P L D 1996 Quetta 31 (PLP)

IFTIKHAR MUHAMMAD CHAUDHRY, J.‑‑This Constitutional petition is directed against the order, dated 16th May, 1995, passed ‑by Additional District Judge‑III, Quetta, in Civil Appeal No. 19 and Civil Revision No.3 of 1995, whereby on setting aside the order, dated 22nd September, 1994, passed by Senior Civil Judge, the suit filed by petitioner for declaration, permanent injunction and possession, concerning the ancesstral property, had been dismissed. The matter pertains to‑ the civil rights concerning the legacy, left by Haji Noor Muhammad, predecessor‑in‑interest of the parties. Initially on 29th January, 1991, petitioner Gul Bibi and One Sardar Muhammad, son of her sister Mst. Sadato Bibi, instituted a suit for declaration, injunction and partition against Mst. Bas Bibi and Mst. Noor Bibi, widow and daughter of late Muhammad Noor, brother of petitioner Mst. Bibi Gul, in 'respect of the landed property owned by Noor Muhammad, their predecessor in‑interest situated in Quetta Tehsil, description whereof, was given in the plaint. The suit was withdrawn as per order, dated 27th May, 1991. Thereafter, second suit was filed by petitioner and one Sardar Muhammad against respondent Mst. Khore Bibi daughter of Muhammad Noor (it is to be noted that in previous suit Mst. Khore Bibi was named as Mst. Noor Bibi) add two other persons Wali Jan and Nasibullah for declaration, injunction and partition, in respect of the property, which was the subject‑matter of earlier suit.' During pendency of second suit, respondent Abdul Hamid son of Haji Muhammad Khan and Abdul Qadir son of Mir Alain, were also impleaded as party, as they have purchased few shares out of disputed property from the owner when the matter was under‑consideration an application under Order VI, Rule 17, C.P.C., was filed by plaintiffs, seeking permission to amend the plaint, by allowing them to claim relief of cancellation of sale‑deed, dated 9th July, 199 1, on the basis of which, respondents Nos. I and 2 have purchased the property, with further prayer that since Abdul Rehman son of Muhammad Noor nephew of plaintiff had died issueless, therefore, she is entitled to have legacy from his property, as well, according to the Injunctions of Islam and as defendants fraudulently got mutated the total property of late Abdul Rehman on their names, without satisfying the ‑share of plaintiff, therefore, Mutation Entries Nos. 19, 307 and some share in Mutation No. 158 be directed to be cancelled etc. The application, however, was disallowed by the trial Court on 17th November, 1991 simultaneously another application was moved on behalf of petitioner seeking withdrawal of suit with permission to file fresh plaint incorporating therein, fresh cause of action which has accrued to them, regarding their property left by late Abdul Rehman. This application was also dismissed on 17th November, 1993. Thereafter, a third suit for declaration permanent injunction ‑and possession was filed by petitioner Bibi Gulla against respondent. Mst. Khore Bibi, Abdul Hamid and Abdul Qadir as well as Tehsildar, settlement, on 3rd October, 1991. Alongwith the plaint an application under Order XXXIX, Rules I and 2, C.P.C. was also filed seeking interim injunction against respondents for restraining them not to sell, transfer or alienate the property in question. The learned trial Court granted ad interim stay. The respondents on 14th December, 1994, filed a miscellaneous application praying therein for vacating, the stay order and also dismissing the suit. the application was contested by petitioner and learned trial Court vide order dated 22‑9‑1994, dismissed the same Operative para. of the order is reproduced herein below,‑‑ "This order is showing that dispute between the parties about the inheritance of the ancestral‑ property has yet to be determined and will decide after recording the evidence,‑ therefore, the stay order was go vacated whereas, in the present case the plaintiff has filed for her share in the inherited property of her deceased nephew whereas, the previous case is also for the share of inherited of ancestral property, the subject matter of both the cases is totally, different. Further, the defendants have not given any provisions of law under which they want the dismissal of the case. Application for the dismissal of the suit filed by the defendant is not maintainable and it is dismissed. The respondents feeling aggrieved from the above order filed Civil Appeal and a Civil Division before the learned District Judge, which came up for hearing before Additional District Judge‑III, Quetta. who allowed the same by means of impugned order, dated 16th May, 1995, whereby on setting aside the order of trial Court, the suit filed by petitioner was directed to be dismissed, as such instant Constitutional petition, has been filed. 'Mr. Tariq Mehmood, Advocate appeared for petitioner, whereas Mr Basharatullah, Advocate, represented the private respondents. During course of arguments on merits, Mr. Basharatullah, Advocate raised important question, regarding maintainability of Constitutional petition against the order of. Civil Court passed in revisional jurisdiction under section 115, C.P.C. It was contended by him that impugned order having been pronounced with lawful authority and ‑ jurisdiction by learned Additional District Judge, cannot be interfered with merely on the assumption of its being erroneous etc. He emphatically contended that superior Courts have always discarded tendency of filing Constitutional petitions against the orders passed by competent Civil Court, in this behalf, reference was made by him to PLD 1976 Lah. 158, PLD 1974 SC . 139, 1979 CLC 573, PLD 1981 SC 522, PLD 1982 Lah. 690, PLD 1985 SC 131, PLD CLC 387, PLD 1987 SC 447, i989 CLC 42 and 656 and 1988 SCMR,

