1994 PLP 207 (MLD)

This civil revision arises out of a suit for declaration and permanent injunction filed by the petitioner on 30-7-1991 in the Court of the Senior Civil Judge, Mianwali. The trial Court rejected the plaint with compensatory costs of Rs.5,000 vide order, dated 20-4-1992. The petitioner's appeal was dismissed by the learned District Judge, Mianwali vide the judgment and decree, dated 27-5-1993.

2. I have heard the learned counsel for the parties at pre-admission stage. The petitioner's learned counsel contended that the trial Court had acted with material irregularity in going beyond the averments contained in the plaint and rejecting it on consideration of other material. He emphasized that the plaint did disclose a cause of action requiring adjudication of the suit on merits after recording evidence of the parties. In support of his contentions he placed reliance on the case of Khan Muhammad v. Ghulam Rasool 1988 CLC

245. On the other hand the respondents learned counsel urged that the impugned judgment were rightly passed' by the Courts below because the petitioner had lost his case up to the level of the Supreme Court in the earlier round of litigation and filed the present suit with mala fide intentions when the respondents instituted a petition under section 144 of C.P.C. for restitution of the property. He explained that the judgment and decree of the Lahore High Court on the basis of which the petitioner was given possession of 64 Kanals and 14 Marlas of land was set aside by the Supreme Court, therefore, the petitioner was bound to surrender possession of the said land. He urged that the Hon'ble Supreme Court delivered its judgment on 19-3-1991; the respondents filed the application for restitution of the land on 11-4-1991, the petitioner filed his reply on 5-6-1991 and thereafter instituted the present suit on 30-7-1991. According to the learned counsel suit, on the one hand was barred under the provisions of section 144 of the C.P.C. and on the other amounted to a challenge to the judgment of the Supreme Court. He urged that the provisions of Order VII, Rule 11 of the C.P.C. were not exhaustive and the Court could reject the plaint even under section 151 of the C.P.C. to secure the ends of justice or to prevent abuse of the process of Court. He placed reliance on the following judgments:

(1) Muhammad Akhtar and others v. Abdul Hadi and others 1981 SCMR 878; (2) Bashir Ahmad v. Abdul Hameed and another 1984 SCMR 689 and (3) Nazeer Ahmad and others v. Ghulam Mehdi and others 1988 SCMR 824.

2. There is considerable force in the arguments raised by the learned counsel for the respondents. Generally, the Court has to consider averments made in the plaint while rejecting the plaint under the provisions of Order VII, ~1 Rule 11 of the C.P.C. However, the Court can also look into the contents of the written statement and the other material on the record and reject the plaint summarily to secure the ends of justice or to prevent the abuse of the process of the Court. For this purpose the Court can definitely fall back upon the provisions of section 151 of the C.P.C. In some cases, a party after losing the case upto the highest legal forum, reagitates the same matter in the Civil Court and then wants the Court to decide the suit on merits and not to reject the plaint by looking into the contents of the written statement or the judgments passed in the earlier round of litigation. In the case of Bashir Ahmad a tenant lost his case upto the level of the Supreme Court and thereafter filed a suit to set at naught the final judgment of the Supreme Court whereby order of High Court was upheld. Re-opening of the matter through a civil suit was considered to be barred by the law and notice for contempt of Court was issued to the tenant as well as his counsel who had drafted the plaint. While dismissing the petition for leave to appeal, the Hon ble Supreme Court was placed to observed as under. "It is a classic case of misuse of the procedure made available by the law of the land for genuinely aggrieved persons to remedies. There are several recent judgments of this Court whereby such approach to law and Courts has been disapproved. The re-opening of the matter in this case has rightly been held to be barred by law." In Muhammad Akhtar's case, it was held that the provisions of Order VII, Rule 11 of the C.P.C. were not exhaustive of all situations in which the plaint can be rejected or a suit can be dismissed summarily. On facts, it was held that after adjudication of the matter in the Supreme Court, a fresh suit to regagitate the same matter could not have been filed and that such a suit was an abuse of the process of law. In Nazeer Ahmad's case, the character of disputed land was determined by the Custodian of Evacuee Property Sindh, Hyderabad. In the civil suit a declaration was sought to the effect that the property was not an evacuee property and that the order :` passed-by the Custodian was mala fide and without jurisdiction. The Court rejected the plaint under the provisions of Order VII, Rule 11 of the C.P.C. The appeal and the revision against the judgment of the trial Court were dismissed. The Hon'ble Supreme Court dismissed the appeal with the following observation:

"This being the .position, upsetting the order of the Court below merely for the reason that the Court was not competent to look outside the averments made in the plaint would amount to merely pressing a technicality."

4. In the present case, the petitioner had succeeded to obtain possession of 64 Kanals and 14 Marlas of land on the basis of the judgment, dated 30-4-1982 passed, in his favour by the High Court. The judgment of the High Court was set aside by the Hon'ble Supreme Court vide the judgment dated 19-3-1991. Hence the petitioner was no longer entitled to retain possession of the suit land and was bound to surrender possession to the respondents who had instituted a petition under section 144 of the C.P.C. for restitution of the said land. The petitioner has no actionable claim in the fresh suit qua the disputed land. He had mentioned the above facts in paras. 3 and 4 of the plaint and thereafter claimed in para. 6 of the plaint that the respondents were not entitled to get the possession of the land back from him without partition. .

5. From the perusal of the contents o: the plaint, it is clearly made out that the petitioner's suit merits rejection summarily. The Court was fully competent to see the contents of the written statement as well as the earlier judgments and to reject the plaint summarily. Any other course of action would be violative of the law laid down by the Hon'ble Supreme Court E in the above-referred precedents and would have exposed the Civil Judge to action for contempt of Court. The Civil Court could have initiated contempt proceedings against the petitioner or proceedings for professional misconduct against his counsel, However, it simply burdened the petitioner with costs of Rs.5,000 which Appear to be justifiable in the circumstances of the case.

6. For the foregoing discussion, this petition is devoid of any merit which is dismissed in limine. AA./M-1218/L Petition dismissed.