2003 PLP 824 (MLD)

NAZIR AHMAD SIDDIQUI, J.

Muhammad Taseen son of Abdul Rasheed, transferred the suit-land (detailed in the plaint) to his daughters Mst: Sughran, Mst. Surayya and Mst. Razia (hereinafter called the respondents) by way of gift vide Mutation No.6442/dated 4-12-1995. He breathed his last on 15-2-1999. After his death, plaintiff Farzand Ali (hereinafter called the appellant) challenged this mutation by filing a suit of declaration on 24-4-2000. It is stated in the plaint that the said Muhammad Taseen died without leaving a mate issue and he being maternal uncle of the deceased was also entitled to inherit the suit-land alongwith the defendants (now the respondents) who got the impugned mutation attested in their favour in a clandestine manner, depriving him of his Sharaee share" thus the same being based on fraud and contrary to law and fact is liable to be set aside. During pendency of suit, respondents moved an application under Order VII, rule 11, C.P.C. for rejection of the plaint on the, basis of facts narrated therein. This application was allowed by the learned trial Court vide its order dated 31-3-2001 resulting in rejection of the plaint. Hence, this R.F.A. by the appellant (plaintiff).

2. Learned counsel for the appellant vehemently argues that for rejecting a plaint nothing beyond the contents of the same can be looked into as is also evident from the language used in rule 11 of Order VII, C.P.C. In the instant case, learned Civil Judge has accepted the version of the respondents incorporated in their application moved under the said provisions of law as a gospel truth and on the basis thereof the plaint was wrongly rejected. Such a course being patently unlawful cannot be allowed to be perpetuated and the instant appeal merits acceptance by setting aside the impugned order and the decree and the case be remanded to the learned trial Court for a decision afresh after providing an opportunity to the parties to lead evidence in support of their pleas.

3. We have considered the submissions and minutely perused the record sent by the learned trial Court pursuant to our order; dated 2-4-2002.

4. There is no cavil to the proposition that a plaint can be rejected if the contents of the same do not disclose a cause of action or on the face of it, suit is barred by any law or if the plaintiff fails to correct the valuation of the suit or to supply requisite stamp paper for the court-fee within time given by the Court. However, it is also equally true that "besides averments made in the plaint, other material available on the record which on its own strength was legally sufficient to completely refute the claim of plaintiff, can also be looked into for the purpose of rejection of the plaint". Reliance can safely be placed on 2002 SCMR 338 (S.M. Shafi Ahmad Zaidi through Legal Heirs v. Malik Hassan Ali Khan (Moin) through Legal Heirs).

5. In the instant case, we have noticed the following facts, which could neither be denied nor refuted:-- "That earlier the appellant had filed a suit for declaration against the said-Muhammad Taseen (father of respondents and others in the Civil Court Ali Pur, vide Civil Suit No.276 dated 1-9-1992. In that plaint it was alleged that one Abdul Hakeem had three sons namely Abdur Rasheed, Sher Muhammad and Farzad Ali (present appellants). Abdul Rashid father of Muhammad Taseen had expired while coming to Pakistan in the year 1947 and said Abdul Hakeem died in 1955 leaving behind two sons only i.e., Sher Muhammad and Farzand Ali (present appellant) who were rightly entitled to inherit the property of the deceased but said Muhammad Taseen in connivance with the Revenue Staff also got transferred the property of the deceased (Abdul Hakeem) in favour of his father Abdul Rasheed allegedly showing him to be alive at that time alongwith said Sher Muhammad and Farzand Ali (present appellant). This mutation of Inheritance (No. 12 dated 30-4-1955) of said Abdul Hakeem was challenged through that suit which was dismissed with costs of Rs.25,000 and compensation of Rs.5,000 under section 35-A, C.P.C. was also awarded vide judgment and decree dated 5-11-1995 of the learned Civil Judge, Ali Pur. The appellant filed an appeal against the same. In the meanwhile, said Muhammad Taseen transferred the suit-land to his daughters (present respondents) vide Mutation No.7011 dated 16-11-1995 and the impugned Mutation No.6442 dated 4-12-1995, therefore the appellant through an application dated 23-9-1996 sought permission to implead them to the said appeal in the array of respondents. Relevant para. of said application is reproduced hereunder:-- He has nowhere pleaded at all that the said mutations were either contrary to law or without lawful authority or based on fraud. (It is pertinent to note that in the suit now filed by him on 19-4-2000 it is stated by him that he got the knowledge of impugned mutation a couple of months ago. This indicates that how bold he is to tell a lie). Present respondents have been impleaded and the present appellant accordingly filed amended memo. of appeal. The learned Additional District Judge Ali Pur vide his judgment and decree dated 10-12-1996 dismissed the appeal. The present appellant challenged the same through Civil Revision No.161-D of 1997 in this Court which was dismissed in limine by a learned Judge of this Court vide judgment dated 13-3-1997 and the honourbale Supreme Court maintained the same by dismissing C.P.L.A. No.615-L of 1997 filed by the present appellant refusing to grant the leave vide order dated 21-4-1999, copy of which has also been appended with the instant appeal as Annex. B at page

