PLJ 2012
Present: Abdul Qadir Mengal, J.
AKRAM & 3
others--Petitioners
versus
NAZAR ALI &
others--Respondents
C.R. No. 247 of
2002, decided on 5.8.2011.
Civil Procedure
Code, 1908 (V of 1908)--
----Ss. 11, 115
& O. VII, R. 11--Civil revision--Once original suit was decided in civil
suit, the suit become infructous--Rejection of
plaint--Objection of res-subjudice--Being present
matter was hit by S. 11 of CPC, which was a legal objection and same could be
considered and decided at any stage of proceedings, therefore, the suit was not
tenable, as suit was hit by S. 11 of CPC--Original issues already had been
decided in civil suit and civil revision, therefore, the instant suit of
petitioner had become infructuous--Petition was
dismissed. [P. 25] A
M/s. Saleem Lashari & Waseem Shahid, Advocates for Petitioners.
Mr. Mujeeb Ahmed Hashmi, Advocate for
Respondent.
Date of hearing:
29.7.2011.
Judgment
This civil
revision petition has been preferred against the judgment/decree dated
28-04-2001, passed by the Civil Judge, Chaman, and
against the judgment and decree dated 14-06-2002, passed by the learned
Additional District Judge, Pishin, whereby, the suit
as well as the appeal preferred by the petitioners/plaintiffs were dismissed.
2. Brief facts leading to file, the present
civil revision petition are that, petitioners/plaintiffs filed a suit for
declaration, cancellation of mutation entries and permanent injunction with
regard to land situated in Mohal Mouza
Lehr, Tehsil Chamman,
District Killa Abdullah, with a averments, the
petitioners/plaintiffs, Since their forefathers cultivating and are in
possession of their lands, however, during the settlement operation, year
1963/64, some portions of the disputed land falling under Khasra
Nos. 113/1, 114, 115, 215, 218, 219, 225 and 226 Mohal
Mouza Lehr, Tehsil Chamman, District Killa Abdullah,
wrongly entered into the names of respondents/defendants and their forefathers,
which was not in the knowledge of the petitioners/plaintiffs. However, when the
petitioners/plaintiffs came to know about the wrong entires,
when, the Civil Suit No. 31/2000 titled as Muhammad Essa
& others Vs. Abdul Hakeem & others filed by the respondents/defendants.
It was further averred that, the Respondent Nos. 1 to 16 are the owners of only
22 acres in Khasra Nos. 54 and 56, but rest of the
property belongs to petitioners/ plaintiffs. It was further contended that, the
name of respondents Juma son of Attaullah,
Bismillah, Sheikh sons kareern,
Amanullah, Habibullah sons
of Khuda-e-dad, Paindi son
of Saeedo, Ghulam Muhammad
son of Muhammad Shareef, Abdul Razzaq
son of Ali Jan and Khudai Dost son of Dilbar have wrongly been mentioned in the revenue record,
as such, the petitioners/plaintiffs prayed that:--
(a) They are the owners of the land bearing Khasra Nos. 113/1, 114, 115, 215, 218, 219, 225 and 226
situated at Mohal Mouza
Lehr, Tehsil Chamman, District Killa Abdullah.
(b) Declaring that the plaintiffs are in
peaceful possession of the land in question and the same is being cultivated by
the plaintiffs.
(c) declaring that the entry in the name of
defendants of the land bearing Khasra Nos. 113/1,
114, 115, 215, 218, 219, 225, 226 are wrong, illegal and without any lawful
justification.
(d) Declaring that the revenue entry with
regard to the land in question is liable to be cancelled and the same may be
reverted in the names of the plaintiffs.
(e) Directing the Defendant No. 1 to 16 for
transfer of the land in question in the names of the plaintiffs.
(f) Restraining the defendants from transferring,
alienating, mortgaging the land in question to any other person.
(g) Any other relief, which may deems fit
and proper in the circumstances of the case may also be awarded.
(h) Cost of the suit may also be awarded to
the plaintiffs.
3. The respondents/defendants, filed their
written statement raised some legal objections including objection of res-subjudice that, the suit of petitioners/plaintiffs hit by
provisions of Section 10 C.P.C. as already, a suit is pending in respect of the
same subject matter between the parties for partition and ownership. The
respondents/defendants further argued that, the disputed land jointly owned by
the respondents, petitioners and same is also jointly recorded property to the
names of respondents and petitioners. In this regard, a partition application
has been filed before the revenue authorities, but the petitioners/plaintiffs
to defeat the proceedings of the revenue authorities have filed the present
suit. The Fard-e-Haqeeat or record of the right, jointly coming to the name
of all the petitioners and the respondents. A suit for partitions is
already filed and all the issues of present suit of the petitioners/plaintiffs
are in issue in that matter between both the parties, therefore, the present
suit of the petitioners/plaintiffs is able to be set aside.