322. On the other hand Mr. Tariq Mehmood, learned counsel contended that 'Constitutional jurisdiction against an order passed by Civil Court in its revisional jurisdiction being without lawful authority and jurisdiction and void in the eye of law, can be invoked. He also relied on the judgments cited by Mr. Basharatullah, Advocate and further to elaborate his contention also made reference to 1987 SCMR 1371 and PLD 1991 SC '

65. Learned counsel also emphasised that Hon'ble Supreme Court in the case of Utility Store Corporation of Pakistan Limited V. Punjab Labour Appellate Tribunal and others PLD 1987 SC 447 has held that a Tribunal vested with jurisdiction to decide a particular matter has no jurisdiction to decide it rightly or wrongly as condition for grant. of jurisdiction is that it should decide the matter in accordance with law and when Tribunal goes wrong in law it goes outside the jurisdiction conferred on it., Since the impugned. order has been passed wrongly, therefore, the Court has gone outside the, jurisdiction, warranting interference by this Court, in exercise of jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan. Undoubtedly an aggrieved person can invoke the Constitutional remedy subject to the condition that the order under challenge has been passed without lawful authority and jurisdiction or the order is void and is the product of exercising an authority unlawfully by the functionary who was required under the statute to pass a right order, in accordance with law. In the judgments cited at bar by both the learned counsel the superior Courts have not laid down a strict rule, completely barring the Constitutional jurisdiction against the orders passed by Civil Court in revision under section 115, C.P.C., however, it has been emphasised that tendency of invoking Constitutional jurisdiction against the lawful order passed by Civil Court is required to be deprecated, because after availing an adequate remedy under section 115, C.P.C. if implied permission is awarded for invariably invoking, Constitutional jurisdiction it would tend to circumvent the provisions of section 115, C.P.C. wherein it has been provided that no second revision shall be competent and the order passed in revision by the Court ceased with the matter shall be final and absolute. In this behalf it would be relevant to note that in Hassan Din v, Hafiz Abdul Salam and others PLD 1991 SC 65 the Hon'ble Supreme Court re‑examined the judgment in the case of Noor Muhammad reported in PLD 1985 SC 131 held that the effect of the judgment given by this Court in Noor Muhammad's case, on the basis of which leave to appeal was granted, is not that a Constitutional petition is in no case permissible whatever the nature of the defect in the proceedings before the District Judge be, but that a mere illegality committed with jurisdiction shall not be a ground for entertaining a Constitution petition, For the above observations and principle laid down from time to time by the; Supreme Court, as discussed in the reports relied upon by both the learned counsel, we are persuaded to hold that there is no absolute restriction in invoking the Constitutional jurisdiction under Article 199 of the Constitution against an order passed in revision under section 115, C,P.C, subject to the condition that the order has been passed without lawful authority and jurisdiction or it being a void order is not sustainable in the eye of law and whenever it is found that impugned order suffers from any of these legal defects, Constitutional jurisdiction under Article 199 of the Constitution can legitimately be invoked by On merits, Mr. Tariq Mehmood, learned counsel for petitioner stated that Additional District Judge, had passed impugned order without lawful authority and jurisdiction, because respondents in application, dated 14th December, 1993, did not ‑raise objections, concerning non‑maintainability of suit, in view of the bar contained in Order 11, Rule 2, C,P,C. inasmuch as, in, the memo, of revision, no such objection was raised, Therefore, the Additional District Judge in exercise of revisional powers had no jurisdiction to interfere in the order of trial Court dated 22‑9‑1994. As such, under Article 09 of the Constitution, the impugned order deserves interference. Mr. Basharatullah, learned counsel frankly conceded that in the application no specific objection concerning maintainability of suit under Order 11, Rule 2, C.P.C. was raised. However, he urged that in the memo. of petition, it