2015 PLP 2572 (YLR)

MUHAMMAD IQBAL KALHORO, J.

This civil revision is directed against the judgment dated 29-5-2010 and decree dated Nil passed by the Senior Civil Judge Ubauro in F.C Suit No.74/2009 filed by the applicants against the respondents and judgment and decree passed by the Additional District Judge, Ubauro dated 25-2-2013 in Civil Appeal No. 50/2010.

2. The relevant facts are that applicants filed the above stated suit for declaration and permanent injunction against the respondents seeking following reliefs:- (a) To declare that the plaintiffs being Ex-Grantees are in peaceful possession of suit land out of UA No: Nil measuring 180.00 acres of New Katcha of deh Daulatpur Taluka Ubauro District Ghotki hence cannot be dispossessed of suit land without due course of law. (b) To grant permanent injunction in favour of the plaintiffs and ad-interim injunctions during pendency of suit whereby defendants 9 to 28 may be restrained not to interference with peaceful possession and enjoyment of suit land by plaintiffs or create third party rights and further defendants Nos.2 to 8 be restrained not to harass, or dispossess plaintiffs, on the instigation and collaboration with defendants Nos.9 to 28 without due course of law. (c) To award costs of the suit. (d) To grant any other relief which this court deems fit and proper under the circumstances of case.

3. After due service, the respondents Nos.9, 11, 15, 17, 18, 19, 24 and 26 appeared before the trial court where they filed their joint written statement averring therein, inter alia, that the suit filed by the applicants was not maintainable under Section 11, C.P.C. as the same plaintiffs had earlier filed the Civil Suit on same cause of action against the same defendants which was dismissed by the trial court whereafter the plaintiffs had filed the appeal against the judgment and decree of the trial court which too was dismissed by the appellate court against which the applicants had filed a Civil Revision No.51/2008 before the High Court, but the same also met the same fate, hence the suit was barred under section 11, C.P.C. and was liable to be dismissed.

4. The record further reflects that an application under Order VII, Rule 11, C.P.C. was moved by the respondents Nos.9, 11, 15, 17, 18, 25 and 27 before the trial court with the prayer to reject the plaint as the suit was barred under section 11, C.P.C. The said application, after hearing the parties, was allowed vide order dated 29-5-2010 and the plaint was rejected. The applicants assailed the said order in Civil Appeal No.50/2010 which was heard by the Additional District Judge, Ubauro who vide his judgment dated 25-2-2013 upheld the findings of trial court in its order dated 29-5-2010, against which the applicants have preferred the instant civil revision.

5. Learned counsel for the applicants has contended that the impugned judgment and decree passed by the trial court as well as appellate court are illegal and unwarranted therefore are liable to be set aside. Per learned counsel the courts below have failed to consider the valuable rights of the applicants involved in the subject matter which without proper trial cannot be determined. He further contended that the courts below have not applied their judicial mind while passing the impugned judgments and decrees. He further stated that though previously the applicants had filed the suit on the same subject matter against the same parties with same prayer but the said suit was dismissed under Order XVII, Rule 3, C.P.C. without recording evidence of the applicants thus the principal of res judicata would not be attracted in the present case.

6. I have heard the learned counsel for the applicants and perused the material filed by him in support of the instant application. Earlier the applicants had filed F.C. Suit No. 68/2004 which was renumbered as F.C. Suit No. 108/2004 for declaration and permanent injunction against the same set of respondents on the same subject matter before Senior Civil Judge, Ubauro which was contested by the private respondents by filing their written statements upon which the trial court had framed as many as five issues and directed the applicants to lead their evidence thereon, but since they failed to adduce any evidence, the trial court vide its judgment dated 22-9-2008 dismissed the suit for want of evidence, which was assailed by the applicants in Civil Appeal No.23/2008 before learned District Judge Ghotki but the same was also dismissed by the appellate court vide judgment and decree dated 22-9-2008. It is the matter of the record that the judgment and decree of the appellate court was challenged by the applicants in Civil Revision No.51/2008 before this Court but the same also could not succeed.

