1994 PLP 2345 (MLD)

Plaint in a suit for declaration-cum-permanent injunction and in the alternative for possession of a house near Darbar Doda Haqqani, based on title through inheritance brought by Ghulam Abbas son of Muhammad Bakhsh against Syed Abid Hussain Shah and others of Mohallah Doctor Jalal Hussain Shah, having been rejected under Order 7, Rule 11 of the C.P.C. through concurrent findings dated 8-9-1991 and 15-12-1991 of the trial Court and the District Judge, D.I. Khan respectively, are challenged through instant revision petition. Ghulam Abbas plaintiff claimed that the suit house was his ancestral property, to the West whereof is the property of his father and to the South is that of his brother. That the defendants once brought an ejectment petition before the Rent Controller against Muhammad Bakhsh and Muhammad Mukhtar the father and brother of the present plaintiff in which their ejectment was ordered by the Rent Controller on 11-1-1990. That appeal before the District Judge on 3-9-1990 and a writ petition before the High Court on 12-11-1990 were dismissed and subsequently through execution proceedings the possession of the house was also taken on 11-12-1990 from the Judgment debtors.

3. That as the possession of the house of the plaintiff disputed in the instant case was also taken during such execution proceedings, therefore, Ghulam Abbas plaintiff brought an objection petition which was dismissed and hence this suit.

4. There is a long history of litigation over the present property which was referred to in detail by the defendant in his written statement wherefrom it transpires that Muhammad Bakhsh, the father of the present plaintiff had brought a Suit No.95/1 against the present defendants in the year 1985, claiming himself to be a ' Mutawalli' but on 26-6-1986 the suit was dismissed as withdrawn unconditionally. Again Suit No.41/1 of 1989 was also brought on the same property in which the plaint was rejected by Civil Judge, D.I. Khan on 3-5-1989. Appeal before the District Judge and revision before the High Court failed on 3-10-1989 and 8-12-1990 respectively. The two Courts below have held that the present house is a portion of the larger house which was a subject matter of litigation between the parties and hence the present suit brought after five years in the year 1990 is a clear collusion between the father and his son.

5. All the copies of judicial record relating to the previous litigation between the father and brother of the plaintiff and the defendants are placed on the original file in addition to the fact that all the files in original are also requisitioned for proper appreciation of correct judicial history of the case. The site plan of the house on original file No.41/1 of 1989 is placed on record while the original also was perused. When one makes a comparison of the present site plan with the previous one, one finds to the utter amazement that the present three rooms are, practically carved out of the previous site plan as if with the help of razor blade. By picking up a small portion of the previous house, the plaintiff happens to lay his claim thereon saying that he was not made a party to the previous litigation and that he was not bound by the site plan submitted in the previous suits by his father Muhammad Bakhsh. This is really interesting that on the one hand the plaintiff claims to be not bound by the conduct of his father and on the other hand he claims it to be a property flowing down through the forefathers. The perusal of the plaint, its Annexures as well as the documents annexed to the written statement would suggest unavoidably that the plaintiff has brought a suit by carving out some portion of the same property which his father and brother had already lost and of which his father claimed to be a ' Mutawalli' only.

6. His real father and real brother are locked into litigation over a large constructed property for the last many years and a last attempt to save the loss of possession was made in the shape of objection petition by the present plaintiff that also failed. The fact that any new construction is done by the plaintiff is also negated by an undertaking dated 26-1-1988 during the previous suit whereby the father and brother of the plaintiff had admitted to have had done no improvement at all.

7. The learned counsel for the petitioner/ plaintiff raised an apparently correct objection that in the instant case all the pleas taken by the defendant required the recording of evidence in order to be satisfactorily proved and hence the plaint could not be rejected under Order 7, Rule 11 of the C.P.C. It is but clear from the very perusal of Order 7, Rule 11, C.P.C. that it becomes operative only when the plaint is liable to be rejected on the basis of the very contents of the plaint taken to be true and correct but the Court can also safely rely upon the documents annexed to the plaint and in case the defendant has filed written statement with documents, such documents can also be looked into discussed and relied upon equally well when the matter is considered under Order 7, Rule 11, C.P.C. This consideration is all the more genuine when the documents involved are judicial record. In the instant case it has been all the original files as well under perusal of this Court from which the copies were obtained to be placed on the original file alongwith written statement.

8. The learned counsel for the petitioner relied upon Khair-un-Nisa v. Malak Muhammad Ishaq PLD 1972 SC 25(b) in support of the principle that a written statement is not an exhibit in a file unless a defendant appears in Court to support it and that a written statement is not an evidence within the meanings of the law of evidence and that hence the contents of the written statement in the present case should not have been relied upon while deciding the matter under Order 7, Rule 11, C.P.C: I find myself in perfect agreement with the above case-law but would add, with reference to the facts of the present case, that the contents of the written statement are not relied upon while forming an opinion but the material aspect practically damaging for the plaintiff are numerous documents from judicial record which are annexed with the plaint and which can validly and legally be looked into while forming an opinion under Order 7, Rule 11 of the C. P. C.

9. In the circumstances, the legal as well as factual aspect of the case gleaning through plaint and documents on record, has rightly been appreciated by the two Courts below. 1 here has been no misreading or non- reading of the documents on record and those have rightly been appreciated and applied to the present case where the interference of this Court in its revisional jurisdiction is not proper. The revision petition is hereby dismissed with the remarks that it was a proper case where I would have endorsed the imposition of compensatory costs under section 35-A of the Civil Procedure Code, had it been so imposed, for, the said section has now been made applicable to this Province through N.-W.F.P. Act No. II of 1989. A.A./1605/P Revision dismissed.