P L D 2012 Peshawar 75 (PLP)
LAL ZAMIN alias LALONO ZARGAR and others — Petitioners. Versus ASFANDYAR KHAN and 2 others — Respondents
| Citation | P L D 2012 Peshawar 75 (PLP) |
| Forum / Court | High Court |
| Bench Members | N/A |
| Parties | LAL ZAMIN alias LALONO ZARGAR and others — Petitioners. Versus ASFANDYAR KHAN and 2 others — Respondents |
| Primary Law | (a) Civil Procedure Code (V of 1908), (c) Civil Procedure Code (V of 1908), (b) Civil Procedure Code (V of 1908) |
Q1: What are the key laws and sections cited in P L D 2012 Peshawar 75 (PLP)?
This judgment primarily cites: (a) Civil Procedure Code (V of 1908), (c) Civil Procedure Code (V of 1908), (b) Civil Procedure Code (V of 1908) as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case P L D 2012 Peshawar 75 (PLP)?
The case was heard and decided by the High Court bench comprising: N/A.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: P L D 2012 Peshawar 75 (PLP) (LAL ZAMIN alias LALONO ZARGAR and others — Petitioners. Versus ASFANDYAR KHAN and 2 others — Respondents). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Laws Cited
Representation
- ----O. VII, R. 11 & S. 11---Specific Relief Act, (I of 1877), S.42---Constitution of Pakistan, Art. 199---Constitutional petition---Rejection of plaint---Scope---Res judicata, principle of---Applicability---Respondents (plaintiffs) had filed suit for declaration against the petitioners (defendants) and during trial respondents produced their evidence but when case was fixed for petitioner's evidence, petitioners filed application under 0. VII, R.11, C.P.C., for rejection of plaint,' contending that suit was barred by principle of res judicata---Petitioner's application for rejection of plaint was allowed by Trial Court but on respondent's appeal, Appellate Court below set aside order of Trial Court---Petitioners' contention was that respondent's suit was barred by S.11, C.P.C., as the parties 'had litigated earlier regarding the same subject matter and in circumstances there was no further need to record evidence and plaint filed by respondents was required to be rejected---Validity---Trial Court had framed the issues and parties were asked to produce evidence in support of their claims---
- ---O. VII, R. 11 & S. 11---Sharia Nizam-e-Adl Regulation, 2009, Para.10(8)--- Specific Relief Act, (I of 1877), S.42---Constitution of Pakistan, Art.199---Constitutional petition---Remand of case--Rejection of plaint---Res judicata, principle of---Applicability---Scope---Respondents (plaintiffs) had filed suit for declaration against the petitioners (defendants) and during trial respondents produced their evidence but when case was fixed for petitioner's evidence, they filed application under 0. VII, R. 11 C.P.C., for rejection of plaint, contending that the suit was barred by principle of res judicata---Petitioner's application for rejection of plaint was allowed by Trial Court but on respondent's appeal, Appellate Court below set aside order of Trial Court---Petitioner's contention was that Appellate Court below, by setting aside order of Trial Court, had remanded the case to the Trial Court, which was against para.10(8) of Shariah Nizam-e-Adl Regulation, 2009---Validity---Appellate Court's order could not be held as an order for remand in legal parlance, as respondent's appeal against rejection of plaint was allowed by setting aside order of rejection of plaint passed by Trial Court and the only option available with the Appellate Court was to ,ask for the conclusion of the trial which was pending before the Trial Court--- Petitioner's objection having no force, constitutional petition was dismissed accordingly.
- ----O. VII, 11 & S.11---Specific Relief Act, (I of 1877), S.42---Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability---Rejection of plaint---Res judicata, principle of---Applicability---Respondents (plaintiffs) had filed suit for declaration against the petitioners (defendants) and during trial respondents produced their evidence but when case was fixed for petitioner's evidence, they filed application under O. VII, R.11, C.P.C., for rejection of plaint, contending that suit was barred by principle of resjudicata---Petitioner's application for rejection of plaint was allowed by Trial court but on respondents' appeal, Appellate Court below set aside order of Trial Court---Respondents' contention was that petitioner could have legally challenged the order of Appellate Court below through a revision petition instead of the present constitutional petition, therefore, constitutional petition was liable to be dismissed---Validity---Decision of Appellate Court could be challenged through revision petition and constitutional petition against the same was not maintainable---High Court could convert constitutional petition into ones permissible under law, but even if present constitutional petition was converted into a revision petition, same would still not serve the petitioner's purpose--- Constitutional petition, being merciless, was dismissed.
