2017 PLP 1767 (MLD)

IKRAMULLAH KHAN, J.

Through instant revision petition, petitioners have challenged the impugned judgment dated 15.12.2012 rendered by learned Additional District Judge-II, Swabi, whereby, the appeal filed by the petitioners against the impugned judgment dated 13.6.2012 of learned Civil Judge, Swabi was dismissed.

2. In essence, the suit was instituted by petitioners against the respondents in respect of suit property, duly mentioned in the heading of the plaint, measuring 7 Kanal and 18 Marla in the Court of learned Senior Civil Judge, Swabi, which was entrusted to learned Civil Judge-IV, Swabi for disposal. Respondents were summoned and accordingly, they appeared before the learned Trial Court. They filed an application under Order VII Rule 11, C.P.C. for rejection of the plaint. The learned Trial Court, after hearing both the parties, accepted the said application and rejected the plaint through the impugned judgment dated 13.6.2012. Appeal against the said impugned judgment also dismissed on 15.12.2012. Hence, the instant revision petition.

3. Learned counsel for petitioners contended that impugned judgments of both the courts below are against law and facts on record. He went on to say that before passing the impugned judgments, learned courts below were required to place on record the judgments/orders of revenue hierarchy on the basis of which the suit as well as appeal of the petitioners was dismissed but both the courts below did not place on record any such document in respect of the suit property, hence, have committed gross illegality and material irregularity by rejecting the plaint of petitioners under Order VII, Rule 11, C.P.C.

4. On the other hand, learned counsel for respondents while strongly opposing the contentions of learned counsel for petitioners contended that learned Courts below after proper appreciation of law and facts of the case have rightly returned the plaint to the petitioners under Order VII, Rule 11, C.P.C.

5. I have heard the arguments advanced by learned Counsel for the parties and have also gone through the record with their valuable assistance.

6. Perusal of record reveals that the suit property had been allotted to respondents in consolidation proceedings and in this respect Mutation No.445 had already been attested on 21.9.1980. The record further depicts that the ibid mutation was challenged by the petitioners before the concerned Civil Court but failed to obtain any favourable order. The respondents applied to the concerned Collector for possession, whereafter, attestation of mutation and the same application was contested by the petitioners' upto the highest forum in revenue hierarchy provided under the West Pakistan Consolidation of Holdings Ordinance, 1960. The record further reveals that after dismissal of the review petition filed by the petitioners by the SMBR on 15.6.2011, the District Collector resumed the proceedings in the matter and in order to hand over the possession to the respondents, thereby, issued warrant of possession, which has been questioned by the petitioners before the learned Civil Court. This fact has not been denied by the petitioners that the suit property had not allotted to the respondents in consolidation proceedings held somewhere in 1967. The same proceedings were challenged by the predecessor in interest of the petitioners in different forums, despite the fact, that the matter has already been finalized and concluded by a competent forum. Now the petitioners had once again made disputed the suit property by filing a declaratory suit in the Civil Court. Section 18 of the Consolidation of Holdings Ordinance, 1960 provides a summary procedure for delivery of possession to a person, who had already been held entitled for a particular holding, which read as under:-- Section-18.Right of land-owners, tenants and persons affected in newly allotted holdings and tenements.

The land-owners, tenants and other persons affected by the scheme of consolidation shall be entitled to possession of the holdings and tenements allotted to them under the scheme and the Consolidation Officer, shall by an order, direct that they be put in possession thereof from such date after the final confirmation of the scheme, as may deem expedient, and for this purpose he shall have all the powers of the Collector.

7. Similarly, Section 18-A of the ibid Ordinance provides summary ejectment of a person occupying or in possession of any holding, which read as:-- Section-18-A. Summary ejectment.

Any person occupying or in possession of any holding or tenement including in the Consolidation Scheme :- (a) the right of occupation of which has been allotted to any landowner, tenant or other person, under the Consolidation Scheme; or (b) possession of which has not been authorized by the Consolidation Officer under the Consolidation Scheme; may, after being given a reasonable opportunity of showing cause against such action, be summarily ejected by the Consolidation Officer with the use of such force as may be necessary : Provided that no person shall be so ejected earlier than the date mentioned in the order made under Section 18.

8. As already discussed hereinabove, the predecessor in interest of petitioners had contested the consolidation proceedings, whereby, the suit property came into ownership of the respondents and in this respect, Mutation No.445 had also been sanctioned. In view of section 26 of the ibid Ordinance, the jurisdiction of Civil Court is barred and the Civil Court shall not entertain any suit or application against the orders passed by the concerned Revenue Officer during course of consolidation. However, the Ordinance (supra) provides procedure to challenge any order passed by the revenue officer during course of consolidations in appeal, revision as well as review, which remedy has already been availed by the petitioners before the proper forums. The plaint shall be rejected under Order VII, Rule 11, C.P.C. in the following circumstances:-- (i) Where the plaint does not disclose a cause of action; (ii) Where the relief claimed is under-valued and the plaintiff on being required by the court to correct the valuation within a time to be fixed by the court, fails to do so; (iii) where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the court to supply the requisite stamp-paper within a time to be fixed by the court, fails to do so; (iv) where the suit appears from the statement in the plaint to be barred by any law.

9. The contention of learned Counsel for petitioners was that both the learned Courts below have dismissed the suit as well as appeal without bringing on record the documents on which the respondents had placed reliance is misconceived. The copies of relevant judgments had already been placed on record by the respondents, which fact has not been denied or challenged by the petitioners that the same judgments and orders were not in respect of the suit property and in such state of affairs, the facts are admitted by both the parties then recording of evidence in such like matters is not the requirement of law. It is also not the theme and logic of law that parties to be allowed to approach different forums one way or the other in respect of the same cause of action which has already been entertained and decided by a competent court of law. The matter in dispute has already been resolved by a competent forum, which cannot be re-agitated in Civil Court because the matter has already attained finality and has become a closed chapter.

10. For the reasons discussed hereinabove, instant revision petition along with CM is without any substance stands dismissed accordingly. ZC/91/P Revision dismissed.