2011 PLP 589 (CLC)

MUHAMMAD SAFDAR KHAN SIKANDRI, J.

A suit for declaration and pre-emption was filed by the plaintiff- petitioner in the Trial Court. Written statement was filed by contesting defendant. During pendency of suit an application under Order VII, rule 11, C.P.C. was also filed for rejection of plaint on the ground that the suit was time barred. The application was contested.

2. After hearing of arguments, the learned Trial Judge on 30-1-2006, rejected the application by holding that the same is premature. This order was challenged in Revision Petition before the learned Additional District Judge, D.I. Khan, who vide order dated 18-4-2007 by accepting application of defendant set aside the impugned order of the Trial Court and dismissed the suit of plaintiff.

3. The said order passed by the learned Additional District Judge on 18-4-2007, has been assailed in this Writ Petition under Article 199 of Constitution of Islamic Republic of Pakistan, 1973.

4. Learned counsel for the parties heard and record on file perused in the light of it.

5. Learned counsel for petitioner argued that the revisional Court has wrongly set aside the order of learned Trial Judge on misinterpreting the principle of natural justice as well as deprived the petitioner from the right to produce evidence.

6. On the other hand the stand of learned counsel for the respondent is that in the main suit declaration has also been sought in respect of disputed mutation by taking plea that in fact the same was not entered on the date and that the date was fraudulently altered by the Revenue Officers in collusion with the parties concerned.

7. We have gone through the record with the help of arguments of learned counsel for the parties.

8. Application filed by the respondent-defendant is available on file. The application is under Order VII, rule 11, C.P.C. It is stated therein that mutation was attested on 23-4-2002 and according to date of attestation the suit is time-barred, which is liable to be rejected as such. If we peruse the plaint, it reveals that the plaintiff has challenged the disputed mutation bearing No.1953 on the basis of fraudulent alteration of the date back dated in order to defeat the right of plaintiff on the ground of limitation. Since in this suit the very date of attestation is impugned and challenged by the plaintiff. The question of alteration of date fraudulently by the Revenue Officer and the parties concerned, is question of fact which needs recording of evidence by the parties to the alleged fraud and also evidence in rebuttal by the defendants/officers/ officials. The decision of revisional court on application, it seems to be based on surmises and conjectures, the reason is that as stated above the question of fraudulently alteration of date of attestation is involved which is also the major claim/prayer in the very suit. Thus being so it need evidence because court cannot reach to a correct conclusion about the allegation regarding the alteration of date of attestation.

9. The learned counsel for the respondent referred to judgment of this court dated 28-2-2006 in Criminal Appeal No.40 of 2004 and according to him the matter has been decided upon at the level of High Court.

10. We have perused the judgment of this court which is given in the matter of complaint filed by the petitioner against the concerned complainant under sections 467/648/471/420/427/24, P.P.C. That the case was criminal complaint, while matter before us is of Civil Nature involving declaration and pre-emption rights of the parties. In our opinion unless there is evidence no conclusion can be drawn.

11. The result of our above discussion is that we accept the petition, set aside the judgment of revisional Court and remand it back to the Trial Court with the direction to record .evidence and after recording necessary evidence decide the application under Order VII, rule 11, C.P.C. which would be deemed to be pending. Parties are left to bear their own costs. S.A.K./45/P Case remanded.