P L D 1998 Quetta 7 (PLP)

Through this revision petition under section 115, C.P.C. the propriety and legality of the impugned judgment and decree dated 27-2-1997 passed by the Majlis-e-Shoora, Kalat Division Mastung to the extent of permission accorded to the respondent to file a fresh suit on the same cause of action within the prescribed period of limitation, has been challenged despite of the fact that the suit earlier filed has been dismissed by the same judgment. Briefly, the stated facts of the case are that on 31-3-1996 the respondent filed suit for declaration and permanent injunction against the petitioner in the Court of Qazi Sarawan at Mastung stating therein that the respondent and the petitioner have deep rooted relations of friendship in consideration whereof, the petitioner allegedly agreed to surrender on royalty basis possession of leases Nos. 18, 6, 7, B4, A16 and 13 for a period of thirty years on the basis of an oral agreement pursuant whereof the respondent would be liable to pay the royalty at the specified rates. It has further been averred in the plaint that the petitioner is allegedly trying to interfere into the peaceful possession of the respondent in respect of the abovementioned leases and intend to forcibly dispossess the respondent from the said areas of the lease. The petitioner contested the suit on legal grounds as well as on merits by filing written statement and rejoinder to the application, filed by the respondent under Order 39, Rules I and 2 read with section

115. The learned trial Court out of the pleadings of the parties framed the issues and thereupon the parties led their respective evidence. The respondent in support of his case gave I have heard the learned counsel for the parties at length in support of their respective contentions. The learned counsel for the petitioner contended that since the suit of the respondent was dismissed by the Majlis-e-Shoora and the impugned judgment and decree of the trial Court was set aside, therefore, the learned Majlis-e-Shoora was not competent to have had observed that the respondent if so desired may file a fresh suit within the period of the limitation. According to the learned counsel for the petitioner the observations so made are absolutely illegal, void and without jurisdiction and totally unwarranted in the circumstances of the case. Controverting the arguments put forth on behalf of the petitioner, the learned counsel for the respondent submitted that since the learned Majlis-e-Shoora came to the conclusion that the suit was defectively formulated which could not proceed in accordance with law and there were formal defects in the plaint, therefore, in such view of the matter the learned Majlis-e-Shoora was competent under the law to have had permitted the respondent to file fresh suit on the same cause of action within the period of limitation. According to the learned counsel since in such suit favourable decree was passed as prayed for in the plaint/hence on account of the formal defects the his statement before the Court, whereas; the petitioner's attorney got recorded his statement on his behalf. The learned trial Court i.e. Qazi Sarawan decreed the suit of the respondent vide judgment and decree dated 14-12-1996. The petitioner being aggrieved and dissatisfied from the decree of the learned trial Court filed appeal before the Majlis-e-Shoora, Kalat at Mastung (Appeal No. 119 of 1996) on 22-12-1996. The learned Majlis-e-Shoora vide its judgment and decree dated 27-2-1997 accepted the appeal filed by the petitioner and set aside the judgment and decree of the Qazi Sarawan and also dismissed the suit of the respondent with the observations that the respondent is at liberty to file a fresh suit' against the petitioner within the period of the limitation. The petitioner being aggrieved to the extent of the permission/observations made in the impugned judgment whereby option was given to the respondent to file fresh suit within the prescribed period of limitation, has assailed the same in the instant petition. For reference and convenience the concluding part of the impugned judgment is reproduced below:-- decree of the trial Court was set aside and the suit was dismissed and accordingly the Majlis-e-Shoora competently in such circumstances permitted respondent to file fresh suit. The learned counsel further submitted that the observation made by the Majlis-e-Shoora impugned in the instant revision does not form part of the appellate decree, therefore, the same is immune to be challenged by way of revision. The learned Counsel candidly submitted that the appellate Court enjoys the same powers as are vested in the trial Court for permitting the plaintiff to file fresh suit on the same cause of action within the meaning of Order 23(2), C.P.C. The learned counsel for the respondent to support his contentions placed reliance on the reported judgments i.e. Siddique Khan and 2 others v. Abdul Shakoor Khan and another PLD 1984 SC 289 and Chairman, Municipal Committee, Muzaffarabad and another v. Habibullah PLD 1987 Azad J&K

