1994 PLP 1978 (MLD)

This revision petition under section 115 of Civil P.C. by the defendants in the civil suit was against an order of the trial Court passed on 27-1-1992, by which it refused to summarily reject the plaint, under Order VII, Rule 11 of Civil P.C. Relevant facts of the case are: One Bundu owned land in State of Kapoorthala in undivided India. On the eve of partition, he migrated to Pakistan and settled in Chak No.35/R.B., Tehsil and District Sheikhupura. He submitted his claim for verification in respect of the land abandoned by him in India. On the basis of his verified claim, he was allotted evacuee land in the above Chak. Bundu died. By Mutation No.67, attested on 14-3-1957, his land was mutated in favour of his surviving heirs. He left three daughters, a son and a widow. Each was allocated his/her due share in the estate of Bundu. Mst. Sharifan Bibi claimed 7/48th share in it. By Mutation No.144, attested on 25-9-1970, one Muhammad Hussain acting as general attorney of Mst. Sharifan Bibi sold her land in favour of Ghulam Muhammad, Ghulam Hussain and Allah Ditta. On coming to know of it, Mst. Sharifan Bibi filed a suit for declaration for annulment of the Sale Mutation No.144 sanctioned on 25-9-1970. She denied power of attorney by her to Muhammad Hussain and the sale of her land by him to aforestated three persons. In view of certain formal defects in the suit, Mst. Sharifan Bibi applied for its withdrawal with permission for its renting on the existing cause of action. The trial Court declined the permission asked for on 10-7-1991. Eventually, the suit was withdrawn on 30-7-1991. But before withdrawal of the suit, the present suit on the subject-matter had already been instituted by mg. Sharifan Bibi on 25-5-1991. The defendants submitted an application under Order VU, Rule 11, Civil P.C. for a summary rejection of the plaint on the ground that it was barred by law. Plaintiff resisted the application. The trial Court dismissed the application on 27-1-1992. After recapitulating the facts of the case and contentions of the parties, in para.4 of the order, trial Judge observed, "I have considered the arguments of learned counsel for the parties. I have also carefully perused the plaint. The reasons as mentioned in Order 7, Rule 11, C.P.C. are not applicable in this suit and the suit does not fall in any of the four categories as mentioned in the abovesaid order. This suit was filed on 25-5-1991 and the earlier suit was withdrawn from the Court of Sheikh Karamat All, Civil Judge on 30-7-1991. The learned counsel for the plaintiff respondent has stated in his statement before the said learned Civil Judge that he has already filed a fresh suit and the same be dismissed as withdrawn. In case during the pendency of a suit, another suit is filed, the fresh suit cannot be rejected under Order 7, Rule 11, C.P.C., however, the effect of previous suit will be considered at the time of fmal adjudication. I do not find any reason to reject the plaint and the application is hereby dismissed with cost. The defendant shall now submit their written statement on 5-2-1992". This order was sought to be revised in the District Court at the instance of the defendants. On 19-12-1993, learned Additional District Judge returned the petition for its presentation to a proper forum. Thereupon, the petitioners rented civil revision in this Court. Learned counsel relied on the case of Dr. Akhtar Hussain v. S. M. Hanif and 2 others 1990 MLD 1652 (Karachi) to urge that fresh suit was barred under Order XXIII, Rule 1(3) of Civil P.C. Relevant observations of the learned Judge were available at page 1655 of the report. These are, "It will not be out of place to mention that Suit No.1289 of 1987 was not withdrawn without obtaining any permission for filing a fresh suit, as required by Order XXIII, Rule 1(2), C.P.C. but was also withdrawn after the filing of the present Suit No.345 of 1988. Hence, the present suit is barred under sub-rule (3) of Rule 1 of Order XXIII, C.P.C.". There were two judgments of this Court in Ram Lal v. Upendra Datt and another AIR 1928 Lah. 710, Mangi Lal and another v. Radha Mohan and another AIR 1930 Lah. 599(2), which hold that in such circumstances Order XXIII, Rule 1(3) of Civil P.C. was inapplicable. Former judgment was by a learned Single Judge of this Court and the latter by a Division Bench of which the learned Judge who had decided the earlier case was also a member of the Bench. Ruling in Mangi Lal's case is AIR 1930 Lah. 599(2) was considered in Amir Din Shahab Din v. Shiv Dev sindh Jhanda Singh by a Division Bench in AIR 1947 Lah. 102 and it was held that the institution of second suit by the plaintiff on discovering that his first suit was likely to fail on merits was a clear attempt of an abuse of the process of the Court and, therefore, was barred by law. Therefore, whether the second suit did constitute an abuse of process of Court was a question appropriately for decision at regular trial of the suit by the trial Court. Section 12(1) of Civil EC. also required consideration in this behalf. From the order of the learned trial Judge, it was evident that he had kept the point at issue open for consideration at the time of final adjudication of the suit. He had merely dismissed the petition for summary rejection of the plaint on the ground that clauses (a) to (d) of Rule 11 of Order VII of Civil P.C. did not apply at the present stage for guillotining the trial of the suit. Even written statement was not yet filed. I agree with the view of the trial Court. Ordinarily, averments in the plaint shall govern application of Order VII, Rule 11, Civil P.C. for ordering its rejection. Read as a whole, the plaint did not make out a proper case for its summary rejection under Order VII, Rule 11, Civil P.C. without its trial on merits. Upon this view, civil revision has little merit in it and is, consequently, dismissed in lirnine. AA./G-229/L?????????????????????????????????????????????????????????????????????????????????????? Revision dismissed.