2007 PLP 2760 (YLR)

SARMAD TALAL OSMANY, J.

Briefly stated the facts of the matter are that the applicant/plaintiff was in occupation of 17-3-Acres agricultural land in Deh Shamash Chapri, Taluka Ubaro, 50% of which was .owned by him and the A balance belonged to the Government being evacuee property. Thereafter, the Deputy Commissioner, Sukkur, issued a clearance certificate in respect of the property, in favour of the Defendant No.1, Muhammad Subhan against his claim, vide Entry No.160 dated 10-8-1992, who in turn sold it to defendant No.2 Shirimati Shanti Bai vide registered sale-deed the next day viz. 11-8-1992. Again, the defendant No.2 sold the land to defendants Nos.4 to 7 viz. Muhammad Chuttal and others in the year, 1994. As the Evacuee Laws had been) repealed by the Government in the year 1974, the applicant filed an appeal before the Commissioner Sukkur, who allowed the same and cancelled all the entries vis-a-vis allotment of the Government Land on the basis of evacuee claims vide order dated 3-5-2000. Thereafter, the defendants/respondent Nos.4 to 7 preferred a Revision before the Member Board of Revenue, who set aside the order passed by the Commissioner on 20-2-2001 and directed that the aggrieved party should seek its remedy before the Civil Court: Consequently, the applicant filed Suit No.31 of 2001 against the defendants/respondents Nos. l to 7 as well as they official respondents Nos 8 to 12 praying for declarations that the order of the Deputy Commissioner, Sukkur, is illegal and the same be set aside as well as the order passed by the Member Board of Revenue. So also it was prayed that a permanent injunction be issued restraining the defendants/respondents from interfering in the possession and enjoyment of the suit- land by the applicant/plaintiff. The respondents Nos.4 to 7 filed an application under Order VII, rule 11, C.P.C. praying that the plaint be rejected on the grounds that no cause of action had accrued to the plaintiff for filing the suit which itself is barred under sections 42 and 56 of the Specific Relief Act. Said application was allowed by the Senior Civil Judge, Ubaro, vide Order dated 20-10-2001 and the plaint rejected. The applicant went in appeal before the learned District Judge Ghotki via Civil Appeal No.74 of 2001 which was dismissed vide the impugned order dated 28-1-2003 and hence the present revision application.

2. In support of the case, Mr. Imdad Ali Awan has firstly submitted that the applicant did possess a legal character and a right to file the suit as he was the Hari of the land and under Notification No.SB-3/1-279/P dated 4-12-1989 the Haris would get preference in disposal of Government land: Hence, where the applicant has been cultivating the suit-land and has been paying land revenue etc. , and also spent a lot of money in improving the same, the right to acquire it has been denied to him by the unlawful mutation in favour of respondent No.l and subsequent transfers in favour of the private respondents. As regards this issue; per learned counsel, as the settlement laws were repealed in 1975 hence the impugned clearance certificate issued to the respondent No.1 in the year 1992 on the basis of his claim was unlawful. Even otherwise per learned counsel, if as much has not been clearly stated in the plaint, the applicant/plaintiff should have been given an opportunity to amend the plaint rather than to reject the same. In support of his submission, learned counsel has relied upon Arif Majeed Malik v. Board of Governors Karachi Grammer School (2004 CLC 1029), Mst. Arshan Bi v. Moula Bux X2003 SCMR 318), Shaikh Abdul Rahim v. Noor Muhammad (1993 CLC 1059), Mitha Khan v. Muhammad Younus (1991 SCMR 2030) and Sharaf Fareedi v.The Federation of Pakistan (FLD 1989 Kar. 404). Learned counsel has therefore, prayed that this revision application be allowed and the impugned judgments and decree passed by the lower forums be set aside where after the suit be decided on merits.

3. On the other hand, Mr. Abdul Fatteh Malik, learned counsel for respondents Nos.3 to 7, has supported the impugned order and submitted that no right, title or interest has been disclosed by the applicant/plaintiff in the suit-land. On tree other hand, a simple declaration has been prayed for vis-a-vis the clearance certificate issued by the Deputy Comrriissioner, Sukkur, as welt as an injunction has been sought from interfering in the peaceful possession of the suit-land by the piaintiff. Consequently, the suit is barred under sections 42 .and 56 of the Specific Relief Act. He has relied upon Jahangir Akhtar v. Inayat Ahmed and others (1990 CLC 1.053-AJK), Zafar Ahmed v. Mst. Hajra Bibi (PLD 1986 Lah. 3991; Gulbano and others v. Aurangzeb (2000 -CLC 1796), Nietro Cooperative Housing Society Ltd. v. Bonanza Garments (Pvt.) Industries and others (1996 MLD 5931, Asghar Ali v. P.K Shahani and others (1992 CLC 2282) Learned counsel has therefore, prayed that this revision application be dismissed.

