1997 PLP 21 (MLD)

Through this Civil Revision, the petitioner has challenged the judgment and decree dated 3-10-1994 passed by Addl. District Judge whereby he dismissed petitioner's appeal against the judgment and decree dated 6-12-1993 passed by Ch. Jamshed Hussain, Civil Judge Ist Class, Sahiwal through which petitioner's suit stood dismissed.

2. The fact giving rise to the instant petition briefly stated are that petitioner filed a suit for declaration against the respondents-defendants to the effect that petitioner is owner in possession of the suit land through purchase and prayed that respondents be restrained from denying the title of the petitioner plaintiff in respect of the said land. The learned trial Court dismissed the suit on the ground that in the written statement filed by the respondent it was admitted that Mutation No.757 dated 30-5-1993 had already been attested in favour of petitioner-plaintiff and therefore the relief being claimed having already been given to petitioner-plaintiff, the plaint did not disclose any cause of action. The learned Appellate Court affirmed the afore-referred finding of the learned trial Court on the ground that as the relief had already been allowed to petitioner- plaintiff and the respondent-defendant having stated in the written statement that he never disputed title and possession of the petitioner-plaintiff, the plaint did not disclose any cause of action to warrant relief already granted through the civil suit.

3. Learned counsel for the petitioner has assailed the concurrent finding on the ground that the dismissal of the suit is likely to adversely affect petitioner's title qua the suit land arid that worst the Court could have rejected plaint under Order 7, Rule

11. C.P.C. but dismissal of the same, according to him, was not tenable in law.

4. Petitioner-plaintiff's title and possession of the suit land is admittedly not being denied by respondent-defendant No.2. That being so, the discretionary relief under section 42 of the Specific Relief Act cannot be claimed as of right. The learned Courts below had rightly held that the plaint did not disclose any cause of action and the suit merited dismissal. This view is in line with the dictum laid down by the Hon'ble Supreme Court in Kaloo Khan v. The State 1972 SCMR 602 wherein at page 603 it was held as under:

"as the petitioner has been ousted mainly on the ground that he had no cause of action because his title was not being denied and his possession was not being disturbed. Such being the case, the Courts below were justified in denying the discretionary relief of declaration under section 42 of the Specific Relief Act." So far as the prayer that the plaint should have been rejected under Order 7, Rule 11, C.P.C. is concerned, I am afraid, the same is not tenable as this provision of law can be pressed into service only when a bare reading of the plaint reflects lack of cause of action or the relief claimed is undervalued or where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped or where the suit appears from the statement in the plaint to be barred by any law. In the instant case, the lack of cause of action came to light after submission of written statement by respondent defendant No.2.

5. For what has been discussed above, there is no illegality, irregularity, misreading or non-reading of evidence to warrant interference in the two concurrent findings of the learned Courts below. This petition, has no merit which is dismissed in limine. H.B.T./K-2/L Petition dismissed.