was mentioned that no cause of action to file a third suit was disclosed, therefore, the plaint under Order VII, Rule 7, C.P.C, was liable to be rejected. In view of the contentions raised by parties' counsel it would be appropriate to reproduce hereinbelow, operative para. from the impugned judgment:‑‑ "Arguments were also heard upon the revision petition, and have gone through the impugned order whereby ~ the application for dismissal of suit was dismissed, The impugned order reveals that the application has been dismissed on two‑fold grounds as mentioned hereinabove, So far as non‑quoting of proper Provision of law is concerned that is one ground for rejection of any application as it is the duty of the Court to apply the law applicable if it is not mentioned in the title of any application and as far as the opinion of the learned Judge of the lower Court is concerned in which it has been held that the subject‑matter of both the cases is totally different is also not based on law and facts of the case. As it is discussed earlier while disposing of the appeal that in both the cases share of inheritance in the disputed property were claimed and in the present suit Mst. Khore Bibi has claimed the share of late Abdul Rehman whereas late Abdul Rehman was also dead at the time when earlier suit was pending, rather he was not alive at the time of filing of earlier suits, one suit which was withdrawn without seeking permission for filing a fresh suit and the other which was pending at the time of filing of present suit, but she omitted a claim inheritance‑of her share concerning Abdul Rehman and under the law a party who omitted to claim any relief available to her at the time of filing of earlier suits is precluded from filing a suit with regard to that claim. Further, during the pendency of earlier suit an application for amendment with regard to share of late Abdul Rehman was filed, but the same was rejected but the same has not been challenged which also attained finality and in view of principle of finality attached to the same order, the respondent , No. I could not agitate the same in this suit afresh. " A perusal of the above order indicates that firstly learned Judge did not agree with the trial Court, as far as non‑mentioning of relevant law is concerned. In our opinion to this extent order appears to be correct. Secondly learned Judge noticed that in the third suit, Khore Bibi has claimed the share of Abdul Rehman. Factually this position is incorrect, because respondent Khore Bibi was defendant in all the three suits and she never claimed the share from the property of Abdul Rehman by filing a separate suit. The learned Judge also found himself convinced on the ground that the first suit was withdrawn without the permission of Court and Khore Bibi omitted to claim inheritance concerning Abdul Rehman therefore, now she cannot agitate her claim. Probably instead of using the name of Mst. Bibi Gulla,. the learned Judge has stated that Khore Bibi is claiming the share. However. the question regarding withdrawal of earlier' suit was not before the Court and as it has been observed herinabove, even in the pleadings no one amongst the respondents, stated that as in the earlier suit petitioner omitted to claim the share 'of Abdul Rehman, therefore, the third suit is not competent. Under these circumstances, the learned revision Court had no jurisdiction to dilate upon an issue in respect of which, no findings have been given by trial Court. It is to be Observed that in the third suit filed by petitioner claiming her share out of the legacy of Abdul Rehman, respondents have not filed written, statement and they submitted an application, mainly praying that stay order granted on miscellaneous application be withdrawn and the suit filed by petitioner be dismissed, with out stating relevant facts and law warranting its dismissal in a summary manner. In the circumstances, the Additional District Judge, instead of dilating upon the merits of the case or taking into consideration the issue which has not been agitated before the trial Court, would have rejected the revision with directions to respondents to file written statement incorporating the objections regarding non‑maintainability of suit, and then the trial Court, on having framed issues and proceeding with the matter, in accordance with law, would have disposed of the objection. Since the learned Additional District Judge has not exercised the jurisdiction. with lawful authority, therefore, the impugned order is not sustainable. For the foregoing reasons order dated 16‑5‑1995 is set aside to the extent of dismissal of suit consequently last suit filed by petitioner shall be deemed pending before trial Court. However, it, will be open for respondents to raise objection regarding non‑maintainability of suit, by submitting written statement and the Court, siezed with the matter, shall dispose of such objection, afresh strictly in accordance with law. As far as the order of Appellate Court relating to grant of injunction is concerned, respondents have filed, a separate revision, which shall be decided on its own merits. A.A./567/Q Order accordingly.