13. On a Court question learned counsel without controverting this state of affairs simply stated that the previous litigation was mainly against the deceased Muhammad Taseen, father of present respondents and attestation of the impugned mutation had given a fresh cause of action to the appellant to institute the instant suit. This argument is not only misconceived but also not even worth consideration on the premises of law and facts.

6. We have also noticed that the present appellant got registered a case vide F.I.R. No.126 of 1999 dated 7-3-1999 under sections 302, ,148/149, P.P.C. Police Station Qadirabad wherein allegation for murder of Muhammad Taseen was levelled against Zulfiqar Ahmad (husband of Mst. Sughran Bibi) and his father Muhammad Saleem. Present appellant also moved art application to the District Magistrate Mandi Bahauddin for exhumation of dead body of Muhammad Taseen, but the same was dismissed vide order, dated 11-3-1999. This order was challenged by the present appellant through Writ Petition No.6465 of 1999 and a learned Judge of this Court dismissed the same vide order dated 11-4-1999. It would not be without significance to reproduce certain observations of the learned Judge:-- "Aforesaid resume demonstrates that Farzand, the petitioner, by collusive acts is out to harm three daughters. Out of whom Mst. Sughran who is married to Zulfiqar Ahmad has got no complaint against her husband. The other two daughters are yet to be married. All this drama is being played by the petitioner not only to grab the landed property left by the deceased but also to secure two daughters namely, Mst. Razia and Mst. Surrayya in his clutches. If this mala fides litigation 'is not arrested with heavy hands, the writ petition with his nefarious designs would go on damaging the cause of the three ladies. I am fortified in forming this view by the fact that he first tried to get two daughters and went to the extent of confining all the three, in an illegal manner. They secured their release by filing habeas corpus. Thereafter, he manoeuvred registration or F.I.R. against Mst. Sughran's husband and her father-in-law.

. I dismiss this writ petition in limine and impose a cost/fine of Rs. one lac upon petitioner which shall be recovered as arrears of land revenue. It would be paid to three daughters after its recovery. " On a Court question learned counsel also conceded the recovery of respondents from the unlawful custody of present appellant through a habeas corpus petition under section 491, Cr.P.C. (Criminal Miscellaneous No.234-H of 1999) and also filing of the said writ petition and its dismissal with costs/fine of Rs.1,00,000 (one lacy, but the learned counsel also maintained that the honourable Supreme Court while entertaining a Petition (No. 1150-L of 1999) to the extent of the fine/costs stayed recovery of the same in the meantime vide order dated 12-8-1999. However, he is obliged to re-concede this state of affairs.

7. In the presence of the above, un-refuted/admitted facts, we feel no hesitation to hold that the present appellant after having been unsuccessful getting served his evil designs (aimed at harming the respondents and depriving them of the suit property gifted to them by their father in lawful manner) even up to the level of the superior Courts, has re-started a fresh round of litigation by filing the instant suit on 19-4-2000, without having any just cause of action.

8. A Court is not absolved of its judicial obligation to bury a suit at its inception, particularly a suit for equitable relief under the Specific Relief Act, if it comes to the conclusion after considering the admitted facts or the facts which cannot be disputed/refuted even without holding factual enquiry or requiring further evidence that the suit must fail. It is not only the requirement of law and justice but also "it is in the interest of the litigating parties and the judicial institution itself. The parties are saved with their time and unnecessary expenses and the Courts get more time to devote it for the genuine cause". (Ref.: 2002 SCMR 338).

9. In our considered view the learned trial Court has rightly non -suited the appellant on a due appreciation of law and facts, vide its impugned judgment and the same is also in furtherance of the ends of justice. Resultantly, the instant appeal stands dismissed in limine. H.B.T./F-130/L Appeal dismissed.