JAN WALI vs HASHMAT BIBI S — 2025 CLC 1840 PESHAWAR-HIGH-COURT

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JAN WALI VS HASHMAT BIBI S. 42---Paternity, challenge to---Legality---Throwing a legal challenge to the paternity of someone is not an assertion of one's own legal character in terms of S. 42 of the Specific Relief Act, 1887---A person whose legal character, including paternity, is denied, can file a suit to assert entitlement. Citation Name: 2025 CLC 1840 PESHAWAR-HIGH-COURTBookmark this Case JAN WALI VS HASHMAT BIBI S. 11---Constructive res judicata---Principle---Scope---A party cannot circumvent a final judgment by introducing new grounds or claims in a subsequent suit which were available but not asserted earlier---Even if certain questions were not raised in the earlier proceedings, the omission to do so attracted the principle of constructive res judicata---Where the parties had the opportunity to assert all available grounds in a prior suit but failed to do so, such unraised grounds shall be deemed to have been heard and decided, and the parties would be precluded from agitating the same in subsequent litigation. Citation Name: 2025 CLC 1840 PESHAWAR-HIGH-COURTBookmark this Case JAN WALI VS HASHMAT BIBI Judgment in rem and judgment in personam---Scope---Distinction---Judgment in rem-determines the status of a thing or a person and is conclusive against the world at large---Judgment in personam binds specific parties to the litigation. Citation Name: 2025 CLC 1840 PESHAWAR-HIGH-COURTBookmark this Case JAN WALI VS HASHMAT BIBI S. 11, 'Explanation IV'---Constructive res judicata---Principles stated---Explanation IV to S. 11 of C.P.C. postulates that any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in a subsequent suit---Five principles of constructive res judicata as laid down by the Supreme Court are that: (i) The matter is directly and substantially in issue in the subsequent suit or issue must be the same matter which was directly or substantially in issue either in actually or constructively in the former suit; (ii) The former suit must have been a suit between the same parties or between the parties under whom they or anyone of them claim; (iii) The parties as aforesaid must have litigated under the same title in the former suit; (iv) The Court which decided the former suit must have been a Court competent to try the subsequent suit in which such issue is subsequently raised; (v) The matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by the Court in the first suit. Citation Name: 2025 CLC 1840 PESHAWAR-HIGH-COURTBookmark this Case JAN WALI VS HASHMAT BIBI S. 11---Res judicata---Applicability---Petitioner seeking to reopen issue of respondent's paternity and entitlement to inherit legacy of her father despite earlier adjudication regarding paternity up to the Supreme Court---Legality---Constructive res judicata---Scope---Grounds available but not taken in former suit deemed to have been directly and substantially in issue---Judgment in rem and in personam---A judgment on paternity, being both in personam and in rem, operates as res judicata on status and title, binding even those claiming under a party to the earlier suit---In the present case the petitioner sought to challenge inheritance mutation and deprive the respondent of her share---Primary issue in the present case was as to "whether the petitioner could re-litigate/agitate the question of the respondent's parentage and her entitlement to inherit from her father, despite that matter already having been conclusively decided in earlier proceedings up to the Supreme Court"?---Held: The submission of the cognovit by the respondent No. 2 raised serious question of maintainability vis-a-vis the application of res judicata---Undeniably, he was the main defendant in the former suit---It was he who disputed the parentage of the respondent No. 1, and to reiterate, he unsuccessfully contested the same issue till the Supreme Court---The materiality of this admission lay in the fact that he was the real maternal uncle of the petitioner---In this perspective, perhaps there was no need to say who was standing behind the petitioner in the background---Indeed, the cognovit stood as more than a mere admission---It constituted a tacit alignment with the petitioner's position, thereby effectively placing the respondent No. 2 in the shoes of the petitioner---By supporting the petitioner's plea, he then, by implication, challenged, in fact, re-agitated the parentage of the respondent No. 1, which, as an issue directly and substantially involved in the former suit, had been determined by all the Courts concurrently---Principles of applicability of constructive res judicata were squarely attracted to the present case---It was fully established on all canons of evidence in the former suit that the respondent No. 1 was the daughter of late "AH"---Even Mst. "HJ", mother of petitioner, who, too, was alive at that time, did not raise any such objection---It was to be noted that the paternity was never challenged in the lifetime of "AH"---Another key aspect of the case was the legal character of the earlier judgment concerning the paternity of the respondent No. 1, which partook both of a judgment in personam and in rem---While a judgment in personam bound the parties to the suit, a judgment in rem conclusively determined the legal status of a person or thing and was binding erga omnes, provided it was rendered by a court of competent jurisdiction---The adjudication in the former suit, upheld by the highest judicial fora, directly and conclusively determined the respondent No. 1's parentage as the biological daughter of "AH" and Mst. "MJ", an issue that was central to the dispute and decided after full contest---Although the petitioner was not a party to that litigation, he claimed under "AH" the same title as the respondent No. 2 did in the earlier suit-and was therefore bound by the earlier determination---Consequently, the former judgment operated as res judicata, both as to status and title, precluding the present challenge---High Court emphasized that the present case had serious implications for women's right to inheritance---It had been fully established from the record that in the former suit, the respondent No. 2 tried to deprive the respondent No. 1 in the inheritance of her father by fraudulently obtaining from her a sale deed which she challenged before the court and obtained a decree in her favour---The respondent No. 2 contested the suit till the Supreme Court, dragging her in litigation till the final Court---Now, in the present suit, he again approached the High Court being hands in glove with the petitioner, to re-agitate the issue which was deemed to have been taken on the doctrine of constructive res judicata---Present case was a typical example of creating a pretext to deprive a woman of her property rights in the inheritance of her parents---Higher Courts, particularly, the Supreme Court consistently condemned the practice of depriving female legal heirs of their rightful shares in inheritance, as ordained by Shari'ah---Petitioner's suit was barred by the principle of constructive res judicata---The concurrent findings of the Courts below dismissing the petitioner's claim were affirmed---Present suit constituted an impermissible attempt to reopen issues conclusively determined till the Supreme Court---The judgments and orders of the Courts below, being well-reasoned, did not warrant interference in revisional jurisdiction---Consequently, present petition, being devoid of merit, was dismissed in limini.

JAN WALI vs HASHMAT BIBI S — 2025 CLC 1840 PESHAWAR-HIGH-COURT

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