7. The applicants, whereafter finding no other way, as they had not challenged the order of this court in Civil Revision No.51/2008 before Hon'ble Supreme Court, filed F.C Suit No.74/2009 mentioning therein the same facts with same prayer which they had maintained in their earlier suit and on the same subject matter against the same respondents These facts show that the learned courts below have rightly exercised their jurisdiction by rejecting the plaint under Order VII, Rule 11, C.P.C. which appears to be hit by the mischief under Section 11, C.P.C. The contention of the learned counsel that since the earlier suit was dismissed under Order XVII Rule 3, C.P.C, hence the vires of section 11, C.P.C. would not be attracted cannot be acceded to in view of following five conditions which can be applied to determine as to whether a particular case is hit by the principles of res judicata. (1) The matter directly and substantially in issue in the subsequent suit or issue must be the same matter which was directly and substantially in issue either actually (Explanation III), or constructively (Explanation IV), in the former suit. (2) The former suit must have been a suit between the same parties or between parties under whom they or any one of them claim. (Explanation IV). (3) The parties as afore-said must have litigated under the same title in the former suit. (4) The court which decided the former suit must have been a court competent to try the subsequent suit in which such issue is subsequently raised (Explanation II). (5) The matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by the court in the first suit (Explanation V).

8. Learned counsel was not able to point out any irregularity or pervercity in the findings of the learned lower courts below to justify interference by this court under its revisional jurisdiction as it is well settled law that the revisional jurisdiction under section 115 can only be invoked in cases where the courts below have assumed jurisdiction illegally or have not exercised jurisdiction vested upon them or while exercising the jurisdiction have committed any irregularity. If a court has jurisdiction under the law, it can decide the matter either way. The erroneous or perverse conclusions on the facts or law can be corrected in appeal, but a revision in such situation will not be competent unless it is brought on the record manifestly that a court while arriving at such conclusion has committed an error of law.

9. Besides above, I have examined minutely the judgment of appellate court dated 25-2 2013 which has attended to the merits of the case in its true perspective to arrive at the conclusion which cannot be interfered with by this court. For the purpose of convenience the relevant part of the judgment is reproduced herewith:-- "Moreover, at present the status of appellant/plaintiff over the suit land after expiry of grant period is not more than encroacher, which shows and proves that the appellant/plaintiff do not have any right, title over the property. Besides there was no effective prayer made by them in respect of their own title, legal right or character over the suit land. It is settled principle of law that suit for declaration may be filed seeking the relief of declaration in respect of his own title, legal right or character, but in the instant case, the appellants/plaintiffs have not sought any relief with regard to declaration of their own title, legal right or character and the relief prayed for is beyond the scope of section 42 of Specific Relief Act and by taking the benefit of dictum, the principles of law laid down by the Honorable High Court of Sindh in case of Muhammad Hamdan Shaikh v. Chairman Board of Secretary Education and others reported in PLD 1998 Kar. 59, I am of the humble view that suit of the appellants/plaintiffs was/is also barred under section 42 of Specific Relief Act. Reliance can also be placed on PLD 2003 (Karachi) page

466. It is pertinent to mention here that law is dynamic and it always keeps on developing, the courts can even reject the plaint under inherent power, if the matter does not come within scope of Order VII Rule 11 C.P.C, the provision is not exhaustive and the court can reject the plaint where it finds that suit is impliedly barred by law, such type of litigation be discouraged and buried at its initial stages. In this regard reference can be placed on 2001 MLD Karachi 1150. Moreover the law is developed on the basis of dictum laid down by Honourable Supreme Court "That besides averments made in the plaint and other material available on record, which on its strength legally sufficient to completely refute the claim of plaintiff can also be looked into for the purpose of rejection of plaint. "Reliance can be placed on 2003 SCMR 338."

10. In view of such discussion, I find no prima facie case warranting the admission of the revision application to regular hearing. The revision application is dismissed in limine, accordingly along with listed applications. ZC/I-25/Sindh Revision dismissed.