4. I have heard both learned counsel acid my conclusions are as follows.

5. In order to appreciate, .the controversy presented before this Court it would not only be convenient but perhaps necessary to reproduce the prayer clause of the suit in question which reads as follows :

"(a) To declare that the clearance certificate, .issued by the Deputy Commissioner Sukkur is illegal and null and void, and also subsequent entries made upon i.e. No.160 date 10-8-1992, No.161 dated 11-8-1992 and No.245 dated 23-10-1994 are not warranted under the law. (b) To declare that the order dated 20-2-2001 passed by the M.B.O.R. Sindh, Hyderabad is also illegal and null and void. (c) To grant permanent injunction restraining the defendants from interfering with the peaceful cultivating possession and enjoyment of land produce, and may not be ejected, without due process of law also they .may be restrained from changing the nature of the property. (d) To award costs of the suit. (e) Any other relief as deems fit under the circumstances of the case."

6. A bare reading of the prayer clause would show .that the applicant/plaintiff has only challenged the entries in the record of rights kept with the Revenue Department in favour of the private respondents as well as the order of the Member Board of Revenue, allowing the revision filed against the order of the Commissioner, Sukkur. So also a permanent injunction has been .prayed for against eviction of the applicant/plaintiff from the suit-land except in accordance wish law. No prayer has been made regarding the right, title or interest of the applicant/plaintiff in the suit property and in fact as much has not even been stated in the body of the plaint itself. So also it would be seen that the allotment of the suit-land to the respondent No. l and subsequent sale to the other private respondents has not been challenged but only the entries in the record of rights regarding these transac?tions. Finally, it would also be seen that no consequential relief has been prayed for with regard to the applicant/plaintiff's right, title or interest in the suit-land.

7. However, having observed as above, it would be seen that the applicant/plaintiff's -claim in the suit is based upon the unlawful allotment of the suit-land to the respondent No.l and his right to acquire the same in accordance with law as he is a Hari of the same. As much has been stated in paras 4, 9 and 10 of the plaint. Hence it cannot be said that no cause of action had accrued to the applicant/plaintiff for filing the suit. It may be that the suit has not properly been framed inasmuch as perhaps the plaint was defective. As held by the Honourable Supreme Court of Pakistan in Haji Mitha Khan v. Muhammad Younus (supra) the vagueness of the plaint or the relief claimed, of deficiency in the court-fee or the defective form of the suit etc. were all questions which would arise only when E there was a cause of action in which event an opportunity should be given to the applicant/plaintiff to correct the defects and remove the deficiency etc. instead of rejecting the plaint under Order VIII. rule 11, C.P:C. Similarly, it would be seen that even where declaratory relief could not be granted under the law the prayer for an injunction could be treated as an independent one and hence relief could always be granted. Hence, even if the appellant/plaintiff was not entitled to a declaration as to the relief claimed it was always possible for The Court to grant injunction preventing the respondents from violating their obligations ordained by law. In this regard reference can be made to Muhammad Ilyas Hussain v. Cantonment, Board Rawalpindi (PLD 1976 SC 785), Arshan Bi v. Moula Bux and Arif Majid Malik v. Board of Governors Karachi Grammar School (supra). Finally, it would be seen that per settled law technicalities are to be avoided so as not to create hurdles in the way of substantial justice. Such principle is only too well-known and B does not require the citations from the superior Courts in order to supplement the same.

8. For the foregoing reasons, this revision application is .allowed. The judgments and decrees of both the lower forums are set aside and it is directed-that the Suit bearing No.31 of 2001 filed before C the learned Senior Civil Judge, Ubaro entitled Sahib Dino v. Muhammad Subhani and others shall be decided on merits after giving the opportunity to the applicant/ plaintiff to amend the plaint. H.B.T./S-57/K???????????????????????????????????????????????????????????????????????? Revision allowed.