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Petitioner: Malik GUL HASSAN & CO. VS Respondent: FEDERATION OF PAKISTAN through the Secretary, JUDGMENT
Court Name: Balochistan High Court Judge(s): Javaid Iqbal, Amir-ul-Mulk Mengal Title:Malik GUL HASSAN & CO. vs FEDERATION OF PAKISTAN through the Secretary,
JUDGMENT
Reported As: 1995 CLC 1662 Result: Petition dismissed Judgment JUDGMENT ' AMIR-UL-MULK MENGAL, J.---By this judgment we propose to dispose of C.P. No,50 of 1992 filed by Malik Gul Hassan and Company praying inter alia as under:-- "It is, therefore, prayed that this Hon'ble Court may be pleased to call the record of the proceedings from the respondents Nos.1--7 and after hearing the parties be further pleased-- (i) to declare that the aforesaid Amending Ordinance I of 1991, Annexure (`X/C' hereto) and the further Ordinance IX of 1991 (Annexure X/F hereto) namely the Balochistan Medical College (Board of Governors) (Amendment) Ordinance, 1991, Ordinances. I and IX of 1991 is ultra vires, unconstitutional and void; (ii) to declare and hold that the order(s), dated 26-12-1990 (of the respondents Nos.5 and 6 and/or the Superintending Engineer, Executive Engineers (EPWD) are and each of them, cancelling/rescinding the petitioners' contracts, to be without lawful authority, illegal and of no legal effect; (iii) that the respondents Nos.5--6, and all persons claiming through or under them be restrained by appropriate orders from interfering with the works of the petitioners, or declaring that works undertaken/completed by the said respondents Nos.8--10, or any other contractor to whom the works may now or hereafter be given, shall be deemed to be undertaken/completed by the petitioners and the consequential reliefs be granted to the petitioners; (iv) that the award of contracts to the respondents Nos.8 to 10 i,e, to each of them, be declared to be without lawful effect, the same being continuation of the petitioners' work/contracts;
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(v) that the respondents and all persons claiming through or under them be restrained from depriving the petitioners of their property, assets, machinery or divesting them in any manner; (vi) that the respondents be restrained from calling any fresh Tender or awarding balance works or part thereof in respect of all works of Bolan Medical College Complex, Quetta except the petitioners; (vii) that costs be awarded to the petitioners; and (viii) that such other/further/additional relief or reliefs, writ or writs, order or orders be also granted, as may appear to this Hon'ble Court to be proper or otherwise appropriate in the facts and circumstances of the case." ' However, after this, an amended petition was filed with slight changes in the prayer clause as follows:-- "It is, therefore, prayed that this Hon'ble Court may be pleased to call the record of the proceedings from the respondents Nos.1--7 and after hearing the parties be further pleased-- (i) to declare that the amending Ordinance, namely the Balochistan Medical College (Board of Governors) (Amendment) Ordinance, 1991, Ordinance. I of 1991 and the Balochistan Medical College (Board of Governors) (Amendment) Ordinance, 1992, Ordinance II of 1992, arc and each is ultra vires, unconstitutional and void; (ii) to declare and hold that the order(s), dated 26-12-1990 (of the respondents Nos.5-6 and/or the Superintending Engineer (PPWD) are and each of them, cancelling/rescinding the petitioners' contracts, to be without lawful authority, illegal and of no legal effect; (iii) that the respondents 5-6, and all persons claiming through or under them, be restrained by appropriate orders from interfering with the works of the petitioners, or declaring that works undertaken/completed by the said respondents Nos.8--10, or any other contractor to whom the works may now or hereafter be given, shall be deemed to be undertaken/completed by the petitioners and the consequential reliefs be granted to the petitioners; (iv) that the award of contracts to the respondents Nos.8 to 10 i,e, to each of them, be declared to be without lawful effect, the same being continuation of the petitioners' works/contracts; (v) that the respondents and all persons claiming through or under them be restrained from depriving the petitioners of their property, assets, machinery or divesting them in any manner; (vi) that costs be awarded to the petitioners; and (vii) that such other/further/additional relief or reliefs, writ or writs, order or orders be also granted, as may appear to this Hon'ble Court to be proper or otherwise appropriate in the facts and circumstances of the case." ' It is pertinent to note that the petitioner has also filed several civil miscellaneous applications, many of which were ordered to be disposed of alongwith the main petition. Hence all the civil miscellaneous applications filed, upon which no orders have been passed, shall be disposed of in this judgment. ' Concisely, the facts of the case are that the petitioners is a registered Firm. The Federal Government decided to set up in Balochistan a Medical College/Hospital in the name and style of "Bolan Medical College". For the said purpose different contracts were entered into between the President of Pakistan through Director-General Health, Ministry of Health, Government of Pakistan and the petitioner's Firm, the detail of which has been given in the petition which need not be repeated in the judgment. Thereafter, with the passage of time these agreements were renewed. It is the case of the petitioners that due to many reasons, such as enquiry by Martial Law, paucity of funds, hard weather etc. The petitioner's firm could not complete the assigned work within stipulated period. However, according to the petitioners the respondents expressly acknowledged satisfaction and petitioner's firm was given further contracts.
