2004 PLP 1180 (YLR)

Sheikh Naveed Shaharyar for Petitioner. Khurshid Ahmad Chaudhary for Respondents. Date of hearing: 17th December, 2003. This Constitutional petition seeks judgment order dated 6-3-2003 passed by the Additional District Judge, Sargodha, whereby petitioner's suit was rejected under Order VII, rule 11, C.P.C., to be declared as illegal, void and ineffective.

2. Precisely, factual background of the case is that the petitioner and his mother filed a suit for declaration with consequential relief and permanent injunction against the respondents, claiming their share in joint holding with them. This suit was partly decreed by the learned civil Judge vide his judgment and decree dated 27-3-1983. The petitioner was not satisfied with the decision of the trial Court and consequently filed an appeal before the learned District Judge, which was decided on the basis of compromise by the learned District Judge on 10-6-1985. According to this decision, determination of petitioner's share was made and a part of holdings of the parties was exchanged, under their compromise. This decree dated 10-6-1985 was not challenged, any more in appeal or revision.

3. The petitioner, for the second time, filed a suit for declaration before the Civil Courts at Sargodha on 18-4-2002 claiming ownership' on the basis of exchange contained in judgment and decree dated 10-6-1985 passed by the learned District Judge, Sargodha. This suit was contested by the respondents and they filed an application under Order VII, rule 11, C.P.C. before the trial Court seeking rejection of the plaint on the ground that the suit on the basis of earlier decree which was passed on the basis of compromise is not maintainable, in view of provisions of section 47 of the C.P.C. This application was replied by the petitioner and was dismissed by the learned trial Judge vide order dated 6-9-2002 who opined that resort to process of execution, is of course the proper method for satisfaction of the unsatisfied part of the consent decree. But at the present stage it is too early to hold that the decree still remains unsatisfied. He also observed that one type of legal proceedings can be competently converted into another kind of proceedings and consequently dismissed the applications of the respondents under Order VII, rule 11, C. P. C.

4. Respondents feeling dissatisfaction with the order dated 6-9-2002, filed a revision petition before the District Judge, Sargodha, where their revision petition and application under Order VII, rule 11, C.P.C. was accepted and plaint of the petitioner was rejected, being barred by law, vide judgment/order dated 6-3-2003.

5. The learned counsel for the petitioner submits that view taken by the revisional Court is not only erroneous but is also contrary to law as the second suit by the petitioner on the basis of earlier decree, was maintainable. He further contends that though the suit of the petitioner is with regard to unperformed part of the decree dated 10-6-1989 yet it could be controverted into any kind of proceedings, as maintainable under law and that the learned trial Court had not ordered conversion of suit and had not taken any decision regarding maintainability of the suit, revisional Court was not competent, under law, to pass any order in the manner complained. He in this behalf relies to the case of Nazir Ahmad and others v. Muhammad Din and others 1995 SCMR

933. It has also been contended on behalf of the petitioner that conversion of the suit to execution petition or to any other proceedings, maintainable under law is permissible. He in this behalf referred to section 47(2), C.P.C. and to the case of Manzoor Elahi through Legal Heirs v. Ch. Muhammad Akbar and 2 others 1999 MLD 901 and to the case of Broken Hill Proprietary Company Limited v. Ghee Corporation of Pakistan (Pvt.) Ltd. 2001 CLC

707. It is also added to the arguments that the petitioner being ; undeniably in possession of the land in dispute, limitation for filing of suit in hand does not run against him. Powers of the revisional Court to reject plaint under Order VII, rule 11, C.P.C. have seriously been challenged by the learned counsel for the petitioner, asserting that such exercise had rightly been refused by the trial Court but could not have been undertaken by the learned Additional District Judge. In this behalf he relies to the case of Mst. Bilqees Begum v. Haji Ghulam Rasool 1994 C L C 2296.

6. Conversely, the learned counsel for the respondents refuted the submissions of the petitioner and supported the order of the revisional Court and urged that since no execution petition has been filed, conversion of the suit into execution petition under section 47(2), C.P.C, is neither imaginable nor could be done. He further submitted that the parties to the compromise effected through judgment dated 10-6-1985, were not impleaded by the petitioner as parties to the suit and in this view of the matter, the suit of the petitioner could not proceed.

7. I have anxiously considered the respective arguments of the learned counsel for the parties; and have examined the record. Undeniably the learned trial Judge who was seized of the suit and before whom the application under Order VII, rule 11, C. P. C. was filed by the respondents did not decide three matters, firstly that decree dated 10-6-1985 is executable, secondly suit on the basis of compromise contained in earlier decree dated 16-6-1985 is maintainable or not, at law and that conversion of suit to any other proceedings is permissible or not. Respondents had not denied compromise between the parties to the earlier suit, during hearing of the appeal which matured into decree dated 16-6-1985 as they have not challenged it before the same Court or before any higher forum and in this manner that decree has attained finality. Rights of the parties, thereunder vested in .the respective parties to whom this decree conferred title. According to assertions of the petitioner that properties exchanged under this compromise did not change hands and in this manner this part of the decree remained unperformed. Law is not that ineffective, that it cannot give effect to rights of the parties created by a lawful decree of the Court and that too, on they basis of compromise between the parties, in a similar situation, the Honourable Supreme Court of Pakistan decided that defendants, after compromise, cannot subsequently agitate that either the decree passed on compromise was in executable or that suit on the basis of sale, was barred by time. In this precedent case as well, decree, on the basis of a compromise was not executed and instead a mutation was sanctioned, the plaintiffs filed suit on the basis of earlier consent decree which was decided in their favour and decision was maintained in appeal, as well as, in revision where again, leave to appeal before the Honourable Supreme Court, was refused. I accordingly, respectfully following the view taken in the case of Nazir Ahmad (supra) conclude that suit by the petitioner cannot be said to be barred or not maintainable especially when there is an assertion that a part of the compromise remained unperformed. In this regards section 47, C. P. C. reads asunder:-- "Questions to be determined by the Court executing decree:

1. All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit. The Court may, subject to any objection as to limitation or jurisdiction, treat a proceeding under the section as a suit or a suit as a proceeding and may if necessary, order payment of any additional Court-fees.

2. Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the Court. Explanation. For the purposes of this section, a plaintiff whose suit has been dismissed and a defendant against whom a suit has been dismissed, are parties to the suit. "

8. Subsection (2) of section 47 produced above for convenience, shows that the Court has a jurisdiction to treat an execution petition as a suit or a suit as an execution petition. This provision of law does not require that earlier some execution petition should have been pending. When a suit itself is to be treated as an execution petition, obviously subject to any objection as to limitation or jurisdiction, pendency of some earlier execution petition is not needed for such conversion. In this manner I find no substance in the arguments of the learned counsel for the respondents that without there being any execution petition, suit cannot be converted into execution petition. In similar situation where a pre emption suit was decreed on the basis of compromise including the land beyond subject-matter of the suit, this Court in case of "Manzoor Ilahi, through its legal representatives v. Ch. Muhammad Akbar and 2 others" reported as 1999 MLD 901 took the view that decree to the extent relating to the land subject of suit will be executed by the executing Court whereas, the decree related to land beyond subject matter of the suit, execution petition may be decided to be converted into suit, for enforcement of compromise. In another case High Court of Karachi jurisdiction in the case of Broken Hill Proprietary Company Limited v. Ghee Corporation of Pakistan reported as 2001 CLC 707 took the view that executing Court subject to any objection as to limitation and jurisdiction. could treat proceedings under section 47, C.P.C. as a suit or vice versa. It is clear that conversion though not ordered by the trial Court, could have been ordered, as the same is permissible under law.

9. Appellate decree dated 10-6-1985 was passed on a suit for declaration and permanent injunction by the petitioner whereby some reciprocal exchange of land was agreed to be made in the compromise, and discharge of respective obligations under this decree, by a fresh suit, cannot be held to be barred and my this view gets support of an earlier judgment from this Court in case of "Manzoor Ilahi" reported as 1999 MLD 901.

10. The petitioner has asserted his possession over the land in. dispute and claims that limitation will not run against him but this point being a pure question of facts and can only be determined after recording of the evidence, I refrain from determining it, but controversy regarding rejection of plaint on the basis that suit is barred by limitation, has been put to rest by the Honourable Supreme Court by giving an alighted judgment in the case of "Tariq Mehmood Chaudhary v. Najam-ud-Din" reported as 1999 SCMR 2396. In this precedent case it was held that' limitation being a mixed question of law and fact and issue with regard thereto having been framed, Courts have committed no error while rejecting the application under Order VII, rule 11 of the C.P.C.

11. Adverting to the objection of the learned counsel for the respondent that the parties to the compromise, evidenced in decree dated 10-6-1985, have not been impleaded to the suit, I find that this controversy was neither raised before the trial Court nor the revisional Court and it will be decided in a more better way if such objection is raised in the suit which will be decided, ultimately in accordance with law.

12. Other arguments of the learned counsel for the petitioner that revisional Court cannot reject the plaint, in place of the learned trial Court is also not misplaced because while hearing the revision against an order refusing to exercise the jurisdiction under Order VII, rule 11 o1 C.P.C., plaint is not before the revisional Court. It is so because where the learned trial Court did not exercise its discretion at a preliminary stage of the proceedings by dismissing the application, Fevisional Court can set aside the order, if it is bad at law and shall remit back the case for fresh decision, pointing out the defects, if any, in terms of section 115, C.P.C. This Court while deciding the case of "Mst. Balqees Begum v. Haji Ghulam Rasul" reported as 1994 CLC 2294 held that plaint cannot be rejected by the revisional Court, as suit was, not be pending before it.

13. For what has been discussed above, it is clear that judgment of the learned Additional District Judge dated 6-3-2003 impugned herein, is contrary to law declared by the Honourable Supreme Court of Pakistan in the case of "Nazir Ahmad and others" (supra) and is not in consonance with the provisions of section 47(2), C.P.C. and thus is declared to be void, illegal and of no legal consequence. This Constitutional petition succeeds and writ, as prayed, is issued, with the effect that the suit of the petitioner will be deemed to be pending and will be decided in accordance with law. There will be no order as to costs. M.A.W./M-22/L Case remanded.