2017 PLP 29 (CLCN)

ARSHAD MAHMOOD TABASSUM, J.

Respondents Nos.1, 2 and 3, on 14.05.2008, instituted a suit for declaration, mandatory and perpetual injunction, averring in the plaint that they along with defendants Nos.1 to 5, being real brothers and sisters, were legal heirs of Fazal Khan alias Fazal, who owned certain landed property, which on his death, devolved upon his legal heirs; that plaintiffs Nos.1 and 2 and defendant No.1 settled abroad by acquiring nationality of USA and intended to get the land inherited by them, partitioned through process of law, but Martial Law Regulation No.115, was a hurdle in their way, due to which they invented a device that their mother Mst. Wilayat Jan (who was alive at that time) and defendants Nos.2 to 5 should alienate their share in the land in favour of defendant No.1 and after completion of partition proceedings, the said defendant should retransfer the shares of the plaintiffs in their favour; that accordingly the suit land was transferred in favour of defendant No.1 through mutation No.1779, dated 24.08.1991; that such transfer was fake and just a device to avoid the complication of Martial Law Regulation No.115; that plaintiffs and defendant No.1 applied for the partition of the suit land, however, in the meanwhile, the embargo of Martial Law Regulation No.115 was lifted and that the plaintiffs asked defendant No.1 to fulfil his commitment and transfer the share of the plaintiffs measuring 25-kanals and 13-marlas out of land measuring 34-kanals and 4-marlas in their favour, but he refused to do so. Plaintiffs, therefore, instituted the suit claiming the following relief:- "It is therefore, respectfully prayed that the decree for declaration, mandatory and perpetual injunction may kindly be passed against the defendants Nos.1, 6 and 7 in the following manner:- i. That the plaintiffs are entitled to get 25-kanals 13-marlas out of the suit land fully described in the proceedings para No.5 above out of 34-kanals 4-marlas. The alienation vide mutation No.1779 dated 24.08.1991 in favour of defendant No.1 on behalf of defendants Nos.2 to 5 and Mst. Walayat Jan was conditional transfer and the defendant No.1 is bound to transfer 25- kanals and 13-marlas out of the suit land in favour of plaintiffs. ii. That the defendant No.1 be ordered to get transfered the land measuring 25-kanals 13-marlas out of the suit land measuring 34-kanals 4- marlas in favour of the plaintiffs and the defendants Nos.6 and 7 be also ordered to amend the Revenue record in favour of the plaintiffs accordingly. iii. That the defendant No.1 be also restrained to alienate any portion of the suit land with the help of defendants Nos.6 and 7 through his attorney, agent or assignee till final disposal of the instant case. iv. Ad-interim injunction is also prayed for."

2. The suit was contested by defendants Nos.1 to 4 on various grounds, including lack of cause of action, limitation, estoppel etc. and claimed that defendant No.1 was exclusive owner of land measuring 34-kanals 4-marlas on the basis of mutation of gift on behalf of defendants Nos.2 to 5 and Mst. Walayat Jan, his real mother. It was also maintained that under the Muhammedan Law, no conditional gift could be made and any such condition attached to the gift was void and the gift was absolute. Along with the written statement, the defendants also submitted an application under Order VII, rule 11, C.P.C., which was dismissed by the learned trial court vide order dated 29.02.2009. The defendants, then preferred a petition under section 115, C.P.C., which was allowed by the learned Additional District Judge vide judgment dated 29.10.2010, hence, this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973.

3. At the very outset of his arguments, learned counsel for the respondents has argued that the instant constitutional petition is not maintainable and in view of the fact that the revisional court had rejected the plaint through the impugned judgment and the judgment, passed by the learned revisional court amounted to a decree as defined by section 2(2) of the C.P.C. and every decree, being appealable, an appeal was competent and not a constitutional petition. He has relied upon the dictum laid down in case titled "Memon Educational Board and Society, Karachi v. Munawar Hussain" (2003 SCMR 157).