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' It is pertinent to mention here that on 26-12-1990 the Secretary Implementation on behalf- of the Works Committee addressed a Letter No,I.D.ROH(1)/2/90 dated 26-12-1990 to the Superintending. Engineer, Government of Pakistan, Pakistan P.W.D. Quetta to the following effect:-- "As it has been decided by the Works Committee that Pakistan PWD will terminate all the contracts of the present contractor because he has failed to fulfil the contractual obligations. The minutes of the meeting will be issued within a day or so after the approval of competent Authority: 'You are directed to please issue the termination orders in regard to all the contracts of the present contractor today (Malik Gul Hassan and JA./V Traders)'." In pursuance of the said order the respondents Nos.2 and 3 cancelled all the contracts forthwith. Petitioners have further contended that in addition of the said cancellation all respective construction sites were forcibly entered into by or on behalf of the respondents. The unfinished works were taken over. ' It is equally important to note that an Ordinance namely Balochistan Ordinance XIII of 1989 titled as "Bolan Medical College (Board of Governors) Ordinance, 1989" was promulgated on 18-12-1989 and published in Balochistan Gazette 6-1-1990. The same was subsequently got approved and was passed by the Balochistan Assembly as an Act known as Balochistan Act III of 1990 called as Bolan Medical College (Board of Governors) Act, 1990 coming into force on 4-2-1990. It was to provide inter alia a Board of Governors for. Bolan Medical College for its efficient administration and management of the affairs of the College in a manner provided in the Act. ' To re-capitulate the facts, suffice is to mention that all the contracts of the 'petitioner's firm' were cancelled and the petitioners' firm approached High Court of Balochistan by Constitutional Petition No,132 of 1991. It is important to reproduce the prayer clause, because point of res judicata has been pressed into service. Earlier prayer was as under:-- "It is, therefore, prayed that the order of termination of various agreements be declared as without lawful authority. It is further prayed that respondents Nos.5 and 6 be restrained from interfering with the works of the petitioner. It is further prayed that the respondents be restrained from calling any fresh tenders. It is further prayed that pending decision of the writ petition the respondents be restrained from proceeding any further with the matter." ' This Constitutional petition came up for preliminary hearing and notices were issued to the Advocate-General and Standing Counsel. The petition was, however, dismissed by a Division Bench of this Court vide judgement dated 20-6-1991. ' Feeling aggrieved of the said judgment petitioners went before Hon'ble Supreme Court in Civil Petition for Special Leave to Appeal No,143 of 1991. The Hon'ble Supreme Court passed orders on 15th July, 1991 as under:-- "Mr. S.M. Zafar, learned counsel for the petitioner, has candidly submitted that the petitioner will have to file some other legal proceedings inter alia for impugning the above Ordinance and, therefore, he would not like to press the above petition for leave to appeal, if it is clarified that the observations made by the High Court on the factual aspect of the case, will not be considered as res judicata. 4, Learned counsel for the parties agree that both the parties will be at liberty to raise whatever factual and legal pleas may be available to them in any future proceedings which may be initiated by either of the parties and that any observation in the impugned order of the High Court, will not prejudice either of the parties. 5. We would, therefore, dismiss the above petition for leave as withdrawn with the above observations." ' Heard Mr. Sharifuddin Pirzada, assisted by M/s. Ehsanul Haque Khan, Ashraf Khan Tanoli and Syed Ayaz Zahoor for petitioner, Raja Rab Nawaz, Deputy Attorney-General, Advocate-General
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Balochistan, Mr. Yahya Bukhtiar assisted by Mr. Muhammad Riaz Ahmad, Mr. Abdus Samad Dogar, Advocate and Mr. Rahim Khan Zarkoon in person. ' Mr. Yahya Bukhtiar learned counsel for respondents 5, 6 and 7 raised an objection that the petition is hit by the principles of res judicata because in C.P. No,132 of 1991 petitioner Gul Hassan Company agitated identical legal points which did, not find favour with a Division Bench of this Court and the petition was dismissed on 20-6-1991. According to him same points in law, cannot be reagitated between the same parties and on the same subject-matter. ' In reply thereto Mr. S.S. Pirzada, the Senior counsel appearing on behalf of petitioner stated that the Hon'ble Supreme Court while dismissing CPSLA No,143 of 1991 observed