2017 PLP 1922 (MLD)

MUHAMMAD YOUNIS THAHEEM, J.

Through the instant appeal, the appellant has assailed order/judgment dated 10.9.2013 passed by learned Civil Judge/Illaqa Qazi-1, Dir Lower at Timergara, whereby plaint of plaintiff/appellant was rejected under Order VII Rule 11 of C.P.C.

2. Brief facts of the case are that plaintiff/appellant filed a suit for decree of declaration along with other reliefs fully detailed in the plaint against defendants/respondents in respect of suit property on the ground that he is purchased owner of the same property from defendants Nos. 3 to 10 through their attorney Yousaf Khan, defendant/respondent No.1 by way of oral agreement in sum of Rs. 4 karor & 50 lakh and paid rupees 50 lac through cheque No.0068266 dated 20.07.2012 of Allied Bank, Timergara while rupees four karor was allegedly paid to defendant No.1 in the presence of witnesses in his Hujra in the last days of August, 2012, to same defendant No.1.

3. On appearance the defendants Nos. 1 to 10 contested the suit through their attorney Yousaf Khan. Similarly, defendant/respondent No. 12 Mian Aziz Ghafoor also contested the suit. Both the sets of defendants filed their respective written statements, wherein they raised several objections both legal as well as factual. During pendency of suit, the defendant No. 12 also submitted an application for rejection of plaint under Order VII Rule 11 of C.P.C., which was resisted by plaintiff/appellant by filing replication, the learned trial Court after hearing arguments of the parties accepted the same application vide impugned order dated 10.9.2013, and rejected the plaint, resultantly, suit of plaintiff/appellant was dismissed.

4. Feeling aggrieved, the appellant filed appeal before the learned appellate Court, who after hearing returned the same appeal to the appellant vide impugned order/judgment dated 24.01.2015 for its filing before the proper forum due to lack of its pecuniary jurisdiction, however, present appellant instead filed petition for review of order dated 24.01.2015 which afterward was dismissed on 14.4.2015, hence, the present appeal.

5. Valuable arguments of learned counsel for the parties heard and requisitioned record perused with their able assistance.

6. From perusal of the record it reveals that present appellant filed a civil suit for declaration on the ground that he is purchased owner and in this respect he paid Rs. 50 lakh vide cheque No. 0068266 Allied Bank Timergara dated 20.7.2012 to defendant/respondent No. 1 and rest of the amount worth rupees four karor was paid in the last days of August, 2012 at his 'Hujra' in cash, but the suit value was fixed notionally by the appellant in his plaint for the purpose of Court fee and jurisdiction as following:-- (i) Rs.200/- for relief ( ); (ii) Rs. 200/- for relief ( ); (iii) Rs. 20,000/- for relief ( ); and (iv) Rs. 200/- for relief ( )

7. From the perusal of plaint it transpires that the subject-matter of the suit is more than Rs.4,50,00,000/-, but no court fee was affixed; The defendant No.12 moved an application that suit of plaintiff, neither discloses cause of action nor has locus standi. Besides, format of the suit was improper and was not properly valued and the relief sought was not falling within the ambit of section 42 of Specific Relief Act, so, on hearing of appellant, plaint of present appellant was rejected by learned trial Court under Order VII, Rule 11 of C.P.C. on the reasons mentioned in the impugned order dated 10.09.2013. The relevant operative part of the impugned order/judgment dated 10.09.2013 of learned trial Court is reproduced as below:-- "Bare reading of the plaint shows that it does not disclose any cause of action nor the plaintiff has any 'locus standi' against the defendants. It is also to be noted that the form of suit is not proper and the relief claimed does not fall within the ambit of Section 42 of the Specific Relief Act as no right whatsoever of the plaintiff has been infringed. Worth to mention here the plaintiff has self stated that the property in question is worth of millions but the court fee has not been affixed with the plaint. Keeping in view the above discussion the application under Order VII Rule 11 is accepted and in consequence of which the instant plaint stands dismissed. Parties to bear their own cost."

8. The appellant feeling aggrieved filed civil appeal before the learned District Judge/Zila Qazi, Dir Lower at Timergara, which was entrusted to the learned Additional District Judge/Izafi Zila Qazi-1, Dir Lower at Timergara for disposal, who vide order dated 24.01.2015 returned the appeal to the appellant to file it before this Court. The relevant part of the order of appellate Court is reproduced as below:-- "Since the value of the appeal for the purpose of jurisdiction and court fee was wrongly determined which would be beyond jurisdiction of this Court as admitted by the counsel for the appellant at the bar, so, therefore, this appeal is returned for lack of jurisdiction. The appellant is directed to revalue it in accordance with the value of the property and thereby present it before the august Peshawar High Court, Peshawar Mingora Bench, Dar-ul-Qaza Swat, if so desired. The reader of the Court is directed to obtain copy of the appeal and signature of the appellant while returning the original appeal and make the entry in this regard in the relevant register. Parties to bear their own costs."

