P L D 2011 Lahore 548 (PLP)

AMIN-UD-DIN KHAN, J.

In this constitutional petition, the petitioner has challenged the order dated 2-12-2010 passed by Civil Judge, Class-III, Ahmedpur East and order dated 15-4-2011 passed by learned Additional District Judge, Ahmedpur East.

2. The brief facts of the case are that respondent Muhammad Ashraf filed a suit for declaration and permanent injunction against the present petitioners and respondents Nos.2 to 7 in the court of Civil Judge, Ahmedpur East. In the suit the plaintiff has challenged the transfer of land mentioned in the head note of plaint by Mst. Choto in favour of Razzaq Muhammad through Mutation of Tamleeq No.342 sanctioned on 13-12-1996. Defendants Nos.1 and 2/petitioners filed contesting written statement and defendants Nos. 3 to 8 filed a consenting written statement. Defendants Nos.1 and 2/petitioners filed application under Order VII, Rule 11 of C.P.C. for rejection of the plaint. This application was dismissed by the learned trial court on 2-11-2010 and the revision filed by the writ petitioners was also dismissed on 15-4-2011. Both these orders are under challenge in this writ petition.

3. The grounds on which the writ petitioners have sought rejection of the plaint are that when Mst. Choto is alive no cause of action accrues to the plaintiff to file the suit; secondly the plaintiff has pleaded in the plaint that defendant No.1 is lunatic (Fatar-ul-Aqal) and she has been directly impleaded as defendant No.1 without the process given in the Mental Health Ordinance, 2001, a lunatic cannot be impleaded directly; thirdly previously the suit was allegedly filed by Mst. Choto through the present plaintiff showing her to be lunatic (Fatar-ul-Aqal), therefore, the court summoned Mst. Choto and put questions on her and found her to be of sound mind; fourthly, the plaint does not show the cause of action and lastly how a suit can be filed against Mst. Choto.

4. The reply was filed by the plaintiff and he stated in reply that he had rightly challenged the impugned mutation. There was no bar in filing the suit. He further stated that he had filed the application for the constitution of the Medical Board for the medical examination of Mst.Choto.

5. Learned counsel for the writ petitioners has supported and argued in favour of the contentions made in the application and stated that the orders passed by both the courts below are against the law and facts of the case, therefore, they are liable to be set aside, whereas learned counsel for respondent has advanced his arguments on the basis of his written reply and states that both the courts below have exercised jurisdiction in accordance with law and the application under Order VII, Rule 11 of C.P.C. has rightly been dismissed and the revisional court has also exercised the powers vested in it by law.

6. I have heard learned counsel for the parties and perused the record available on the file with their able assistance.

7. This writ petition has been filed by Mst. Choto and Razzaq Muhammad. The alleged mutation was got sanctioned by Mst. Choto in favour of her son Razzaq Muhammad. Therefore, when Mst. Choto is alive, Muhammad Ashraf has no cause of action to file the suit against Mst. Choto. The plaint does not disclose the cause of action. Further, if as alleged by the plaintiff that Mst. Choto is lunatic (Fatar-ul-Aqal), in accordance with the Mental Health Ordinance, 2001 and in accordance with the procedure laid down in Order 32 Rule 15, C.P.C., Mst. Choto E cannot be directly impleaded as defendant or the suit cannot be directly filed against her without impleading her through guardian at litem. In this way also, the plaint is barred by law. At the time of considering the application under Order VII, Rule 11, C.P.C., no doubt the evidence cannot be considered at all but the admitted documents between the parties can be looked into. There is a document on file i.e. order dated 10-3-2007 whereby the previous suit was withdrawn with the permission to file fresh suit and on that date the learned Civil Judge summoned Mst.Choto in that suit and to see her mental capacity after putting the questions and their answers the learned Civil Judge came to the conclusion that she was of a sound mind lady.

8. In the light of the above mentioned position, both the courts below have ignored the legal position and while dismissing the application under Order VII, Rule 11, C.P.C. the learned trial court failed to exercise jurisdiction vested in it by law and even failed to seethe basic provisions of Order VII, Rule 11 C.P.C. Likewise the learned revisional court also failed to exercise the jurisdiction vested in it by law.

9. In the light of what has been discussed above, the orders passed by both the courts below are declared to be without lawful authority. Resultantly the application moved under Order VII, Rule 11, C.P.C. by the writ petitioners is accepted and the plaint filed by respondent No.1 is rejected. H.B.T./C-7/L?????????????????????????????????????????????????????????????????????????????????????? Plaint rejected.