4. It appears that vide order dated 21.10.2015, Mr. Imran Hassan Ali, Advocate was appointed Amicus Curiae to assist the Court on this point. The said Amicus Curiae has pointed out that consensus of the authorities is on the point that such an order, as impugned herein, does not amount to a decree instead it is an order, which is assailable through a constitutional petition. He has placed reliance on the following case law:- i. "Syed Qadir Bakhsh Shah and others v. Additional District Judge Dera Ghazi Khan and others" (2004 SCMR 1638), ii. "Kaley Khan v. Additional District Judge Multan and 3 others" (2006 MLD 210) and iii. "Lahore Race Club through Secretary and others v. Raja Khushbakht ur Rehman" (2008 CLD 1117)"

5. On merit, it has been argued by learned counsel for the petitioners that the plaint in the suit did disclose triable issues and the matter could be decided after recording of pro and contra evidence of the parties, hence, the judgment of the learned revisional court, whereby the plaint has been rejected, is against law and facts of the case and merits setting aside.

6. Conversely, learned counsel for respondents Nos.1 and 3 has fully supported the impugned judgment and decree. However, learned counsel appearing on behalf of respondent No.2 has not contested the instant petition.

7. As regards maintainability of the instant constitutional petition, it is observed that the learned revisional court in exercise of its powers vested in it under section 115, C.P.C., had passed the impugned judgment and not acting as court of first instance (original jurisdiction). It has been ruled by the Apex Court in case titled "Syed Qadir Bakhsh Shah and others v. Additional District Judge Dera Ghazi Khan and others" (2004 SCMR 1638), that those orders and judgments are appealable under section 96, C.P.C., where lower court happened to exercise original jurisdiction and that question of appeal under section 96, C.P.C. was referable to the nature of the jurisdiction exercised and not to the nature of the order passed. The relevant portion of the said judgment reads as under:- "

5. We are of the view that the very idea that the order of learned District Judge was appealable under section 96, C.P.C. is not in accordance with law. Only those orders and judgments are appealable under section 96, C.P.C. where the lower Court happened to exercise original jurisdiction. In the instant case the District Judge had passed the order in his revisional jurisdiction and not original jurisdiction. The question of appeal under section 96, C.P.C., is referable to the nature of jurisdiction exercised and not to the nature of order passed." Likewise in the case (2006 MLD 210) referred to above, a learned Division Bench of this Court while answering the question "Whether in a case where an order of rejection of plaint in terms of Order VII, rule 11, C.P.C., is passed by a Court exercising revisional jurisdiction, a first appeal in terms of section 96, C.P.C. would be available to the aggrieved party?", observed as under:-

6. Now the facts of the said case were that the application filed by a defendant in a suit, for rejection of plaint, was dismissed by the learned trial Court but was allowed by a learned Additional District Judge in exercise of revisional jurisdiction. The observations made by this Court that-the order passed by the ADJ being for rejection of plaint and a decree in terms of section 2(2), C.P.C. it was appealable under section 96, C.P.C. It was in this context that the aforenoted observations B were made by the Hon'ble Supreme Court of Pakistan. In view of the said opinion recorded by the Hon'ble Supreme Court of Pakistan, we have nothing further to say and respectfully following the same, we do hold that, in the circumstances of the present cases, a Regular First Appeal under section 96, C.P.C. would not be available against the orders passed by revisional Courts rejecting the plaints. The writ petitions are accordingly found to be competent provided the grounds stated in Article 199 of the Constitution for declaring the orders passed by the revisional Courts to be without lawful authority are available.

8. The original civil jurisdiction of the High Court has been defined by the Apex Court in the case (2008 CLD 1117) in the following words:-