that "counsel for the parties agree that both the parties will be at liberty to raise whatever factual and legal pleas may be available to them in any future proceedings which may be initiated by either of the parties and that any observation in the impugned order of the High Court will not prejudice either of the parties". He, therefore, submitted that it is unequivocally tantamount to grant of permission to petitioner to raise all or any of the factual and legal pleas already taken, therefore, the question of application of principle of res judicata does not arise. Before anything can be said on the rival contentions raised in this respect, it may be observed that whenever there is a judgement by a competent Court having jurisdiction inter-parties, it will prevent a fresh suit or proceeding between them regarding the same matter. The doctrine of res judicata is of universal application and in fact a fundamental concept in the organization of every judicial system. If a cause has been definitely determined by a competent Court or tribunal it shall be accepted as 'irrefragable legal truth'. However, question for consideration before us is whether or not a party can be deprived to press into service point of res judicata if so directed by any appellate forum or a superior Court. ' Although the Hon'ble Supreme Court while disposing of CPSLA No,143 of 1991 dismissed the petition for leave as withdrawn, but made a specific observation in para. 4 of the order that the counsel for the parties have agreed that both the parties will be at liberty to raise whatever factual and legal pleas may be available to them in any future proceeding which may be initiated by either of the parties and further that observations in the impugned order of the High Court will not prejudice either of the parties. ' According to Mr. Yahya Bukhtiar in the first instance, it was consented to by the parties and the Court had not made a specific observation in that regard except that in the end of the order petition was dismissed as withdrawn 'with the above uoservations'. But we found ourselves unable to subscribe to this argument, therefore, we would like to attend to the second limb of the argument i,e, even if the Court has made such observations, whether a right provided under law could be taken away by a Court or not? Mr. Yahya Bukhtiar laid much emphasis on the point that right of the parties to raise an objection of res judicata is a right guaranteed by law which can neither be taken away by an agreement nor by any Court. To supplement his arguments reliance was placed on the case titled Shahul Hamid v. Tahir Ali reported in 1980 SCMR 469. From perusal of facts of the case cited, it was found that an observation was made wherein it was held that finding of the Judge Small Causes Court will not operate as res judicata and with the consent of the parties appeal before the High Court had been withdrawn. An exactly similar legal proposition came up for consideration and determination whether doctrine of res judicata would be applicable in such an event. The Hon'ble Supreme Court observed that the main thing to be taken note of is that section 11, C.P.C. Which lays down the principle of res judicata, is mandatory, and as such, a party to a former suit decided by a Court of competent jurisdiction, can avoid its provisions only by taking recourse to section 44 of the Evidence Act (I of 1872) on ground of fraud or collusion or by showing that the previous judgement was a nullity or non-existent in the eye of law. It was further observed that in absence of any such thing a party cannot be estopped from pleading law
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as contained therein on the well-known principle that there can be no estoppel against statute and neither any Court of law (underlining is ours) nor any agreement can estop a party to plead law which is his "inalienable" right under Article 4(1) of the Constitution. In the end the following observations were made on page 473:-- "It was held that the observation in the judgement of the High Court did not preclude the defendant from raising or the Court from considering any plea of res judicata which may be available to the defendant. All this discussion will show that neither a Court can issue any order nor a party can agree that with regard to any particular operative judgment a plea of res judicata will not be raised in any future litigation. Such order or agreement as discussed above would be a nullity and inoperative." ' On the basis of this Mr. Yahya Bukhtiar urged with considerable vehemence that present petition is hit by the said principle and as this Court has already dismissed Constitutional petition filed by the present petitioner against the respondents on the same subject-matter, a fresh petition by the same parties on the same subject-matter