2020 PLP 44 (CLCN)

ALI BAIG, J.

This civil revision petition filed under section 115, C.P.C. has been directed against the impugned judgment/order dated 17-8-2018, passed by the learned Additional District Judge Gilgit, whereby the learned Ist Appellate Court has dismissed the civil first appeal of the appellant/ plaintiff by maintaining the judgment/order of the learned trial court dated 16-10-2017.

2. Brief facts essential for the disposal of the instant revision petition are that, the present petitioner/plaintiff instituted a suit for declaration and permanent injunction against the present respondents/ defendants in the trial court claiming that the petitioner/plaintiff is owner in possession of suit land measuring 45 kanals 19 marlas fully described in the head note of the plaint situated at Nomal Tehsil Gilgit and the respondent/defendant No.7 is forcibly constructing residential quarters for 14 Megawatts Hydel Project without giving compensation to the petitioner/plaintiff, therefore, the respondents/defendants may perpetually be restrained from interfering in the suit land.

3. The present respondents being defendants in the suit hotly contested the suit by filing their joint written statement in the trial court, wherein they have raised certain legal objections and have also repudiated the averments of plaint by pleading/ asserting that the suit land is khalisa-e-sarkar and the petitioner/plaintiff has nothing to do with the suit land.

4. During pendency of suit the learned trial court after hearing arguments on behalf of the parties on maintainability of suit has rejected the suit of the petitioner/plaintiff under Order VII, rule 11, C.P.C. holding that suit land is khalisa-e-sarkar, therefore, suit of the plaintiff is not maintainable vide order dated 16-10-2017. The aforesaid order of the learned trial court was challenged in the court of the learned Additional District Judge, Gilgit through civil first appeal which was also dismissed by the learned 1st Appellate Court vide the impugned judgment/order dated 17-8-2018.

5. Feeling aggrieved and dissatisfied with the impugned judgment/order passed by the learned Additional District Judge Gilgit, the petitioner/plaintiff has preferred the instant civil revision petition in this court.

6. The learned counsel appearing on behalf of the petitioner/plaintiff contended that the impugned judgment/order passed by the learned 1st Appellate Court is contrary to law and facts on the record of the case, as such the impugned judgment/order is not maintainable and liable to be set aside. The learned counsel for the petitioner/plaintiff further argued that the suit can be rejected under Order VII, rule 11, C.P.C., if a plaint does not disclose a cause of action or where a suit appears from statement in the plaint to be barred by any law, but in the instant case neither plaint does not disclose cause of action nor suit is barred by any law and the learned trial court has rejected the suit under Order VII, rule 11, C.P.C., touching the merits of the case holding that the suit land is khalisa-e-sarkar which is not permissible under law. The learned counsel for the petitioner/plaintiff further argued that both the learned courts below have committed material irregularity and illegality while passing the impugned judgments/ orders, therefore, by accepting this civil revision petition the impugned judgments/orders passed by both the learned courts below may be set aside and suit may be remanded back to the learned trial court for disposal on merit.

7. On the other hand the learned Additional Advocate General vehemently opposed this revision petition and defended the judgments/orders of the lower courts by contending that the petitioner/plaintiff had earlier withdrawn his previous suit on the plea/ground that he wants to file an appeal before the Revenue Forum, but he did not approach Revenue Forum for redressal of his grievances and has again filed a fresh suit in the trial court which is not maintainable. The learned Additional Advocate General further argued that the petitioner/plaintiff has failed to disclose cause of action in the plaint, therefore, both the learned courts below have rightly rejected suit of the petitioner/plaintiff under Order VII, Rule 11, C.P.C.

8. I have carefully considered the submissions made by the learned counsel for the parties and perused the record minutely.

9. From perusal of impugned judgment/order dated 16-10-2017, passed by the learned trial court it appears that the learned trial court has rejected the suit of the petitioner/plaintiff under Order VII, rule 11, C.P.C. holding that the suit land is purely khalisa-e-sarkar by touching the merit and record of the case, which is not permissible under law. Whereas the petitioner/ plaintiff has claimed that suit land is owned by him and mutation of suit land has been attested in his name on 14-5-1966 which is a very old public document.

10. The allegations and counter allegations by the parties indicate that they are at variance on question of fact, which cannot be resolved without recording of their respective evidence.

11. Order VII, rule 11, C.P.C. contemplates that plaint shall be rejected on the following four grounds/case. (a) Where it does not disclose a cause of action. (b) Where the relief claimed has been under valued. (c) Where the court fees of full value have not been supplied and (d) Where the suit appears on the face of the plaint to be barred by any law.

12. From plain reading of the above reproduced provisions of law it becomes crystal clear that the learned trial court has not rejected the suit on the aforesaid four grounds rather the learned trial court has rejected the suit of the plaintiff under Order VII, rule 11, C.P.C. by touching merit of case holding that suit land is khalisa-e-sarkar and question of fact that whether suit land is khalisa-e-sarkar or owned by to petitioner/plaintiff can be determined during the trial of case by the learned trial court after recording of evidence of the parties. In my humble opinion the plaint cannot be rejected in the above circumstances, without affording an opportunity to the parties to adduce their evidence and without providing them chance of hearing as law favours adjudicate on merits after giving the parties full opportunities to prove their case. Technical knockout is an exception and is not a rule. Reference in this connection is made to the reported judgment 2003 MLD 1521.

13. For the reasons stated above, I have come to conclusion that both the learned courts below have committed material irregularity and illegality while passing the impugned judgment/orders, therefore, I accept this revision petition and set aside the impugned judgments of trial court and as well as 1st appellate court and remand the case to the learned senior Civil Judge Gilgit for proceeding/trial afresh in accordance with law with no order as to costs. Parties are directed to appear before the learned trial court on 05-11-2019. Certified true copy of this judgment also be transmitted to the learned trial court forthwith for his information and further necessary action. File. ZC/177/GB Case remande