1998 PLP 382 (CLC)

‑‑‑‑O.VII, R.11 & S. 151‑‑‑Rejection of plaint‑‑‑Court was duty bound to bury incompetent plaint in its infancy‑‑‑Court could exercise such powers by recourse to provisions of S. 151, C.P.C. Irshad Ahmed v. Muhammad Jamil PLD 1994 Lah. 583 rel. Jan Muhammad v. Muhammad Munsif and 2 others PLD 1986 SC (A.J.&K) 98 and Ch. Muhammad Bashir v. Divisional Canal Officer and others 1994 CLC 2302 ref. Nazir Ahmed Awan for Applicant. Ghulam Muhammad Khan Durrani for Respondent No.4 Date of hearing 1st September, 1997 This revision application was filed on 4‑12‑1996 against the judgment delivered in Civil Appeal No.7 of 1994 by 1st Additional District Judge Shikarpur dismissing Civil Appeal on 9th October, 1996, Concurring in the order of the trial Court who dismissed application under Order XXXIX, rules 1 and 2, C.P.C. and rejected the plaint of the plaintiff on the ground that the plaintiff has not approached Revenue Authorities and has not exhausted his remedies before the Revenue Authorities. The facts of the case as disclosed in the plaint are that the applicant was granted 32 acres of land in Deh Machi Taluka and District Shikarpur. Admittedly plaintiff did not deposit instalment in time which was apparently one of the conditions of the grant of land. Resulting in cancellation of grant. That cancellation of grant was challenged by him in Civil Suit No.7 of 1994 in the Court of 1st Senior Civil Judge Shikarpur. The learned trial Court came to the conclusion that not only that the applicant is disentitled to the interim relief, at the same time rejected the plaint inter alia, or the grounds that the suit was barred under section 11 of Sindh Revenue Jurisdiction Act, 1876 to which it has provided that the suit can be filed in Civil Court against the orders passed by the Revenue Courts after exhausting all the departmental proceedings i.e. appeal before the appellate forum and revision if any under the relevant law. This order was affirmed by the appellate Court who also came to the same conclusion, Admittedly the applicant has not filed the departmental appeal. He has not exhausted departmental remedies and straight away filed the suit. Although technically the suit could not be rejected as there was no such averment in plaint itself which may barred the suit under any law as while rejecting the plaint under Order VII, Rule 11, C.P.C., the Court only looks to A the plaint itself. However, nowhere in the plaint it has been mentioned that the applicant has filed an. appeal against the cancellation of grant of land before the appropriate forum although it is admitted by the learned counsel that such forum is available under the law. In such eventualities faced with this situation learned counsel relied on the case of Mian Muhammad Latif v. Province of West Pakistan through the Deputy Commissioner, Khairpur and another PLD 1970 SC 180 in which their Lordships of the Supreme Court have ruled that in the special circumstances the suit without availing of the departmental remedy would be maintainable. Learned counsel was called upon to point out those special circumstances or the point of law which would make the suit maintainable. His contention was that the suit was maintainable because firstly the plaintiff has stated that he is ready to pay the entire amount of the suit land instead of instalment. However, I have gone through the entire plaint, no such averment is made in the plaint itself. Secondly his contention was that the suit was maintainable because it was given under special quota that could not be undone. He has only filed Ijazatnama. In such eventuality the learned counsel for the applicant sought time. I declined the time, because this revision is pending since December 1996. Even otherwise from the copy of the plaint not find that such order is placed on the record of the trial Court. Any document which was not placed before the trial Court, and was not considered by the trial Court or the first appellate Court, would not be considered by this Court at the revisional proceedings stage. Learned counsel then relied upon two cases namely Jan Muhammad v. Muhammad Munsif and 2 others PLD 1986 SC (A.J.&K) 98 at pages 100 and 101 para.5 and Ch. Muhammad Bashir v. Divisional Canal Officer and others 1994 CLC 2302. There is no dispute that the proposal of law laid down in those authorities. However, it is the duty of the Court to bury an incompetent plaint in its infancy. The Court can exercise such powers by recourse to the provisions of section 151, C.P.C. Such is the view of the Lahore High Court in the case of Irshad Ahmed v. Muhammad Jamil PLD 1994 Lah. 583 and I am 'in agreement with such view. Since the plaint was incompetent, the applicant has not availed the relief available to him before the Revenue Authorities and he rushed to the Court in hot haste, therefore, on the face of record the plaint was not maintainable in law and was rightly rejected by the Court. No exceptions could be taken to such orders passed by the forums below. Consequently this revision application is dismissed in limine. A.A./S‑96/K??????????????????????????????????????????????????????????????????????????? ??????????? Revision dismissed.