is hit by the principle of res judicata. ' Mr. S.S. Pirzada took exception to this view and contended that this authority is not relevant to the proposition requiring determination by this Court. According to him the earlier decision does not amount to "an operative judgement" finally and conclusively deciding the lis between the parties but the petition has been dismissed in limine which, at the most, could be treated as an `obiter dictum'. If that be so, then the question of res judicata does not arise at all. In support of this contention learned counsel relied on PLD 1978 Lahore 901. ' We have perused the judgement (ibid) which in fact, was a Letters Patent Appeal No,173 df 1971. However, an observation was made by Hon'ble Justice Shafiur Rahman, Judge, Lahore High Court (as he then was ) on page 905 of the aforesaid judgement (ibid) as under:- " When a writ petition is dismissed as infructuous, it is only a fact noted. No finding is recorded. No adjudication takes place. No determination of the dispute is attempted. No decision is given. If any observation with regard to the merits of the controversy of the rights of parties to allay their misgiving or to provide a guideline to the statutory function, it is obiter dictum which in plain words means, 'a judicial opinion not bearing on the elements of a case and therefore not binding'...................................................................................... ' The question arises whether Division Bench in the earlier C.P. No,132 of 1991 had dismissed the petition as infructuous in order to attract the observations made in the aforesaid judgement. The plain answer is in negative. ' Of course the Division Bench of this Court in C.P. No,132 of 1991 issued pre-admission notice to the respondents and after hearing the counsel for the parties, dismissed the petition in limine. Here it is pertinent to mention that there is a difference between dismissal of a petition as "infructuous" and dismissal in "limine". A petition when dismissed as infructuous does not necessarily involve any decision neither on facts nor in law. One of the important aspect would be that respondents have either conceded to the allegations or the petitioner's grievance is redressed otherwise or some action is taken after which no further determination is required. Similarly there is difference between dismissal in "default" and dismissal in "limine". In case of dismissal in default judgement is delivered ex parte and an ex parte decision or judgment is liable to be set aside if a defect in the service of notice is pointed out. But as far as dismissal in limine is concerned the opposite-party is generally not heard. This distinction has been ably drawn by Hon'ble Supreme Court in PLD 1961 SC 119. On page 139 (ibid) it was observed as under:-- "A judgement of that kind is delivered where notice is issued to a party, but the party does not appear, and thejudgement is delivered ex parte. In such cases, if there was a defect in the service of notice, the ex parte judgement has to be set aside in continuation of the same proceedings (unless it be a case of fraud when a separate suit will lie). But the case is different where the Court
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refuses, to issue notice to the opposite-party. In such a case the opposite-party is, properly speaking, not a party to the proceedings at all and surely is not bound by anything decided therein." Generally when the High Court does not find it appropriate to admit for regular hearing a petition and before issuing a notice'to the respondent-party, dismisses the petition after summary hearing it is said to be dismissed in limine. However, in the instant case pre-admission notice was given to the opposite-party and order was passed after hearing counsel for the parties on almost all legal aspects of the matter particularly regarding maintainability of the petition. ' Syed Sharifuddin Pirzada then argued that in any case the judgment of the Division Bench in C.P. No,132 of 1991 is not an "operative judgment". ' In other words there was no determination of the rights/liabilities of the parties because the petition was not, even admitted for regular hearing. In order to appreciate this point we have to take resort to the word "operative". "Operative" has been defined in the Concise Oxford Dictionary as to mean "having effect, in operation, efficacious; (Law) expressing intent to perform a transaction; practical not theoretical or contemplative; having principal relevance ('may' is the operative word); or surgical operations; hence 2.n. Worker artisan mechanic, kill-hand; "private detective". We feel it incumbent to draw a distinction between judgments delivered in exercise of Constitutional jurisdiction under Article 199 of the Constitution and judgment delivered by a Court of law exercising