2012 PLP 1503 (CLC)

QAISER RASHID KHAN, J.

Aggrieved from the concurrent findings of the learned lower courts dated 4-1-2010 and 24-2-2011 passed by the learned Civil Judge-III D.I. Khan and learned Additional District Judge-VI D.I. Khan respectively, the petitioner, namely, Haji Lal Shah, has questioned the same through the instant revision petition.

2. Facts of the case in brief are that the petitioner purchased land measuring 436 kanals, 14 marlas situated in Mauza Ramak D.I. Khan from Mst. Surraya Begum, vendor for an ostensible sale consideration of Rs.1,36,374/-, but in order to avoid any pre-emption suit mutated the said property vide Mutation No.1055 dated 26-5-1986 in the name of Allah Bakhsh, now dead and the predecessor-in-interest of the respondents, who was a co-sharer therein being a Benamidar. Thereafter, the said Allah Bakhsh transferred major portion of the said land except 193 kanals, 13 marlas to the petitioner through different mutations. Meanwhile, said Allah Bakhsh died and thus the remaining piece of land measuring 193 kanals, 7 marlas devolved upon his legal heirs, i.e. respondents vide inheritance Mutation No.3126 dated 9-8-1998. The petitioner repeatedly asked the respondents to transfer the said land in his name but in vain and hence the suit for declaration-cum-perpetual injunction etc; against the respondents before the learned trial court.

3. The suit was in its very initial stage and no material had been brought on record when on 17-11-2009, the respondents applied to the learned trial court for its dismissal on the basis of alleged agreement deed dated 22-10-2008 executed between the parties. The petitioner resisted the said application by filing replication thereto. The learned trial Judge by invoking the provisions of Order VII, Rule 11, C.P.C. rejected the plaint vide order and decree dated 4-1-2010. Feeling aggrieved, the petitioner assailed the said order through an appeal but in vain as it was dismissed by the learned Additional District Judge-VI. D.I. Khan vide judgment and decree dated 24-2-2011, hence this petition.

4. Learned counsel for the petitioner vehemently challenged the findings of both the learned courts below, inter alia, on the ground that the same are against law, facts and material available on record. He argued that the impugned orders are premature and merit outright reversal because no evidence had yet been adduced by either side which amounts to unheard condemnation of the petitioner, whereas equity and justice demands that no one should be condemned unheard. He submitted that through the alleged agreement deed dated 22-10-2008 which he strongly disputes, the respondents/defendants have in a way accepted some dispute between the parties, but still no opportunity was afforded to the petitioner to prove his genuine claim through evidence. He contended that the transfer of the major portion of the land except the suit-land measuring 193 kanals, 7 marlas by late Allah Bakhsh in favour of the petitioner by way of gift mutations is the tell-tale fact that the said Allah Bakhsh was the Benamidar of the petitioner which the learned lower courts have failed to take into consideration. According to the learned counsel, the suit was well within time and not hit by the provisions of Order II, Rule 2, C.P.C. read with Order-VII, Rule 11, C.P.C., because after the death of Benamidar Allah Bakhsh, the respondents in the year 1998 transferred the suit-land in their favour through inheritance Mutation No.3126 dated 9-8-1998. The petitioner repeatedly asked them to transfer the disputed land in his name but when the respondents ultimately refused to do so, the suit was instituted on 29-7-2009. He, therefore, urged that the impugned findings of both the leaned two courts below are the result of misreading/non-reading of evidence and thus are liable to be set at naught by this court.

5. On the other hand, learned counsel for the respondents defended the impugned judgments and orders of the learned lower courts on the grounds that they suffer from no illegality and thus the plaint was rightly rejected. The learned counsel argued that the suit was filed by Lal Shah through his special attorney Abdul Karim vide special power of attorney dated 18-7-2009 which had been cancelled and challenged by the petitioner to be fraudulent. His submission was that the petitioner had earlier too, filed two suits of the same nature which were subsequently withdrawn on 20-4-2004 and 27-4-2004, meaning thereby that he was fully aware of the facts of the present case but failed to sue the respondents for the reasons best known to him. The learned counsel thus argued that no interference is required in the impugned concurrent findings of the learned lower courts.

