2003 PLP 121 (SCMR)

Imtiaz Ali, Additional Advocate‑General, N:‑W.F.P. for Respondents Nos.30 to

33. Date of hearing: 18th September, 2002. ABDUL HAMEED DOGAR, J.‑‑This appeal by leave of the Court is directed against the judgment dated 30‑1‑1994 of the Peshawar High Court, Abbottabad Bench, Abbottabad, passed in Writ Petition No.55 of 1993 whereby the same was dismissed in limine.

2. The facts leading to the filing of the instant appeal are that the appellant filed suit for declaration and permanent injunction for his personal right in the Court of Senior Civil Judge, Mansehra against respondents Moulvi Shams‑ud‑Din and others wherein he claimed that the suit land, Shrine, Mosque and Madrissa of Ziarat Qutab Shaheed Baba is Waqf property of Ziarat Qutab Shaheed Baba and he is only its "Mujawar" and "Mutawali". The respondents have no right and authority to interfere with its management and also had no concern of whatsoever nature with its administration and other affairs. The appellant also sought declaration therein that the certificate of registration of a so‑called Madrissa known as 'Madrissa Arabia Jawahar‑ul‑Qur'an Jatnia Masjid Qutab Shaheed Garhi Habibullah' showing a so‑called Administration Committee of the respondents be declared to be against law, facts, collusive, mala fide and ineffective upon his rights. He also prayed that the respondents be restrained permanently from interfering into the affairs and the management of the Ziarat. According to the plaint, it was the appellant who got constructed mosque and bore all expenses through income of the Ziarat of Qutab Shaheed Baba and had been performing the functions of its Mutawali since his forefathers.

3. Respondents Nos.2 to 23 contested the suit and filed written statement. They raised preliminary objection that the suit is barred by law, as no prior permission from Advocate‑General to file the same as required under section 92, C.P.C. was obtained by the appellant.

4. However, the said application was dismissed vide order, dated 30th September, 1991 by the trial Court. The civil revision filed by the respondents challenging the above order was accepted by the learned Additional Sessions Judge, Mansehra on 15‑7‑1993 and as a result whereof plaint of the appellant was rejected under Order VII, rule 11, C.P.C. This order was challenged through Writ Petition No.55 of 1993 before the Peshawar High Court, Abbottabad Bench, Abbottabad and the same was upheld by the learned Division Bench vide judgment dated 30‑1‑1994.

5. This Court granted leave to appeal to consider, inter alia, the plea as to whether the Courts below were not competent to reject the plaint without 'adverting to the mandate given to them under Order VII, rule 11, C.P.C. Inasmuch as the ingredient mentioned therein were not attracted to the case in hand.

6. We have heard Mr. Muhammad Munir Paracha, learned Advocate Supreme Court appearing for the appellants and Mr. Imtiaz Ali, learned Additional Advocate‑General, N.‑W.F.P. on behalf of respondents Nos.30 to 33 at length and have gone through the record and the proceedings of the case in minute particulars.

7. Mr. Muhammad Munir Paracha, learned Advocate Supreme Court., mainly contended that the learned revisional Court as well as the learned Peshawar High Court have erred in law and exceeded their jurisdiction by allowing instant application while treating the same as an application under Order VII, rule 11, C.P.C., rejected the plaint and dismissed the suit of the appellant. According to him, there was sufficient evidence to show that the appellant was hereditary administrator of the shrine and was working as Mujawar and Mutawali since long and it was during 1971, the foundation stone of the mosque was laid down by the then S. H. O. and no one interfered in the administration of the appellant's affairs. According to him, the permission under section 92, C.P.C. to institute the suit was not required in this case as his case did not fall within any of its ambit. He lastly contended that the plaint can only be rejected, if any one of the provisions of Order VII, rule 11, C.P.C. are attracted and it cannot be rejected merely on the objections filed by the respondents in its rebuttal.

8. The learned Additional Advocate‑Genera, N.‑W.F.P., supported the arguments of the appellant's counsel and stated that both the Courts below while rejecting the plaint had travelled behind the scope of Order VII, rule 11, C.P.C.

9. In order to arrive at a proper decision, as to whether the plaint discloses cause of action or not, a glance is made on its contents and the pleas raised therein.

10. On its perusal, the plaint reveals that the appellant has filed the suit in his personal capacity for his personal right and for a declaration and permanent injunction being 'Mutawali and 'Mujawar' of Ziarat Qutab Shaheed Baba. It is no where mentioned that there existed any trust for public purposes of a charitable or religious nature, or that there was any breach of trust or that the Court was moved for getting direction for its administration. The pre‑condition for filing the suit under section 92 that it must be in a representative capacity on behalf of the public and not for the interest of the person of any individual has also not been established by the respondents as such it is not barred by law. On the other hand, the respondents had failed to point out that the suit is hit by any clause of Order VII, rule 11, C.P.C. and did not disclose any cause of action. Since both the Courts below had exceeded their jurisdiction, thus their findings are not warranted by; law and are liable to be set aside.

11. For what has been discussed above, we find sufficient force in the contentions raised at the bar, therefore, the appeal' is allowed and the impugned order of the learned Peshawar High Court dated 30‑1‑1994 and that of the revisional Court dated 15‑7‑1993 regarding rejection of the plaint are set aside whereas the suit of the appellant is restored to its original position, but no order as to costs. Q.M.H./M.A.K/M‑679/S Appeal allowed.