2025 PLP 1247 (CLC)

S M ATTIQUE SHAH, J.

Petitioners, through instant petition, have challenged the judgment and; order dated 28.06.2022 of the learned appeal Court, whereby on acceptance of the appeal of the respondent, the order of the learned Trial Court dated 31.01.2022 qua rejection of plaint under Order-VII Rule 11, C.P.C., has been set-aside and; consequently, the matter has been remanded to the learned Trial Court for its decision on merits.

2. Brief facts of the case are that the respondent filed a suit for declaration coupled with perpetual and mandatory injunction against the petitioners regarding the suit property which was contested by the latter by submitting written statement. Alongside they also applied for the rejection of plaint under Order VII Rule 11, C.P.C., which was contested by the respondent by filing written reply. The learned Trial Court after hearing arguments of both the sides, accepted the said application and; in turn rejected the plaint vide order dated 31.01.2022. Discontented therefrom, the respondent preferred an appeal, which was allowed by the learned appeal Court and remanded the matter to the trial court for its decision on merits after recording pro and; contra evidence of the parties, vide impugned judgment / order dated 28.06.2022. Hence the instant revision petition.

3. Learned counsel representing the petitioners vehemently argued that the impugned findings of the learned appeal Court are illegal; being against the material available on record of the case; that learned appeal Court had committed gross illegality while reversing the well-reasoned findings of the learned trial Court which were the result of proper appreciation of the material available on record of the case. Further argued that the suit of the respondent was not maintainable in its present form as no consequential relief of possession was sought in terms of Section 42 of the Special Relief Act, 1877 which was mandatory and as such the plaint was rightly rejected by the learned Trial Court in terms of Order VII Rule 11, C.P.C. He lastly contended that the disputed property is Shamilat-e-Deh and the respondent was required to implead the entire propriety body of the village in the suit, however, he failed to do so and thus, on this score alone his suit was liable to dismissal for want of mis-joinder and non-joinder of the necessary parties.

4. Conversely, learned counsel representing the respondent argued that the impugned findings are the result of proper appreciation of material available on record of the case; that the plaint cannot be rejected merely for non-seeking of consequential relief in terms of provisions of section 42 of the Specific Relief Act, 1877, rather, such disability can be rectified through amendment in the suit. Further argued that a suit cannot be dismissed for non-joinder and; mis-joinder of the necessary parties, as they can be impleaded, at any stage of the proceedings when the circumstances so demand and when the desired relief cannot be granted to the plaintiff without their impleadment, as such, the impugned findings do not require any interference of this Court through this revision petition filed in terms of section 115, C.P.C.

5. Heard. Record perused.

6. It was the stance of the respondent before the learned trial Court that he is owner in possession of the disputed property measuring 2-1/2 Kanal, out of total 27 Kanal, in suit Khasra No. 510 in Mouza Khair Abad, Nowshera while the petitioners have nothing to do with the same, as such, they be restrained from interference in his peaceful possession.

7. Record reflects that the suit property is comprising of Khasra No. 510 in Khata Nos. 264/390 to 354 measuring 11509 Kanal, which is the common village property/Shamilat-e-Deh and has not as yet been officially partitioned, as such, the same is common proprietorship of the entire propriety body of the village comprising of 32-1/2 Gharana Jaat.

8. First, this Court would dilate upon the question of maintainability of suit for declaration etc filed in terms of section 42 of the Specific Relief Act, 1877, which postulates that: "Any person entitled to any legal character, or to right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief: Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so."

9. The ibid provision of law is composed of two essential ingredients, the first ingredient is title of the plaintiff to legal character or property. The second ingredient is that there must be an infringement or threatened invasion of title to such legal character or property of the plaintiff. The purpose of the ibid provision is to confer the Civil Court with jurisdiction to prevent future litigation and to remove existing sources of controversy which have threatened the plaintiff's right to legal character or property. It is long settled that a co-sharer in exclusive possession of a certain portion of joint land can retain possession of the same to the extent of his shares, so long as there is no official partition between the co-sharers by metes and; bounds. Muhammad Muzaffar Khan v. Muhammad Yousuf Khan1 and Rabnawaz and others v. Akbar Ali and others

2. Subsequently, the said principle was also applied in the matters pertaining to Shamilat Dah . Atta Muhammad v. Sahibzada Manzoor Ahmad and others3 Hence, it is settled that a suit filed by a owner under the provisions of section 42 read with section 54 of the Specific Relief Act, 1877 is maintainable, who is in possession of a piece of Shamilat land, which has not yet been partitioned and; there is a denial to his title and threat to his possession by the other members of the propriety body.