135. I have, considered the contentions of the learned counsel for the parties in the light of the available record inclusive of the impugned judgment in the light of the relevant provisions of the law. The learned Majlis-e-Shoora did not confine itself to the legal issues framed in the suit i.e. issues Nos.5, 6 and 7 reproduced hereunder: 'Issue No.5 Whether the suit is hit under Order 7, Rule 11?. Issue No.6 Whether any cause of action accrued to the plaintiff? Issue No.7 Is it a fact that the plaintiff is out of possession of the lease and the suit is hit under section 42 of the Specific Relief Act?" But the learned Majlis-e-Shoora considered and assessed the evidence on merits as well in the light of the issues struck on merits of the case and finally the learned Majlis-e-Shoora vide impugned judgment and decree set aside the decree of the learned trial Court dated 14-12-1996 and dismissed the suit of the respondent thereby permitting the respondent to file fresh suit within the period of limitation. During the course of the arguments the learned counsel for the respondent submitted that pursuant to the permission accorded by the Majlis-e Shoora suit has already been filed by the respondent against the petitioner which has been decreed ex parte against the petitioner; which fact has been confirmed by the counsel for the petitioner who submitted that the petitioner was not served with the notice of the subsequent suit, however; upon having obtained knowledge of such fact application for setting aside ex parte decree has been filed in the Court which is pending decision. In any case if the Majlis-e-Shoora had come to the conclusion that the suit cannot proceed on account of any formal defect in the plaint it should have either rejected the plaint on any of the grounds if available within the meaning of Order 7, rule 11 and if such a defect did not fall within the categories enumerated in Order VII, rule 11, the Appellate Court could have justifiably called upon the plaintiff to carry out the necessary amendments in the plaint by formulating it in consonance with the requirements of plaint within the meaning of Order VII, C.P.C. Surprisingly, the Majlis-e-Shoora set aside the findings on legal issues Nos.5 to 7 recorded by the learned trial Court but did not record its own findings on such issues. The contentions of the learned counsel for the respondent are without any substance that the appellate Court was competent to dismiss the suit on merits as well as on account of the suit being defectively formulated and to simultaneously allow the plaintiff to file a fresh suit on the same cause of action. It is not evident from the impugned judgment as to how and for what reasons the suit was not capable` to adjudication; in case the suit was, hit under any of the paragraphs of rule 11, Order VII, the plaint in such a case could be rejected which precludes the Court to decide such a suit on merits;. the powers under Order XXIII, Rule (2), C.P.C. cannot be exercised suo motu by a Court to permit plaintiff to file a fresh suit unless the plaintiff satisfies the Court that the suit must fail by reason of some formal defect (to be disclosed) or that there are sufficient reasons for allowing the plaintiff to institute a fresh suit for the subject-matter of the suit or to a part of claim, the Court may on such terms as it thinks fit grant permission to the plaintiff to withdraw from such suit or abandon such part of a claim, with liberty to institute fresh suit in respect of the subject- matter of such suit or such part of a claim. - The permission to file fresh suit suo motu by the Court for the subject matter of an earlier suit cannot be granted unless within the scope of Order XXIII, Rule (2), C.P.C. the pre-requisites for such permission are existing. The plaintiff before the appellate Court i.e. Majlis-e-Shoora never applied for the withdrawal of the suit with permission to file a fresh suit, therefore, the exercise of such powers by the Court on its own was at all not permissible being in violation of rule (2) of Order XXIII, C.P.C. and as such exercise of the powers by the appellate Court were not available to the Court in the circumstances of the case. Notwithstanding the permission granted to the plaintiff for filing fresh suit, the judgment and decree has been passed on two-fold conflicting grounds i.e. the suit is not capable of adjudication as well as it failed on merits. The petitioner has challenged only a part of the appellate judgment whereby permission was accorded to the plaintiff for filing fresh suit but the judgment and decree itself is not sustainable on account of mutually destructive grounds. The case law cited by the respondent's counsel are of no avail to the facts and. circumstances of the instant matter. The learned appellate Court as above discussed has acted with material irregularity and illegality, inasmuch as; exercised the powers not vested in it in the circumstance of the case by dismissing the suit and permitting the respondent to be at liberty to institute a fresh suit vide judgment and decree dated 27-2-1997. For the foregoing reasons the judgment and decree dated 27-2-1997 passed by the Majlis-e-Shoora Kalat Division at Mastung in Civil Appeal No. 119 of 1996 is set aside and consequently the appeal preferred against the decree of Qazi Sarawan dated 14-12-1996 shall be deemed as pending before the Majlis-e-Shoora for rewriting of the judgment in accordance with law, after providing opportunity of hearing to the parties. The petition is disposed of accordingly, with no order as to costs. A.A./657/Q Case remanded.