1994MLD572 (PLP)

Malik Ghulam Mustafa and others, who are respondents in this Civil Revision, filed a suit against Malik Muhammad Shabbir petitioner seeking declaration to the effect that they are in possession of Ihata No.50 measuring 13 Marlas situate in Chak No.28, Tehsil Phalia, District Gujrat, under Scheme No.7 for a period of more than 30 years and have raised construction thereon and have also installed a water pump and machines, which premises is now in the shape of `Ghair Mumkin house' and that the defendant in illegal manner without any entitlement using his influence has got executed and attested a registered. sale-deed, dated 18-11-1989 in his favour on the basis whereof mutation has also been sanctioned which is also illegal and void and on the basis of this sale-deed, the defendant is interfering with their possession, and, therefore, decree for declaration of title as well as decree for permanent injunction may be granted in their favour restraining the defendant from interfering with their possession. The suit was contested by filing of written-statement by defendant. Learned. trial Court while deciding an application under Order 39, Rules 1 and 2, C.P.C. rejected the plaint under Order VII, Rule 11, C.P.C. vide order dated 15-2-1990, although pleadings of the parties gave rise to controversial questions of facts and law, which could have been adjudicated upon after framing of issues and after giving opportunity to the parties to lead evidence. Aggrieved of this order of rejection of the plaint, the respondents filed regular first appeal in the District Court of Gujrat which has been accepted by the learned Additional District Judge vide order, dated 14-7-1990 and the suit has been remanded to the trial Court for decision thereof afresh after framing of issues and recording of evidence of the parties. This remand order has been challenged by the defendant in the suit.

2. Ch. Qadir Bakhsh, Advocate has appeared on behalf of the petitioner. None has appeared on behalf of the respondents. Therefore, the respondents have been proceeded against ex parte. Learned counsel for the petitioner has argued that as the Ihata in dispute belongs to the Provincial Government, Scheme No.7 was not applicable and, therefore, the suit on the face of it could not proceed and further that there is a complete bar of jurisdiction under section 36 of the Colonization of Government Lands Act, 1912, therefore, the Civil Court has no jurisdiction to try the suit, hence the plaint was rightly rejected. Learned counsel further contended that the plaintiffs have earlier also filed a similar suit which has been dismissed, therefore, the suit is barred by principle of res judicata and the factum of withdrawal/dismissal of the previous litigation can be taken note of while proceeding under Order VII, rule 11, C.P.C.

3. I have considered the arguments addressed by the learned counsel and have also gone through the record. It is an established legal proposition that while deciding the competency of the suit under Order VII, rule 11, C.P.C. the contents of the plaint as given are to be admitted as correct and on that premises it has to be seen whether the plaint is liable to be rejected under Order VII, Rule 11, C.P.C. In the case in hand, the plaintiffs have claimed title in the property on the basis of their long possession and under a scheme number whereof may have been misdescribed in the plaint. Title of the defendant has also been challenged on the basis of collusion and fraud. Protection of possession is also claimed in the plaint. The contentions raised in the plaint have been controverted by the defendant/petitioner. Consequently, it was not a suit where the plaint could have been rejected under Order VII, Rule 11, C.P.C. Plea of res judicata is a plea of defence and has to be proved by leading evidence. Consequently, even if it is assumed for the sake of arguments that some litigation had taken place earlier as well, the effect of the same had to be pleaded as bar to the present suit and proved while leading of evidence. Consequently, this was a suit plaint whereof could not have been rejected under Order VII, Rule 11, C.P.C. and that is why the learned First Appellate Court has rightly set aside the order of rejection of the plaint passed by the learned trial Court following the principle that law favours adjudication on merits and not technical knock out. Needless to say after the suit has been remanded all the pleas including preliminary objections of law shall remain available to be pressed by the petitioner which shall definitely be decided as preliminary issues by the learned trial Court and therefore while passing of remand order it cannot be said that any prejudice has -been caused to the petitioner. Rather justice has been done. The parties have been given opportunity to prove their contentions and will have full opportunity to lead evidence in support of their respective contentions. This order in any manner cannot be said to have been passed illegally and with a material irregularity. Resultantly, I see no force in this civil revision, the same is dismissed. However, the learned trial Court is directed to decide the suit within a period of four months even if he has to hold day to day proceedings in the matter. Parties are left to bear their own costs. H.B.T./M-967/L Revision dismissed.