- Khalil Khan Khalil for Petitioners.
- Maazullah Barkandi for Respondents.
- 4. As against that, the learned counsel for the plaintiff/respondent, while refuting the arguments of learned counsel for petitioners, contended that issues in the case were framed and evidence of plaintiff was recorded and the defendant-petitioners, instead of producing their evidence, filed the application which, in the circumstances, was not legally maintainable and was rightly dismissed by the appellate Court. He further contended that the certified copies of previous litigation itself would require, evidence just to establish that both the properties in the two litigation were same; that the matter which required further evidence, cannot be decided by invoking the provision of Rule-11 of Order VII of C.P.C. He further contended that the impugned order, in no way, can be said to be a remand order. Lastly, he questioned the very maintainability of writ petition, as against rejection of plaint appeal was rightly filed. So, decision of appellate Court could have legally been assailed through revision petition instead of writ petition. Therefore, this writ petition is liable to dismissal only on this score.
Headnotes / Summary
O. VII, R. 11 & S. 11
Specific Relief Act, (I of 1877), S.42
Constitution of Pakistan, Art. 199
Constitutional petition
Scope
Respondents (plaintiffs) had filed suit for declaration against the petitioners (defendants) and during trial respondents produced their evidence but when case was fixed for petitioner's evidence, petitioners filed application under
0. VII, R.11, C.P.C., for rejection of plaint,' contending that suit was barred by principle of res judicata
Petitioner's application for rejection of plaint was allowed by Trial Court but on respondent's appeal, Appellate Court below set aside order of Trial Court
Petitioners' contention was that respondent's suit was barred by S.11, C.P.C., as the parties 'had litigated earlier regarding the same subject matter and in circumstances there was no further need to record evidence and plaint filed by respondents was required to be rejected
Trial Court had framed the issues and parties were asked to produce evidence in support of their claims
O. VII, 11 & S.11
Specific Relief Act, (I of 1877), S.42
Constitution of Pakistan, Art. 199
Constitutional petition
Respondents (plaintiffs) had filed suit for declaration against the petitioners (defendants) and during trial respondents produced their evidence but when case was fixed for petitioner's evidence, they filed application under O. VII, R.11, C.P.C., for rejection of plaint, contending that suit was barred by principle of resjudicata
Petitioner's application for rejection of plaint was allowed by Trial court but on respondents' appeal, Appellate Court below set aside order of Trial Court
Respondents' contention was that petitioner could have legally challenged the order of Appellate Court below through a revision petition instead of the present constitutional petition, therefore, constitutional petition was liable to be dismissed
Decision of Appellate Court could be challenged through revision petition and constitutional petition against the same was not maintainable
High Court could convert constitutional petition into ones permissible under law, but even if present constitutional petition was converted into a revision petition, same would still not serve the petitioner's purpose
Constitutional petition, being merciless, was dismissed.
O. VII, R.11
Scope
Application for rejection of plaint can be made at any stage of the proceedings but only when the record, itself makes the plaintiff's case fall under any of the clauses under O. VII, R.11, C.P.C., and it does not require any further evidence to establish the same
Where matters/facts, alleged or denied in the plaint, required evidence to prove the same, provisions of O. VII, R.11, C.P.C., would not apply and settled course in the circumstances would be a full trial.
Judgment & Decree
MAZHAR ALAM KHAN MIANKHEL, J.
The petitioners through instant writ petition have questioned the judgment and decree dated 3-7-2010 of the District Judge/Zilla Qazi, Malakand at Batkhella, respondent No.3, whereby appeal of the respondent against the judgment/order dated 27-4-2010 of Civil Judge/Illaqa Qazi-II, Malakand at Batkhella, was allowed.