4. Mr. Saleem Ahmed Lashari, Advocate, present for petitioners while Mr. Mujeeb Ahmed Hashmi, Advocate,
present for respondents.
5. I have heard counsel for the petitioners at
length, so as, the counsel for the respondents Mr. Mujeeb
Ahmed Hashmi, Advocate, was heard. It may be pointed
out that, initially, on 28-04-2001, the suit of the plaintiffs was rejected
under Order VII, Rule 11, holding that, issues of the previous suit entirely
related to the contents of the civil suit in hand, therefore, no cause of
action accrued to the petitioners/plaintiffs, as such, the present suit is not
tenable and same is rejected. The above order of the Civil Judge was challenged
by the petitioners/plaintiffs before the Additional District & Sessions
Judge, Pishin, vide Civil Appeal No. 23/2001 and the
learned Additional District & Sessions Judge, Pishin,
set aside the judgment and decree dated
"The
impugned order, decree (dated
The
respondents/defendants challenged the remand order of the learned Additional
District & Sessions Judge dated
"The
subsequent suit for Declaration, Cancellation of Mutation entries and Perpetual
Injunction was instituted by the defendants in the earlier suit and 50 others
against the petitioners, out of whom the Petitioners No. 2, 8, 11, 15, 16 and
18 were the plaintiffs in the earlier suit. In the subsequent suit the claim of
the plaintiffs/privates respondents was that they are owners in possession of
the land bearing Khasra Nos. 113/1, 114, 115, 215,
218, 219, 225 to 233, 235, 237, 241, 254 and 256 bearing Khewat
and Khatooni Nos.54/56, situated in Mahal and Mouza Lehr, Tehsil Chaman, District Killa Abdullah since the time of their fore-fathers and
revenue entries also appear in their names and in the name of their
fore-fathers in the record of rights, but during the revenue
settlement/operation of the area carried out in the year 1963-64 some portions
of the land bearing Khasra Nos. 113/1, 114, 115, 215,
218, 219, 225 and 226 were wrongly and illegally entered in the names of the
petitioners or their fore-fathers despite of the fact that the private
respondents are in the active physical possession of the same and the
petitioners/defendants have no concern with these lands nor they are in
possession of the same. Further their case was that consequent upon institution
of the suit by Petitioners No. 2, 8, 11, 15, 16 and 18 they came to know about
the adverse entries having been made in their favour
of their forefathers out of whom except Defendants No. 17 and 21 they are the
owners in possession of the land measuring 22 acres, bearing Khasra Nos. 254 and 256, situated in Mouza
and Mahal Lehr, Tehsil Chaman, District Killa Abdullah,
but the defendants in connivance with the revenue officers were successfully in
obtaining wrongful revenue entries in their favour in
respect of rest of the suit lands. Also, it was pleaded
that the dispute between the parties was set at rest through arbitration
proceedings and by means of award dated 5.6.1999 the issue was resolved finally
by the M/s. Molvi Muhammad Shafi.
Further the case of the respondents/plaintiffs was that after coming to know
about the adverse revenue entries the petitioners were approached for
correction and reversal of the wrong entries but they declined to accede to the
request. On these averments the subsequent suit was instituted wherein the
reliefs reproduced in Para No. 5 above, were claimed. Petitioners being
defendants in the subsequently instituted suit contested the suit as swell as application for interim relief on various grounds
of facts and law. Besides other preliminary objections, objections were taken
that the suit was hit under Order VII, Rule, CPC as well as the same is liable
to be stayed in view of the provisions of Section 10m CPC and is barred by
time. On 6.4.2001 the private petitioners being the defendants in the
subsequent suit, filed a Misc. Application under Order VII, Rule 11 CPC seeing
for rejection of the plaint on the ground that in the earlier suit instituted
by them the parties are directly and substantially at issue in respect of the
same subject matter in respect whereof in the earlier suit Issue No. 5 was
recast and an additional Issue No. 6 was framed. The private respondents by
means of their rejoinder dated 14.4.2001 contested the application mainly on
the ground that their suit was not hit under Order VII, Rule 11 CPC as a valid
cause of action accrued to them against the petitioners/defendants and that the
parties were not directly and substantially at issue in respect of the subject
matter of the earlier suit. After hearing the parties the learned trial Court
by means of order dated 28.4.2001 held that the suit of the private respondents
was not maintainable in view of the provisions of Order VII, Rule 11 CPC,
accordingly; the same was rejected under the aforesaid Order on the ground that
no cause of action accrued to the plaintiffs to institute the suit. This order
was set aside on appeal filed by the respondents and the matter was remanded by
the learned appellate Court with the direction to the trial Court to frame
issues out of pleadings of the parties and to proceed with the case in
accordance with law. Perusal of the impugned appellate order operating part
whereof has been reproduced in Para No. 5 above, will go to show that the
learned appellate Court in fact itself disposed of the appeal in a haphazard
and perfunctory manner without applying its mind to the facts of the case and
did not determine as to whether the suit subsequently instituted was without
any valid cause of action or was hit under provisions of Order VII, Rule 11 CPC
nor did it even consider keeping in view the pleadings of the parties in both
the suits and the issues framed by the trial Court in the earlier suit in order
to find out as to whether the subsequent suit was liable to be stayed or
otherwise, hence; the impugned appellate judgment being absolutely defective
and suffering from legal improprieties cannot sustain, consequently; the same
is set aside. As the entire matter was open in appeal before the appellate
Court therefore not only that it was obligatory for the appellate Court,
rather; a legal duty was case on it to have considered and examined in depth
whether the subsequent suit was hit under any provisions of Order VII, Rule 11
CPC or the same deserved to be stayed in view of the provisions of Section 10
CPC. But as an other developments has taken place that the earlier suit i.e.