12. The term "original jurisdiction" means "jurisdiction in the first instance", jurisdiction to take cognizance of a cause as its inception, try it, and pass judgment upon the law and facts. As per Black's Law Dictionary, "Original Jurisdiction" is the authority of a Court to hear a case in the first instance, i.e., to function as a Trial Court and the "Appellate Jurisdiction" is the authority of a Court to hear a case that has first been decided by a lower Court. Jurisdiction of a Court is never established by the Court itself but by some authority external to it either in a Statute or the Constitution. "Original Civil Jurisdiction" of a Court is such jurisdiction where it is empowered to entertain suits and such proceedings of civil nature which are initiated before the said Court and entertained by it as a Court of first instance and are decided by it. Sub-Article (2) of Article 175 of the Constitution of Islamic Republic of Pakistan enshrines that, "no Court shall have any jurisdiction save as is or may be conferred on it by the Constitution or under any law". The jurisdiction can be conferred on any Court including a High Court by a Statute which may be provided for initiating the proceedings in that Court as a Court of first instance having power to entertain and decide it. Such court will thus be vested with original jurisdiction. If it relates to civil disputes, it will be termed as "Original Civil Jurisdiction." It is also a common proposition that Statutes are promulgated conferring jurisdiction on the High Court to initiate proceedings as a Court of first instance for purposes of exercise of jurisdiction.

9. As regards the case law relied upon by the learned counsel for the respondents (2003 SCMR 157), the same is distinguishable, in that in the said case, application under Order VII, rule 11, C.P.C., was dismissed by the learned trial court and the Apex Court observed that the said order amounted to a decree as defined in section 2(2), of the C.P.C., but in the instant case, the plaint had been rejected by the learned revisional court and not by the learned trial court.

10. In the light of the case law referred to above, no room is left to doubt that the instant petition is quite competent under the law and the objection raised by learned counsel for the respondents is misconceived.

11. It is also observed that learned counsel for the respondents, when confronted that if the instant writ petition is not maintainable, then, the instant petition can be converted into an appeal, conceded to the above legal position and maintained that in that eventuality, the scope of the interference with the impugned order would stand widened.

12. As regards merit of the case, it is observed that in the suit, the impugned mutation of gift has been assailed on the ground that it was conditional gift, in that defendant No.1 had undertaken to retransfer the respective shares of the plaintiffs in their favour after partition of the land, I am afraid such a condition cannot be attached to a gift and if it had been attached with the gift, such condition was void and the gift was valid. So has been mentioned in Article 164 of Muhammedan Law, which reads as under:- "

164. Gift with a condition.-- When a gift is made subject to a condition which derogates from the completeness of the grant, the condition is void, and the gift will take effect as if no conditions were attached to it." Reliance in this regard may be placed on the case titled "Bahadur v. Jan Muhammad" (PLD 1960 (W.P.) Karachi 745), relevant portion whereof reads as under:- "The learned Assistant Judge was perfectly justified in holding that the conditions attached to the gift do not render it invalid. He was also right in holding that the breach of such conditions did not render the gift inoperative. This view is keeping with the rule of Muhammadan Law that when a gift is made subject to a condition which derogates from its completeness, the condition is void and the gift will take effect as if no condition was attached to it".

13. The impugned mutation of gift was sanctioned on 24.08.1991, whereas the suit was instituted on 14.05.2008. A declaratory suit could be filed within a period of six year's from the accrual of cause of action, thus, from the statement contained in the plaint itself, the suit was barred by time. This being so, there was no requirement of framing of issues and recording of evidence and the plaint was liable to be rejected under Order VII, rule 11, C.P.C. Reliance in this regard may be placed on the case titled "Noor Din and another v. Additional District Judge, Lahore and others" (2014 SCMR 513), the relevant portion whereof reads as under:- The present suit was filed in the year 2012, more than forty years after the gift mutation. The object of the powers conferred upon the trial Court under Order VII, Rule 11, C.P.C. is that the Courts must put an end to the litigation at the very initial stage when on account of some legal impediments full fledged trial will be a futile exercise. In view of the above facts the suit of the plaintiffs/respondents challenging the gift mutation was on the face of the record barred by time and there was no need for recording of evidence. Consequently, this petition is converted into appeal and allowed. The impugned judgment and orders are set aside, the application of the petitioners under Order VII, Rule 11, C.P.C. is allowed and the suit filed by respondents Nos.3-18 is therefore dismissed as barred by time.

14. In the light of above discussion, it is concluded that the learned revisional court has properly exercised its jurisdiction, vested in it by the law and has rightly rejected the plaint. No illegality or irregularity can be attributed to the impugned judgment calling for interference by this Court in its constitutional jurisdiction. This petition, therefore, has no merit, which fails and the same is hereby dismissed. MH/G-48/L Petition dismissed.