Thursday, 17 May 2012

What happens when a suit is hit by Section 11 of CPC

PLJ 2012 Quetta 19

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 28-04-2001, vide her judgment dated 29-06-2001, with the following direction or decree:

"The impugned order, decree (dated 28-04-2001) is illegal and is set aside hereby, with the directions that decide the case after obtaining written statement, framing of the issues and leading evidence from both sides in accordance to law. Appeal is accepted accordingly."

The respondents/defendants challenged the remand order of the learned Additional District & Sessions Judge dated 29-06-2001, before this Court and this Court Vide Civil Revision No. 212/2001 set aside the judgment of Additional District & Session Judge, Pishin, with the following observations:

"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 14-06-2002 up held the judgment and decree of Civil Judge, Pishin, dated 28-04-2001.

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

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