2006 PLP 1839 (CLC)

SYED ASGHAR HAIDER, J.

The facts giving rise to the petition are that Karam Ali petitioner/plaintiff filed a suit for declaration on the basis of agreement, dated 25-6-1978 seeking a declaration that he was owner in possession of the suit-land and in the alternate, a prayer was made that specific performance be ordered of this agreement. The learned trial Court held that the suit was not maintainable resultantly, plaint was rejected under Order VII, rule 11, C.P.C.

2. Aggrieved thereof, the petitioner filed an appeal which was dismissed, hence the present petition.

3. The learned counsel for the petitioner has vehemently contended that both the Courts below concurrently committed a material illegality and they non-suited him wrongly. Alternate pleas are not barred in law, the plaint clearly reveals that the suit was for declaration but there was also a prayer for alternate relief of specific performance.

4. The learned counsel for the respondents has vigorously defended the impugned judgment and submitted that the conduct of the petitioner was not above board, there was deliberate concealment to avoid court-fee. He further submitted that the point of limitation was also raised before the lower Appellate Court, the petitioner was granted ample opportunities to amend pleadings but of no avail. Further the revisional jurisdiction is meant to correct jurisdiction errors and the scope is limited in this context.

5. I have heard the learned counsel for the petitioner and perused the impugned judgment.

6. The petitioner is correct to submit that there was a plea of alternate relief in the plaint, this is reflected in the head note as well as the prayer paragraph of the plaint. It is interesting to note that this point was duly noted by the lower Appellate Court but it did not take the correct view in accordance with law. The petitioner has been concurrently non-suited and has been virtually condemned unheard. Law required adjudication on merits and technicalities cannot be permitted to stifle justice. Further the petitioner has been non-suited under the provisions of Order VII, rule 11, C.P.C. The provisions of Order VII, rule 11, C.P.C. read:-- "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 undervalued 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." These provisions have to be applied strictly in consonance with the spirit of enactment. The Court can reject the plaint if it does not disclose a cause of action, relief is undervalued or the plaint is written upon an insufficiently stamped-paper or the suit is barred. Even if the plaint is to be rejected, when it is undervalued or written on an improperly stamped-paper, the petitioner has to be granted time to rectify the defect. The lower Appellate Court adverted to the rejection of plaint on valuation but it did not provide any opportunity to the petitioner to rectify the fault, thus, it incorrectly applied the law. The trial Court non-suited the petitioner holding that a suit for declaration is not maintainable on an agreement to sell, it completely lost track that there was an alternate prayer in the plaint asking for specific performance. Alternate pleas are not barred in law, the Court is empowered to grant alternate relief if facts are not inconsistent between the two reliefs, even if the plaintiff has not made a specific prayer in this respect. I am fortified in my view by the following precedents AIR 1947 Lah. 79 and AIR 1946 Nag.

112. The provisions of Order VI, Rule 2 permit the party to state all material facts in the present petition, the facts were there. Therefore, both the Courts below concurrently misapplied the provisions of VII, rule 11, C.P.C. and non-suited the petitioner, wrongly this resulted into a material illegality, therefore, this Court would be eminently justified in setting aside the current judgments. The conduct of the petitioner is also not platable and the whole confusion qua declaration was introduced only to avoid proper court-fee. This deception caused unnecessary litigation and C the respondent was exposed to uncalled for, legal costs and expenses. Further this resulted into the wastage of precious time of the Courts. Resultantly, this petition is allowed, the judgment and decree dated 4-4-1993 passed by the lower Appellate Court and Order and decree dated 30-9-1991 passed by the trial Court are set aside, the proceedings are remanded to the trial Court with a direction to hold a complete trial and adjudicate and determine the matter on merits the petitioner shall pay the court-fee as determined by the trial Court, the respondents shall be free to raise all legal and factual objections. The petitioner is taxed to costs of Rs.4,000 which shall be payable to the respondents before the commencement of the proceeding before the trial Court for this improper behaviour. S.M.B./K-55/L??????????????????????????????????????????????????????????????????????????????????? Petition allowed.