its original jurisdiction. In die former case it is not required that evidence be recorded because questions involving factual controversies are generally not entertained in exercise of Constitutional jurisdiction. While exercising Constitutional jurisdiction, a High Court may, if it is satisfied that no other adequate remedy is provided by law. "(a) on the application of any aggrieved party, make an order:-- (i) directing a person performing, within the territorial jurisdiction of the Court functions in connection with the affairs of the Federation, a province or a local authority, to refrain from doing anything he is not permitted by law to do, or to do anything he is required by law to do; or (ii) declaring that any act done or proceeding taken within the territorial jurisdiction of the Court by a person performing functions in connection with the affairs of the Federation, a Province or a local authority has been done or taken without lawful authority and is of no legal effect; or ' It is not required of the High Court to conduct a detailed inquiry by recording evidence, and on the basis thereof to draw conclusions. Thus, in Constitutional jurisdiction trial does not commence as in the exercise of ordinary original jurisdiction. Therefore, a judgment delivered by the High Court in exercise of its jurisdiction under Article 199 of the Constitution becomes final when Constitutional petition is either dismissed or entertained. However, one factor becomes very pertinent in this regard i,e, to hear the parties or counsel of the parties on all legal issues raised before it. When, therefore, after hearing the parties a Constitutional petition is either entertained or dismissed the judgment is said to be final. In order to fortify the aforementioned view, reliance may be placed on AIR 1964 Madras 194. A Full Bench was constituted to consider the following proposition:- "Whether an order passed, either granting or refusing to grant a writ applied for under Article 226 which has the effect of either reviving or leaving the controversy before the inferior tribunal for adjudication, can be granted as a judgment or final order under, Article 133 of the Constitution." ' The proposition was thrashed out and finally it was concluded that:- "17. From the foregoing discussion, it will be apparent that an order on an application under Article 226, whichever way it goes will be a judgment within the meaning of clause 15 of the Letters Patent, as it will be a final adjudication of all matters in controversy in the writ proceedings and which have the effect of affecting the Constitutional remedy of an aggrieved party. This Court has consistently held that an order passed by a Single Judge on application under Article 226 of the Constitution,
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whichever way it went and whatever its effect on the proceedings before the inferior tribunal might be, will amount to a judgment capable of being appealed against under_Clause 15 of the Letters Patent." Keeping in view the ratio decidendi of the above case, it may be safely observed on the basis of above analogy that while disposing of a Constitutional petition, any order dismissing or accepting it, after affording an opportunity of hearing to the parties on all controversial points shall be a final adjudication of all matters in controversy thus an operative judgment. ' Another Indian authority as reported in AIR 1957 Punjab 173 (V 44 73 Aug.) (again a Full Bench judgment) while interpreting meaning of judgment, decree or final order observed as under:-- "In order that a decision should fall within the definition of the word `judgment' or 'final order' (1) it must finally decide the rights of the parties and the word 'judgment' means a final judgment and not an interlocutory judgment, and by which right to the relief claimed is decided with regard to all matters in issue, and (2) an order is final if it finally disposes of the rights of the parties and if it does not, it is not final even though it may decide a vital issue in the case. So, in every case the Court has to see whether the rights of the parties are finally determined by a decision. The mere fact that the Court refuses to issue a writ or direction under Article 226 does not take it out of the definition of the words 'judgement' decree or 'final order' but it will depend upon the facts, circumstances and the nature of decision in each case." ' Seen in the light of above observations it may be noted that while deciding C.P. No,132 of 1991 pre- admission notice was issued to the respondents and notice was also issued to learned Advocate- General. The counsel for all the parties were heard almost on all vital issues, including the Deputy Director Project. Thus, the order was passed after hearing the…
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