2019 PLP 1333 (CLC)

SHAHID BILAL HASSAN, J.

Precisely, the petitioners instituted a suit for partition originally against the respondents Nos.1 to 25 being co-owners of an undivided joint holding. During pendency of the suit, the petitioners filed an application for impleading respondent No.26 as defendant in the suit which application was allowed vide order dated 06.12.2012 and the petitioners submitted amended plaint after impleading the respondent No.26 in the array of defendants. On 08.01.2014, the respondent No.26 filed his written statement and joined the proceedings. On 20.01.2015, the respondent No.26 filed an application for rejection of plaint under Order VII, Rule 11 of the C.P.C. only to the extent of respondent No.26; the said application was duly resisted by the present petitioners. The learned trial Court vide impugned order dated 07.01.2016 accepted the said application and rejected the plaint of the petitioners' suit to the extent of respondent No.26, however, the suit to the extent of remaining defendants is still pending. The petitioners being aggrieved of the said order assailed the same by filing of an appeal but the same was dismissed vide impugned judgment dated 02.02.2018; hence, the instant civil revision.

2. Voicing in favour of the grounds urged in the memorandum of appeal, the learned counsel for the petitioners has argued that it is settled principle of law that a plaint of the suit may only be rejected in totality and the concept of partial and piecemeal rejection of the plaint is alien to law on the subject; thus, the learned trial Court has committed material illegality by rejecting the plaint only to the extent of respondent No.26 and the learned appellate Court without applying independent judicious mind and without lawful justification dittoed the said order. Added that the findings recorded by the learned appellate Court that the respondent No.26 purchased specific land with specific boundaries and as such he is not co-owner in the joint holding with other co-owners is against the revenue record because the property purchased by the respondent No.26 falls in Khata No.127, which, according to revenue record has not been partitioned yet, thus, the impugned order and judgment are against the settled principle that if a person purchases a land out of joint holding, he becomes a co-owner in the holding along with other co-owners and if the purchaser gets the possession of any land from the joint holding, such possession is always subject to the partition of Khata. Submitted that the learned Courts below ignored the order of Hon'ble Supreme Court of Pakistan dated 07.05.2004 passed in C.P.No.234-L/2002 wherein the Hon'ble Supreme Court while upholding the orders passed by this Court in C.R.No.1205/D/1993 dated 15.10.2001 as well as the decree of learned Additional District Judge, Lahore dated 25.02.1993 held that the plaintiff in that suit (from whom the petitioners' predecessor has derived his title) has the right to file a suit for partition of joint holding against other co-owners including defendants Nos.18 to 25 (from whom the respondent No.26 allegedly purchased the land in the year 1993); that the learned Courts below have committed material illegalities and irregularities while passing the impugned order and judgment, because the petitioners and respondent No.26 are co-owners in Khata No.127 and hence, the respondent No.26 is a necessary party to the suit for partition. Moreover, while deciding application under Order VII, Rule 11 of the C.P.C. only the contents of the plaint are considered and when the same do not disclose any cause of action or barred by any law, the plaint can be rejected, but here the case is otherwise, because partition has been prayed in respect of Khatas Nos.127 to 132 and the respondent No.26 purchased the land from Khata No.127. As such, the learned Courts below have travelled beyond the vested jurisdiction and have erred in law while passing the impugned order and judgment, which are not sustainable in the eye of law. It has been further argued that at the most, the learned trial Court ought to have given opportunity to the petitioner to amend the plaint, rather to knock him out on the basis of technicality; thus, by allowing the civil revision in hand, the same may be set aside, consequent whereof the application filed by the respondent No.26 may be dismissed. Relies on E.F.U. General Insurance Company Ltd. through Branch Manager and 2 others v. Zahidjee Textile Mills Ltd. through Assistant Director and another (2005 CLC 848-Lahore), Maxim Advertising Co. (Pvt.) Limited v. Messrs Z&J Hygenic Products and 2 others (2007 YLR 2252-Karachi), Mst. Nishat Ishaq v. Amjad Khan and 2 others (2014 CLC 71-Sindh), Mst. Jan Ara and others v. Muhammad Zubair and others (2012 CLC 1630-Peshawar), Muhammad Ali Shaikh v. Sui Southern Gas Company Ltd. through Managing Director and 3 others (2014 YLR 444 Sindh), Nanik Ram and others v. Ghulam Akbar and 9 others (2016 MLD 52 Sindh) and Aroma Travel Services (Pvt.) Ltd. through Director and 4 others v. Faisal Al Abdullah Al Faisal Al-Saud and 20 others (2017 YLR 1579-Sindh).

3. Naysaying the above submissions, learned counsel representing the respondents has supported the impugned order and judgment and has prayed for dismissal of the civil revision in hand. Relies on Mian Muhammad Akram and others v. Muhammad Rafi (1989 CLC 15-Lahore), Mst. Shahnaz Begum v. Mst. Zulaikha Bibi and 5 others (1989 CLC 1526-Lahore), Asgharali v. P.K. Shahani and 2 others (1992 CLC 2282-Karachi), Haji Abdul Karim and others v. Messrs Florida Builders (Pvt.) Limited (PLD 2012 Supreme Court 247) and Haji Abdul Mateen Akhundzada and another v. District Coordination Officer/Deputy Commissioner, Quetta and 5 others (PLD 2012 Balochistan 154).