Civil Suit No. 31/2000 was decreed in favour of the
plaintiffs vide judgment and decree dated 17.7.2001 passed by the learned Civil
Judge, Chaman, therefore, examination and
determination of the question as to whether the subsequent suit was liable to
be stayed under Section 10 CPC having become infructuous
need not be dilated upon except that the appellate Court before whom the entire
matter in the light of the pleas taken in the application filed under Order
VII, Rule 11 CPC would be open for consideration and determination and the
decree passed in the earlier suit by the learned trial Court would not affect
the exercise of the jurisdiction by the appellate Court to decide the appeal
afresh after hearing the parties while deciding the question as to whether the
subsequent suit was hit under any provisions of Order VII, Rule 11 or Section
11 CPC in view of the decree passed in the earliest suit by the learned trial
Court on 18.7.2001.
Thus in view of
the above discussion and reasons the appeal filed by the private respondents
against the judgment/decreed dated 28.4.2001 shall be deemed as pending on the
file of the learned Additional District and Session Judge, Pishin
which shall be disposed of after hearing the parties within one month on its
own merits and strictly in accordance with law. The result is that the impugned
Appellate Judgment/Decree set aside and this civil revision petition is partly
allowed in the above terms, leaving the parities to bear their
own costs."
6. Thus, in the light of above, the matter was
sent to Additional District & Session Judge, Pishin,
who vide her judgment/decree dated
7. Learned counsel for the petitioners mainly
contended that, under Order VII, Rule 11 C.P.C., the suit of the plaintiffs
cannot be dismissed or rejected, as the suit of the plaintiff well shows that,
there is a cause of action accrues to the petitioners/plaintiffs and the
petitioners suit could be consolidated alongwith suit
filed by the respondents and validly could be decided, but here in the present
circumstances his suit or matter was heard not at all and wrongly dismissed
under Order VII, Rule 11 C.P.C. Learned counsel further argued that, the
Additional District & Session Judge, Pishin,
wrongly has up held the judgment/decree of Civil Judge, therefore, both the
judgments/decrees are liable to be set aside and matter be sent again for
leading evidence and decision in accordance with law.
8. The learned counsel for the
respondents/defendants opposed the contention of the learned counsel for the
petitioners/plaintiffs and stated that, once the original suit with regard of
partition already has been decided against the petitioners/plaintiffs in Civil
Suit No. 31/2000, therefore, the present suit becomes infructuous
and as such, the same is liable, to be dismissed.
9. After hearing both the sides, I am of the
view that, though technically the both judgments and decrees of the trial Court
and as well as the Appellate Court are not correct, being referring the Order
VII, Rule 11, for rejecting and dismissing the suit, but at the same time, the
conclusion drawn by the both Courts below, vide judgment/decree dated
28-04-2001, and 14-06-2002 are legally correct, which do not require to be
interfered in the circumstances of the matter, because the original Suit No.
31/2000 lying between the same parties on the same subject matter already has
been finally decided and through which, the contention of
the petitioners/plaintiffs was
rejected that, they were the only legal owners in possession of the suited
property. So being, the present matter has hit by the Section 11 of C.P.C.,
which is a legal objection and same could be considered and decided at any
stage of the proceedings, therefore, in view of above, the present petition is
not tenable, as the suit of the petitioners hit by the Section 11 of the C.P.C.
Further more, there is weight in the contention of
the learned counsel for the respondents/defendants that, the original issues in
question already have been decided vide Suit No. 31/2000 and the Civil Revision
No. 245/2002, therefore, the present suit of the petitioners has become infructuous. Thus, being above, the present petition has no
force, same is dismissed with no order as to cost.
(R.A.) Petition dismissed