10. Similarly, plea of the petitioners qua non-impleadment of propriety body of the village also carries little weight, given the fact that the plaint cannot be rejected for want of impleadment of entire proprietary body of the village because the necessary and; proper party can be impleaded by the Court, at any stage, of the proceedings in order to pass an effective decree in terms of the provisions of Order I Rule 10, C.P.C. It is well settled that no suit shall be defeated on account of mis-joinder or non-joinder of the necessary parties, rather, the Courts are mandated to adjudicate upon the matter in dispute, taking into account the specific facts and circumstances of the case, as well as the rights and interests of the parties directly involved therein, as postulated by Order-I Rule 9 of C.P.C.

11. Now, moving towards the contention of the petitioners that the suit of the respondent was not maintainable in its form as he has not sought consequential relief, which is mandatory in declaratory suits in terms of section 42 of the ibid Act. The very purpose and object of seeking consequential relief in a suit for declaration is to prevent future litigation and to remove existing sources of controversy. Muhammad Ramzan v. Nasir Hussain and another

4. Though under the provision of Order VII Rule 7, C.P.C., relief is to be stated specifically in the plaint, however, omission thereof would not absolve the Courts from their obligation to grant such relief when justice so demands in the peculiar facts and; circumstances of a case. It is settled that in such condition, whole contents of the plaint must be looked into, so that the substance rather than the form should be examined to do complete justice. Samar Gul v. Central Government and others5 The mandate of Order VI Rule 17, C.P.C. is that the Court may, at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made in such a manner to extend benefits to the contesting parties while determining the real questions in controversy between them. Meaning thereby that a plaint cannot be rejected merely for want of non-seeking therein a consequential relief, despite being mandatory in such like suits, rather, the Court can direct the plaintiff to amend his plaint by including consequential relief therein in order to secure ends of justice. Mir Mazar v. Azim6 Even otherwise, a suit cannot be dismissed on account of any defect in its form and the Court is competent to direct amendment in plaint for extending relief to which the party is otherwise entitled on merits. Samar Gul v. Central Governments and others7 and; Ahmad Din v. Muhammad Shafi

8. In the case of Ghulam Bibi9, the august apex Court, allowed amendments in the heading of suit from specific performance etc. into declaration etc. on the ground that mere such amendments would not change the cause of action. Even, Courts can exercise Suo Moto power to direct suitable amendment in the plaint in terms of Order VI Rule 17, C.P.C. without filing an application by a party in order to do complete justice when the circumstances, so demand. Javaid Iqbal v. Abdul Aziz and another

10. Jamal Din alias Muhammad Jamal v. Mst Mehmooda Begum

11. Indeed, amendments, which are necessary for the just decision of the case can be allowed, at any stage, of the proceedings in terms of Order VI Rule 17, C.P.C., if it does not change the cause of action, because when the cause of action is changed, the suit would become different from the one, initially filed. Genuine amendments in the pleadings which do not change the cause of action if denied, would certainly create difficulties for the plaintiff to get the desired relief for which he is otherwise entitled under the law, but due to defect in the form of suit, he is facing difficulties in getting such relief. It reflects from the above discussion that the Courts should exercise their powers liberally while allowing the amendments in the cases where such amendments are necessary, to secure the ends of justice. In view thereof, both the worthy Courts below were required to have directed the respondent to amend the plaint while including the relief of possession therein, in the larger interest of justice, in terms of Order VI Rule 17, C.P.C., however, they failed to do so and; thereby, erred in law. Thus, the impugned findings of the worthy Appeal Court require slight modification to such extent in the peculiar facts and; circumstances of the case.

12. Consequently, the instant civil revision is partially allowed, the impugned findings of the learned appeal Court are modified to the extent that the respondent is allowed to file an amended plaint, seeking therein, partition of the entire Shamilat-e-Deh by impleading the entire propriety body of the village being necessary and; proper party and; also a consequential relief qua possession in the event of failure to prove the same. Parties are directed to appear before the learned trial court, as and; when summoned in the matter. SA/148/P Order accordingly. 1 PLD 1959 SC 9. 2 1989 SCMR 93. 3 1992 SCMR 138. 4 PLD 1959 SC 147. 5 PLD 1986 SC 35. 6 PLD 1993 SC 332. 7 PLD 1986 SC 35. 8 PLD 1971 SC 762. 9 PLD 1985 SC 345. 10 PLD 2006 SC 66. 11 2002 CLC 361.