2010 PLP 1786 (YLR)

SAHIB KHAN, J.

Through this writ petition, petitioner seeks relief for setting aside the impugned Judgment/order dated 15-9-2008 passed by the learned Additional District Judge Ghizar in Revision Petition No.1/2007.

2. Precisely stated facts leading to the controversy are that the petitioner and respondent No.1 had instituted a Civil Suit bearing No.35/04 as co-plaintiffs before the Civil Judge Gupis against the respondents 2 to

9. During the trial respondents entered into a compromise and respondent No.1, did not pursue the suit. Petitioner on a later stage applied the court for withdrawal of the suit with permission to file a fresh suit. The learned Judge accepted his request vide order dated 11-10-2006. After withdrawal of Suit No.35 of 2004, petitioner instituted Suit No.13 of 2007 which was contested by the respondents. On 12-6-2007, an application was filed by the respondents invoking Order VI1 rule 11 of Civil Procedure Code (1908). After getting replication and having heard to the counsel for parties trial Judge refused the application vide order dated- 6-12-2007. Feeling themselves aggrieved from the order dated 6-12-2007, respondents assailed it before the learned Additional District Judge Ghizar, through a Revision petition, who vide his impugned Judgment/order dated 15-9-2008, reversed the order dated above passed by the Civil Judge Gupis, hence this writ petition before this court with the contention that no alternate and efficacious remedy was available to the petitioner to assail the impugned judgment/ order.

3. We have heard arguments pro and contra, advanced by the learned counsel for parties, minutely gone through the available record.

4. The learned counsel for the petitioner submitted that the learned Additional District Judge has erred while rejecting the suit of plaintiff under the provision provided as Order VII rule 11 of C.P.C. He submitted that the bare reading of impugned Judgment/order, reveals that the learned revisionary court has misconceived the matter, he instead of considering the grounds provided for rejection of plaint have gone into the deep merits of the case, prior to its trial and has rejected the suit, with the permission to file fresh suit. He further submitted that the impugned order was passed in revisionary jurisdiction hence there left no alternate remedy to avail, except filing this writ petition to challenge the impugned order, which on the face of it is void. On the other side the learned counsel for respondents forcefully opposed the maintainability of Writ Petition with the contention that writ petition being an extra ordinary jurisdiction can only be invoked where no alternate remedy is available but not in the petty matters like the matter in hand, wherein the learned revisionary Court has allowed to file fresh suit.

5. Prior to discuss the rest of involved legal and factual issues in the matter, we would like to attend the question of maintainability of the writ petition first. It is evident that the impugned order dated 5-9-2008, has been passed by the learned Additional District Judge Ghizar in a revision petition filed against the order dated 6-12-2007. Admittedly no appeal or revision has been provided in law against any order passed in exercise of revisional, jurisdiction, either by the District Court or by the High Court under section 115 of C.P.C. It has been ruled and adopted principle that when and where appears to the Court that the order of lower appellate Court passed in exercise of its revisionary jurisdiction under section 115 of C.P.C. such order could be challenged through constitutional petitions if the order is found to be void or coram non judice.

6. In this case, as has been mentioned above that the learned Additional District Judge de-suited the petitioner while adjudicating an application filed by the respondent for rejection of plaint under Order VII rule 11 of C.P.C. It would be just and proper to reproduce the relevant provisions of C.P.C. to examine its scope and applicability in the case. Order VII, rule 11 of C.P.C. Rejection of Plaint.

The plaint shall be rejected in the following cases:

(a) Where it does not disclose a cause of action; (b) 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. (c) 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. (d) where the suit appears from the statement in the plaint to be barred by any law.

7. By providing the word shall legislature has made the provision of this rule mandatory, therefore, it is primary duty of the court before issuing the process, to examine the plaint for the purpose of determination whether the plaint is liable to be rejected under Order VII, rule 11, C.P.C. Where the provisions of Order VII, rule 11 are attracted, the suit cannot be dismissed but the plaint should be rejected. All the grounds provided under Order VII, rule 11 for rejection of plaint are legal and technical in nature and should appear on the face of the plaint, hence to bring the plaint in consonance with the Order VII, rule 11 of C.P.C., plaint is rejected either on request of opposite party or the court itself take notice of the legal infirmity of plaint and reject the same. As against to this where the matter requires trial on any factual or legal issue/issues, the plaint should not be rejected, allow the party to prove his case. The rejection of a plaint does not amount to adjudication on merit, hence the plaintiff can file fresh suit on the same cause of action. Although by virtue of section 2(2) of C.P.C., an order rejecting plaint is a decree and appealable, contrary to this, dismissal of a suit amounts to adjudication, and fresh suit is barred.

8. In this case the learned Additional District Judge has neither discussed the grounds provided for rejection of plaint nor seemingly, plaint has been rejected on those grounds but he has erroneously considered the merits and finally rejected the suit instead of the plaint, allowing the petitioner to file a fresh suit. Since the grounds for rejection of plaint were neither available nor were based for passing the impugned Judgment/order, hence the order being void is liable to be set aside, invoking the extra, ordinary jurisdiction of the court.

9. We accordingly set aside the order upholding the order passed by the Civil Judge Gupis dated 16-12-2007. No orders as to cost. File. H.B.T./48/Glt. Petition allowed.