4. I have given due consideration to the arguments advanced by the learned counsel for the parties and have gone through the record with their able assistance minutely.

5. It is a settled principle, by now, that a plaint cannot be rejected in piecemeal as the concept of partial rejection of plaint is inapplicable to the provisions of Order VII, Rule 11 of the Code of Civil Procedure, 1908 and it would have its limited application with regards to the provisions of Order VI, Rules 16 and 17 of the C.P.C. There could be partial striking out of pleadings but not rejection of plaint, because partial acceptance or rejection of plaint is always considered as improper exercise of jurisdiction. In this regard reliance is placed on Feroze Din and another v. Master Muhammad Sher Khan (1979 CLC 742), Moinuddin Paracha and 6 others v. Sirajuddin Paracha and 23 others (1993 CLC 1606), Valuegold Limited and 2 others v. United Bank Limited (PLD 1999 Karachi 1), E.F.U. General Insurance Company Ltd. through Branch Manager and 2 others v. Zahidjee Textile Mills Ltd. through Assistant Director and another (2005 CLC 848-Lahore), Maxim Advertising Co. (Pvt.) Limited v. Messrs Z&J Hygenic Products and 2 others (2007 YLR 2252-Karachi), Mst. Nishat Ishaq v. Amjad Khan and 2 others (2014 CLC 71-Sindh), Ata Ullah and 6 others v. Sana Ullah and 5 others (PLD 2009 Karachi 38), Muhammad Afzal v. Muhammad Manzoor and 40 others (2013 YLR 85), Muhammad Khalid Pervez Ramay v. Talat Mehmood (PLJ 2015 Lahore 425), Mariam Bibi and 7 others v. Hakam Ali and others (2017 CLC Note 223, p. 250). Moreover, in Mst. Jan Ara and others v. Muhammad Zubair and others (2012 CLC 1630-Peshawar), it was observed that:- '

9. Since rule 11 of Order ibid being penal provision, to have construed strictly by considering the statement made in the plaint in the light of law applicable thereto and not to be resorted to unless, conditions for exercise of such drastic powers are fully satisfied. Moreso, if the plaint is suffering from any legal infirmity entailing its rejection, in such eventuality, the plaintiff has the right to amend his plaint for the clarity of vagueness appearing in the plaint, so that it may conform with the relevant provisions of law, as the cherished goal of law is that the matter to be decided on its merits so that the litigants are not to be deprived of their valuable rights in the wake of their technical knockout. The Court is empowered that instead of rejecting the plaint may act under Order VI, Rule 17, C.P.C. to allow the amendment of pleadings, inasmuch as under this rule the Court is not precluded from allowing an opportunity to remove the defect. Thus, this ground cannot be availed by the petitioners defendants for rejection of the plaint.' Similar view has been adopted and observed in Muhammad Ali Shaikh v. Sui Southern Gas Company Ltd. through Managing Director and 3 others (2014 YLR 444-Sindh), Nanik Ram and others v. Ghulam Akbar and 9 others (2016 MLD 52-Sindh).

6. In view of the above, if the petitioners could not mention the relief against the respondent No.26, despite the fact that he purchased the land from respondents-defendants Nos.18 to 25 and that property was not partitioned as yet, because nothing in support of any partition occurred, privately or through Court, was brought on record, the learned trial Court ought to have invoked jurisdiction under Order VI, Rule 16 and 17 of the Code of Civil Procedure, 1908 and would have granted opportunity to the petitioners to amend the plaint in this respect instead of rejecting the plaint in piecemeal to the extent of respondent No.26, which is not permissible as has been observed above.

7. In addition to supra, plaintiff in a suit is dominus litis who may choose persons against whom he wishes to litigate and he cannot be compelled to sue a person against whom he does not seek any relief and necessary party is a person who must be joined as party and in whose absence no effective decree can be passed at all by the Court. If a necessary party is not impleaded the suit itself is liable to be dismissed. Proper party is a person whose presence enables court to completely, effectively and adequately adjudicate upon all matters in dispute in suit, though he is not a person in favour of or against whom decree is to be passed. In the present case, as has been referred above, the respondent No.26 purchased the land from respondents Nos.18 to 25 and there is nothing on record to suggest that the land was partitioned prior to his purchase and it is settled principle of law that if a person purchases a land out of joint holding, he becomes a co-owner in the holding along with other co-owners and if the purchaser gets the possession of any land from the joint holding, such possession is always subject to the partition of Khata.

8. So far as the case law relied upon by the learned counsel for the respondents is concerned, with utmost respect, the same has no relevance to the facts and circumstances of the case in hand; thus, it is not helpful to the respondents.

9. The crux of the above discussion is that the learned Courts below while passing the impugned order and judgment have erred in law and have deviated from the settled principles of law, thus, have committed material illegality and irregularity as well as have travelled beyond the vested jurisdiction; thus, the impugned order and judgment cannot be allowed to hold field further. Resultantly, the civil revision in hand is accepted, impugned order and judgment are set aside, consequent whereof application under Order VII, Rule 11 of C.P.C. filed by the respondent No.26 will be deemed to have been dismissed.

10. No order as to the costs. ZC/A-14/L Revision allowed.