2. Respondent No.1 filed suit for declaration against the present petitioner, by claiming certain landed properties, fully described in his plaint, to be his ownership. Claim of plaintiff/respondent was denied by defendant-petitioners. The plaintiff/respondent, during the trial produced his evidence. The case was fixed for evidence of defendant/petitioners, when they filed application dated 3-2-2010, under Rule 11 of Order VII of C.P.C. for rejection of plaint, being barred by section 11 of C.P.C. That application was allowed by Civil Judge/Illaqa Qazi, vide his judgment/order dated 27-4-2010. The plaintiff/ respondent assailed the same before District Judge/Zilla Qazi, Batkhella, through an appeal which was allowed by his judgment/decree dated 3-7-2010, and the findings of trial Court were set-aside and the parties were directed to appear before the learned trial Court. The petitioners, feeling aggrieved, has filed the instant writ petition.
3. Learned counsel for the petitioners contended that findings of appellate Court, whereby case was remanded back to the trial Court, are against Para-10 (8) of Shariah Nizam-e-Adl Regulation 2009, so, the same is the result of unlawful exercise of jurisdiction; that the instant suit of the plaintiff/respondent was barred by section 11 of C.P.C, as the parties had litigated earlier regarding the same subject matter and this very fact is established from the certified copies of the decision of earlier litigation. He submitted that in such like situation, there was no need to record further evidence and the plaint in suit filed by the plaintiff/respondent was required to be rejected, being barred by law.
4. As against that, the learned counsel for the plaintiff/respondent, while refuting the arguments of learned counsel for petitioners, contended that issues in the case were framed and evidence of plaintiff was recorded and the defendant-petitioners, instead of producing their evidence, filed the application which, in the circumstances, was not legally maintainable and was rightly dismissed by the appellate Court. He further contended that the certified copies of previous litigation itself would require, evidence just to establish that both the properties in the two litigation were same; that the matter which required further evidence, cannot be decided by invoking the provision of Rule-11 of Order VII of C.P.C. He further contended that the impugned order, in no way, can be said to be a remand order. Lastly, he questioned the very maintainability of writ petition, as against rejection of plaint appeal was rightly filed. So, decision of appellate Court could have legally been assailed through revision petition instead of writ petition. Therefore, this writ petition is liable to dismissal only on this score.
5. Learned counsel for the parties were heard and available record' of the case was gone through with their assistance.
6. Record of the case would reveal that the trial Court has framed issues from the divergent pleadings of the parties and the parties were asked to produce pro and contra evidence in support of their respective claims. The plaintiff/respondent concluded his evidence and the defendant/petitioners, instead of producing their evidence, have opted to move the trial Court for rejection of plaint. Though there is no legal impediment/clog in their way and such application can be moved at any stage of the proceedings but only when the record itself makes the case of a plaintiff to be hit by any of the clause embodied in Rule 11, of Order VII of C.P.C, and it does not require any further evidence to establish the same. When the matters/facts, alleged/denied in the plaint, would require evidence to prove the same, then, we are afraid, the recourse to the provisions of Rule 11, ibid, cannot be held to have support of settled law of the land. Settled course in the circumstances, would be nothing less than a full-fledged trial.
7. While reverting back to the facts and circumstances of the case in hand, if at all, it is presumed that the case of plaintiff/respondent is barred by the principle of res judicata, even then the matter would require recording of evidence to establish the same only because of nature of property, which is bereft of recognition through revenue record. The evidence alone would establish the fact that the subject matter of the two suits between the parties was the same. When this being the situation, we see no illegality or unlawful exercise of jurisdiction by the appellate Court which, in the circumstances, cannot be interfered with.
8. As far as question of remand, as alleged by the learned counsel for the petitioner, is concerned, that in the circumstances, cannot be held as an order of remand in legal parlance, as appeal against rejection of plaint was allowed by setting aside order of rejection of plaint, then the only option with the appellate Court was to ask for conclusion of the trial which was pending before the trial Court, so, the said objection, in our view, has no force at all.
9. Then comes the maintainability of the writ petition, which is a legal objection, because the decision of appellate court can be assailed through revision petition and writ petition against the same is not maintainable. This Court has oftenly converted such petitions into the one permissible under the law, but at this stage if writ petition is converted to a revision petition, even then it would ndt serve the purpose of the petitioner. Hence, being meritless, this petition is dismissed as such. M.W.A./23/P?? ?????????????????????????????????????????????????????? Petition dismissed.