9. Thereafter, the present appellant instead of filing appeal before this Court in consequence of order dated 24.01.2015 of learned appellate Court i.e. Additional District Judge, filed review petition before the same Court of learned Additional District Judge, which was declined/dismissed after hearing. Consequently, the appellant again filed the instant appeal.

10. From perusal of judgment of learned trial Caourt, it reveals, that the plaint of appellant/plaintiff was rejected and suit was dismissed due to non-disclosure of cause of action, having formal defects in the suit, non affixation of Court fee, improper form of suit, wrong relief etc as enumerated in the reproduced part of impugned order, so in this regard the learned trial Judge was under legal obligation to have directed the appellant to either withdraw his suit to remove all formal defects by seeking proper relief with proper suit valuation and affixation of court fee or had provided him an opportunity to amend it but the learned trial court did not properly exercise its jurisdiction vested in it, therefore, the order of learned trial Court dated 10.9.2013 is without lawful authority, without just cause or reason, so is void. In this respect wisdom is derived from the judgment of Hon'ble Lahore High Court, in case W.P. No.15233 of 2003 titled as "Ghulam Abbas v. District Judge Jhang and 10 others" (2004 CLC 1193), which relevant portion is quoted below:-- "Entire emphasis of respondents Nos. 1 and 2 was that petitioner did not produce the deposit receipt which for the reasons noted above, is without any lawful basis/substance. Besides inherent powers of a Court to set right the record and to do complete justice between the parties, ignoring even their review powers, under the general principles known for administration of justice, they had power to rescind their own illegal and void orders. Reference in this behalf can be made to the alighted judgment of the Honourable Supreme Court in the case of The Engineer-in-Chief Branch through Ministry of Defence, Rawalpindi and another v. Jalaluddin PLD 1992 SC 207." Similarly, same principle that if order is passed without lawful authority is void, has been enunciated in the judgment in case titled "Noor Muhammad v. Additional District Judge Mianwali and 2 others" (2009 CLC 1042).

11. Thus in view of above, this Court is of the firm view that learned trial Court should have provided opportunity to the appellant for removal of formal defects in his plaint or had returned it to the plaintiff/appellant or had directed him to affix requisite Court fee or had asked him to amend his plaint who had not done so but had straight away rejected the plaint.

12. The controversy among the parties as alleged in the plaint that defendant No.1 on behalf of defendants Nos.2 to 10 agreed to sell one of their property in lieu of sale amount of Rs.4,50,00,000/- out of which plaintiff had paid Rs.50 lakh to the defendant No.1 through Bank cheque No. 0068266 of Allied Bank, Timergara and same fact has been admitted by defendant No.1 with submission that the same amount has been returned to the plaintiff/appellant but had denied the receipt of four karor rupees, so, in view of such like counter pleas, the plaint prima facie not only discloses cause of action but prima facie plaintiff has shown strong locus standi to file the suit.

13. Similarly, due to formal defects suit of plaintiff/appellant has been rejected under Order VII Rule 11 of Civil Procedure Code, 1908, which rejection of plaint is against the mandate of law as plaint could not be rejected due to some formal defects or wrong fixation of suit value or seeking improper relief or non-affixation of Court fee at the most learned trial Court had framed preliminary issue in this respect or had provided an opportunity to plaintiff to amend his plaint with regard to its reliefs etc. but had not exercised its vested powers particularly when part payment through cheque was alleged.

14. So far as the argument of learned counsel for the respondents that instant appeal is barred by time is concerned. Indeed, learned appellate Court vide order dated 24.01.2015 had returned appeal to the appellant with the direction to file it before High Court, but instead of filing appeal before this Court, present appellant filed a review petition, so, limitation period would run from the date of returned i.e. 24.01.2015 and instant appeal has been filed after dismissal of review petition, so is liable to dismissal is barred by time is concerned, suffice it to say that this Court is of the view that since impugned order dated 10.9.2013 passed by learned trial Court is without lawful authority, void, perverse and contrary to law; and no other amount in cash was remained, so, it is settled law by now that against void order no limitation runs. In this respect wisdom is derived from the Judgment of Hon'ble Supreme Court of Pakistan in case reported in PLD 2007 SC 262(g).

15. Similarly, when the present appellant had taken wrong course before the wrong forum by filing review petition instead of filing appeal before this court, so, this could be treated as wrong advice or mistake of his counsel and not of appellant to suffer adversely as valuable rights of parties are involved. So, in the instant case when impugned order of learned trial Court is void itself then it would not come in the way of administration of justice. Moreover, the present appellant along with the instant appeal has also submitted an application for condonation of delay and the grounds advanced in the application for condonation of delay are though reasonable, but in view of above as impugned order is void, so there was no need for such application as the appellant in person bona fidely pursued his cause for justice from pillar to post, hence, in view of the above, the argument of learned counsel for the respondents that the instant appeal is time barred is misconceived and has no force, so, is repelled.

16. Thus, what has been discussed above, this appeal is allowed, judgments of learned trial Court as well as of review Court are set aside and case is remanded to learned trial Court with direction to return the plaint to the plaintiff to file a fresh suit with proper pleadings, reliefs, suit valuation by affixing court fee under the law. No order as to costs. ZC/56/P Case remanded.