of action to challenge the transfer order made in favour of the defendant No. 1. I, therefore, proceed to reject the plaint under Order VII, Rule 11, C.P.C."
The petitioner went up in appeal against this order, which was dismissed by the learned Additional District Judge, observing:‑‑
"A careful perusal of the said orders shows that right from the very beginning the plea of the appellant was that claim verified in favour of Ata Muhammad, respondent No. 1 was not genuine and that the compensation book issued in his favour in pursuance thereof is a bogus one. From the orders of the superior Courts it is evident that the decision was not merely on technical grounds but also on the merits of the case; so the appellant was not competent to re‑agitate the same before the Civil Court which cannot by‑pass or over‑ride the orders of the High Court and the Supreme Court competently made on the same subject between the same parties. In the circumstances, the learned Civil Judge had inherent jurisdiction to reject the plaint. It is unfortunate that the appellant is not accepting the verdict of the superior Courts regarding the disputed property and his only aims are prolonging the litigation just to avoid compliance of those orders."
Undeterred, he then approached the High Court in revision. The learned Judge in the High Court also found no merit therein. He observed: ‑
"The declaratory decree prayed for by the petitioner seeks the same relief which has been refused by the High Court and then by the Supreme Court. The learned counsel, however, argues that the trial Court has not given any finding of fact and, therefore, the matter is still open for trial. I am afraid, there is no force in this argument because the fact remains that the order of the Claims Commissioner that the document relied on by the respondent No. 1 was a fabricated, has been declared to be of no legal effect. What persuaded the superior Courts in coming to this conclusion is not important because civil Court cannot now sit in judgment over the findings of the Supreme Court. The petitioner, therefore, has no cause of action which he can agitate by way of a suit".
He has now come up to this Court seeking leave to appeal against these orders.
In support of his prayer the learned counsel submits that as respondent had committed a fraud he could re‑agitate the matter before a civil Court and relied upon this Courts judgment in the case of Ismail Brothers v. Keval Ram P L D 1981 S C 545. The said case is not relevant in the present context and the rule laid down in the subsequent decision of this Court in Abdul Majid and others v. Abdul Ghaffoor Khan and others P L D 1982 rS C 146 is attracted here that any attempt to re‑agitate the questions already decided by the superior Courts is not permissible by the express provisions of the Constitution itself .
In the present case, the plea of fraud/ fabrication etc. was considered by this Court and it found that said plea was not established. The respondent had been tried by a Criminal Court on these allegations and acquitted. The attempt to resuscitate the same matter through a suit is highly regrettable and cannot be countenanced. The Courts below had rightly dismissed the suit and the order of the learned Additional District Judge and the High Court rejecting the appeal and revision are manifestly correct.
This petition, therefore, has no force. Since the respondent has appeared to oppose it, by filing a Caveat, he must also have his costs.
The petition is dismissed with costs.
M. I. Petition dismissed.
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