P L D 2006 Lahore 311 (PLP)

MUHAMMAD MUZAMMAL KHAN, J.

Instant constitutional petition prayed judgment/order dated 18-2-2004 passed by the learned Additional District Judge (respondent No.3) to be declared illegal, void and of no legal consequence, whereby revision petition filed by respondent No.1 was accepted and plaint in suit filed by the petitioner was rejected under Order VII, rule 11, C.P.C.

2. Succinctly, relevant facts are that petitioner being daughter of Muhammad Akhtar Qureshi filed a suit for possession through declaration and permanent injunction with the claim that her deceased father also left Property No.3-A, Block A, M. A. Johar Town, which devolved upon his legal heirs by way of inheritance. Earlier respondent No.1 had filed a suit for administration of properties left by Muhammad Akhtar Qureshi deceased, wherein petitioner was impleaded as a party. In the suit filed by respondent No. 1 parties entered into a compromise and by dint of a compromise deed dated 13-12-1991 the suit was disposed of. Petitioner pleaded in her suit that she was not aware of all the properties owned by her father but respondent No.1 deliberately concealed suit property at the time of filing of his suit by not mentioning it in schedule in paragraph 3 of his plaint. She prayed a decree for declaration and possession of Property bearing No.3-A, M.A. Johar Town, Lahore, which according to her was owned by her father and was left out from earlier litigation. Respondent No.1 being defendant in the suit, filed an application under Order VII, Rule 11, C.P.C. on the ground that the suit was barred under section 11 and Order II, Rule 2, C.P.C., hence plaint was liable to rejection. Learned Civil Judge, seized of the matter, after getting reply to the application filed by respondent No.1 dismissed the same vide his order dated 12-9-2004. Respondent No.1 being aggrieved of dismissal of his application, filed a revision petition before the learned Additional District Judge, where he succeeded, as his revision petition and application under Order VII, Rule 11, C.P.C. were accepted and petitioner's plaint was rejected vide revisional judgment dated 18-2-2004. Petitioner thereafter filed instant writ petition with the relief noted above and respondent No.1 in response to notice by this Court has appeared and was represented through his counsel.

3. I have heard the learned counsel for the parties and have examined the record, appended herewith. Undisputedly, earlier suit for administration of properties left by the deceased Muhammad Akhtar Qureshi was decided on the basis of compromise between the petitioner and respondent No.1, who are real sister/brother vide judgment/decree dated 13-12-1991 and second suit by petitioner on the basis of same cause of action was not only hit by the provisions of Order II, rule 2 read with section 11, C.P.C. but principle of estoppel is also fully attracted. Petitioner did not produce any prima facie proof that the property allegedly left out was owned by her father, whereas record produced by respondent No.2 revealed that Property No.3-A, Block A of M.A. Johar Town Scheme, Lahore, was transferred in the name of Muhammad Anwar Qureshi, a paternal uncle of the parties as far back as on on 10-9-1989. Under law, only one suit is competent for administration of estate of the propositus, like a suit for partition of joint properties or B succession of assets of the deceased. Petitioner in presence of decree dated 13-12-1991 for administration of property left by her father Muhammad Akhtar Qureshi, was debarred from maintaining another suit in form of possession through declaration/permanent injunction and her C suit was hit by provisions of section 12(2), C.P.C. as well. Law regarding applicability of provisions of Order VII, rule 11, C.P.C. is firmly settled by this time, where under fruitless/incompetent litigation has to be buried at its inception to avoid wastage of public time of the D Courts and that of the parties. I while forming this view have to my credit judgments in the cases of Haji Allah Bakhsh v. Abdul Rehman and others 1995 SCMR 459 and S.M. Shafi Ahmed Zaidi through Legal Heirs v. Malik Hassan Ali Khan (Moin) through Legal Heirs 2002 SCMR 338.

4. Petitioner after entering into compromise with her real brother could not lay her hands to the property which was not in the ownership of her father at the time of his death, thus her suit besides being barred by law, as discussed above, did not disclose any cause of action hence its plaint was correctly rejected.

5. For the reasons noted above, revisional Court committed no illegality amenable to constitutional jurisdiction of this Court. Even otherwise, lawful decision within the ambit of conferred jurisdiction cannot be substituted on this petition, which being devoid of any merit, is dismissed with no order as to costs. S.A.K./Y-3/L?????????????????????????????????????????????????????????????????????????????????????? Petition dismissed.