P L D 1995 Peshawar 164 (PLP)

Date of hearing: 9th April, 1995. This revision petition is directed against the order of the District Judge, Charsadda, dated 14‑3‑1992 whereby the appeal of the petitioner plaintiff filed against the judgment and decree of the Civil Judge, Charsadda, dated 25‑11‑1992 under which the application for issuance of temporary injunction was refused and so was the plaint.

2. The facts which formed the background of this case briefly stated are that the petitioner instituted Civil Suit No.56/1 of 1991 on 20‑10‑1991 before the Senior Civil Judge, Charsadda, against the Public Health Department and 5 others for declaration and permanent injunction. It was averred in the plaint that the petitioner‑plaintiff on the basis of gift deed dated 5‑8‑1989 transferred his land measuring 9 Marlas out of Khasra No.580 in favour of the Public Health Department for the purpose of construction of a tube‑well on the condition that after the construction of the tube‑well, the respondents department would employ the relatives of the petitioner as Chowkidars etc. Upon completion of the construction of the well, respondents were approached by the petitioner for the hiring of his men as employees as per condition of the deed but appointment of stipulated persons was not only refused but an outsider, i.e. respondent No.6 had already been hired in that place. The petitioner prayed that since the respondents have violated the terms and conditions of the `Hiba Nama' therefore, the gift is liable to be considered as cancelled. Alongwith the suit, the petitioner had also filed an application for the grant of temporary injunction praying that the appointment of defendant No.6; Mir Ahmad Khan, Chowkidar, may be declared as illegal and without lawful authority and the position of Chowkidar in question be declared vacant till the decision of the suit. The suit was contested by the defendants respondents by submitting written statement raising many factual and legal objections. However, application for grant of injunction was contested by respondent No.6 only. The learned trial Court refused the application and. while deciding the application also rejected the plaint of the petitioner‑plaintiff with the observations that after the execution of the gift deed the possession of the gifted property was delivered, thus attaining the final phase of the gift. the, gift had become irrevocable while rejecting the plaint held that plaintiff had no cause of action. Appeal filed by the petitioner against the order of the Senior Civil Judge before the District Judge, Charsadda, did not find favour with him also, hence, the present revision petition.

3. Arguments of Mr. Mir Qasim Shah, Advocate, for the petitioner and Mr. Tahir Hussain Lughmani, Assistant Advocate General, for the respondents heard. Record examined.

4. The main contention of the learned counsel for the petitioner is that the trial Court has wrongly and illegally rejected the plaint on the ground that it lacked cause of action. He maintained that the respondents, without the consent and knowledge of petitioner, made erasure in the conditional line of deed and that the trial Court without giving opportunity of hearing to the petitioner‑plaintiff had illegally exercised its powers under Order 7, Rule 11, C.P.C. by rejecting the plaint. He further maintained that deed in question is not registered therefore, it would not make the gift valid. As against this the learned counsel for the respondents submitted that the condition regarding the employment of the men of the petitioner at the tube‑well was taken out with the consent of the parties to the `Hiba Nama' and that after the possession of the land is transferred the gift becomes final and irrevocable. He insisted that power to reject the plaint has rightly been exercised by the trial Court under Order 7, Rule 11, C.P.C.

5. For the proper appreciation of the issue, Order 7, Rule 11, C.P.C. is reproduced as under:‑‑ "O.7, R.11. Rejection of plaint.‑‑‑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 under‑valued, 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."

6. The plain reading of law would suggest that the rejection of the plaint under clause (a) is contemplated when the plaint does not disclose any cause of action. The question that poses for determination is as to what would be elements and ingredients that would constitute a cause of action? If the pretension of the petitioner‑plaintiff averred in the plaint is taken to be correct, the question is whether it entitles him to the relief claimed or not in law? The case of the plaintiff as set out in the plaint of the present suit is that he had transferred his land measuring 9 Marlas to the respondents‑defendants on the basis of the Hiba deed for the construction of tube‑well with the claimed condition that his persons shall be employed as employees and since the respondents did not honour the terms and conditions attached with the gift it should be revoked and gift be considered cancelled even though possession has been delivered. This contention is totally devoid of force and substance. The law on the subject suggests otherwise. Under section 164 of the Muhammadan' Law by Mulla it is provided that "When a gift if 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." It is one of the essentials of the validity of the gift that there should have been a delivery of the possession of the subject of the gift and when the donor divests himself of the ownership and physically departs with the possession of the property the gift is complete.

7. The next contention of the learned counsel for the petitioner is that deed of gift is compulsorily registrable under section 17 of the Registration Act and `Hiba Nama' dated 5‑8‑1989 not being registered has no value in the eyes of law and that it does not transfer the property from the donor to the donee. This argument of the learned counsel is based on fallacious assumption that gift is created by written deed. In Muhammadan Law, writing is not essential to the validity of a gift of movable or immovable property. Under section 123 of the Transfer of the Property Act, a. gift must be made by a registered instrument but that section is not applicable to gift executed under Muhammadan Law. As observed earlier, the essentials of a gift under the Muhammadan Law are, firstly, declaration of gift by the donor, secondly, acceptance on behalf of the donee and lastly delivery of possession of the object of the gift by the donor to the donee. Thus, when a person makes a gift by executing a deed though the deed is not registered as required under the Registration Act, the gift is still complete and valid as long as the formalities prescribed by Muhammadan Law are complied with. However, if a gift is made by a written registered instrument without delivery of possession it is invalid in law. Admittedly, the petitioner has delivered the possession of land in question whereon the respondents‑Public Health Department have raised a construction of the tube‑well. The correctness of the contention of the petitioner would not invalidate the gift even if the case is decided in his favour. The trial Court has rightly rejected the plaint on account of failure to disclose the cause of action.

8. Before parting with the judgment I may add that Government appointments should always be made on' the basis of merits considering it as a sacred trust of the public. Any deviation from the rules of appointment can result in chaos and as such no discipline can be maintained. In the circumstances and for the foregoing reasons I uphold the judgments of the two Courts below and find no merits in this revision petition which is hereby dismissed with no order as to costs. AA/1798/P Revision dismissed.