6. Arguments heard and record perused.

7. Perusal of the record shows that the impugned orders have been passed in a very hasty manner as no evidence had been adduced by either side at that time. It is the golden principle of law that cases should be decided on merits and in accordance with law after recording pro and contra evidence of the parties and technicalities should be avoided. Admittedly, no evidence had yet come on surface when the provisions of Order VII, Rule 11, C.P.C. read with Order II, Rule 11, C.P.C. were invoked by the learned lower courts while rejecting the suit of the petitioner.

8. Through his suit, the petitioner/plaintiff had sought declaration cum-permanent injunction against the respondents. The petitioner along with his plaint had brought on record the photocopy of Mutations No.2157 dated 4-6-1992 and, No.2909 dated 27-2-1997 whereby property measuring 243 kanals and 1 marla was transferred by Allah Bakhsh, predecessor-in -interest of the respondents in favour of the petitioner/plaintiff out of total area measuring 436 kanals, 14 marlas which the petitioner alleged to have purchased from Mst. Surraya Begum vide Mutation No.1055 dated 26-5-1986. It was after the death of Allah Bakhsh that inheritance Mutation No.3126 was attested on 8-9-1998 in favour of the respondents in respect of 193 kanals, 7 marlas which is the bone of contention between the parties. Even in the very application for rejection of the plaint filed by the respondents, a sum of rupees one million is alleged to have been received by the petitioner by way of settlement in respect of the suit property and in this respect an agreement deed dated 22-10-2008 has been brought on record which the petitioner strongly disputes. Both the courts below have relied on the said agreement as well as on two other suits filed by the petitioner but subsequently withdrawn. Strangely enough, the copies of the said suits were never submitted by the respondents while making prayer for the rejection of plaint of the petitioner and how the same found their way to the file of the learned trial court leaves much to be desired.

9. The learned trial court has held in the impugned order that the suit was instituted by the petitioner through his attorney Abdul Kareem. On the contrary, the plaint has been duly verified by the petitioner himself and not through some attorney. From where the learned trial court gathered the said information or for that matter the presence of the alleged power of attorney is not gleaned from the available record. This was a glaring irregularity committed by the learned court. Courts of law are not supposed to be swayed by the oral submissions of the parties while rejecting plaints by invoking the provisions of Order VII, Rule 11, C.P.C. but strictly on the basis of what is brought on record with the plaint or written statement.

10. The question as to whether the plaintiff would be able to prove his case at the trial is irrelevant and cannot be considered for rejecting the plaint. In case of controversial questions of facts or law, the proper course for a court in such cases is to frame issues on such questions and decide the same on merits in the light of evidence and any departure from the same would amount to deprive a person from his legitimate right in respect of such right. In the case of Ghulam Ali v. Asmatullah, reported in 1990 SCMR 1630, the honourable Supreme Court has held that assertions made in the plaint have to be seen for the purpose of determining whether the plaint discloses any cause of action and that lack of proof or weakness of proof in the circumstances of the case does not furnish any justification for coming to a conclusion that there is no cause of action shown in the plaint. Still in another case titled Jewen v. Federation of Pakistan reported in 1994 SCMR 826, the honourable Supreme Court has held that while taking action for rejection of plaint under Order VII, Rule 11, C.P.C., the court cannot take into consideration the pleas raised by the defendants in defence, as the same are only contentions in the proceedings unsupported by any evidence on record.

11. So far as the concurrent findings of the courts below are concerned, normally the same are not interfered with in the revisional jurisdiction. However, if the courts below have committed error of law, which has caused grave injustice resulting in the miscarriage of justice itself, then the High Court does interfere while sitting in its revisional jurisdiction.

12. As a result, this revision petition is accepted, the impugned orders of both the learned lower courts are set aside and the case is remanded to the learned Civil Judge-III D.I. Khan for decision afresh on merits after affording opportunity of recording pro and contra evidence and hearing arguments of the learned counsel for the parties. The parties are directed to appear before the said court on 7-6-2012. M.H./206/P Case remanded.