P L D 2016 Peshawar 18 (PLP)

QALANDAR ALI KHAN, J.

Through the instant writ petition, the petitioners have impugned order of learned Additional District Judge-III, Nowshera dated 15-6-2009, whereby, on acceptance of the revision petition, plaint in the suit of the petitioners was rejected under Order VII, Rule 11, C.P.C.

2. The facts, essential for disposal of this writ petition, are that the petitioners had lodged a suit for declaration on the basis of inheritance from their deceased mother, Saira Begum, daughter of their predecessor, Abdullah Jan, and had challenged gift mutation attested by the said Abdullah Jan in favour of his son Hafizullah in the year 1946 and further transfer of the land measuring 57 Kanal 5 Marlas, situated in Banda Sheikh Ismail, through subsequent mutations on the basis of the said gift mutation No.101 attested on 21-6-1946.

3. The suit was contested by respondents Nos.1 to 8 on several grounds, including the grounds of limitation, partition of the suit land and improvements worth lacs of rupees by the respondents. The respondents also filed application under Order VII, Rule 11, C.P.C. along with their written statement. The application was resisted by the petitioners, and was dismissed by the learned Civil Judge-II, Nowshera vide order dated 25-10-2008. The appeal against the order of the trial Court was accepted by the learned Additional District Judge-II, Nowshera and the case was remanded to the trial Court for decision afresh vide judgment/order dated 26-2-2009. The learned Civil Judge-II, Nowshera once again dismissed application under Order VII, Rule 11, C.P.C. vide order dated 26-3-2009, which was assailed in C.R. No.3, but this time the revision petition succeeded and plaint was rejected under Order VII, Rule 11, C.P.C. by the learned Additional District Judge-III, Nowshera, vide the impugned judgment/order dated 15-6-2009; hence this writ petition, inter alia, on the grounds that only statement made in the plaint should have been taken into consideration instead of partition proceedings or other facts not forming part of the plaint, and further that limitation was a mixed question of law and facts, as starting point of limitation was date of knowledge of the petitioners, who were pardanasheen ladies.

4. Arguments of Mr. Abdul Sattar Khan advocate, learned counsel for the petitioners, and Mr. Zia-ur-Rehman, advocate, learned counsel for the respondents heard, and record perused with their assistance.

5. In order to properly appreciate the issues/questions raised in the writ petition, it would be worthwhile to reproduce the provisions of Order VII, Rule 11, C.P.C. "

11. Rejection of plaint.

The plaint shall be rejected in the following cases: (a) Where it does not disclose a cause of action; (b) Where the relief claimed is under-valued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so; (c) Where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so; (d) Where the suit appears from the statement in the plaint to be barred by any law." (Emphasis provided)

6. There can be no cavil with the proposition that plaint alone is to be taken into consideration for an order under Order VII, Rule 11, C.P.C. Admittedly, in the plaint of the petitioners, they basically challenged gift mutation No.101 attested on 21-6-1946 and all subsequent mutations attested on the basis of that mutation, in the year 2007 i.e. after more than 60 years. Moreover, the petitioners claimed inheritance from their deceased mother, Saira Begum, daughter of their predecessor and original owner, Abdullah Jan, but their deceased mother never challenged the gift mutation by her father in favour of her brother, though surviving for more than four decades after attestation of the gift mutation. One is, therefore, at a loss to understand that what else was required to discern from the plaint to arrive at the conclusion that the plaint was barred by the law of limitation, calling for its rejection under Order VII, Rule 11, C.P.C.

7. The petitioners had also lodged a suit of the same nature i.e. declaration, on the basis of inheritance, against the respondents in respect of land situated in another village Saroghari but plaint in the suit was rejected by the learned Civil Judge-XXII, Peshawar, vide order dated 22-11-2010 and appeal/civil revision against the order of the trial court was also dismissed on the same ground of limitation by the learned Additional District Judge-VII, Peshawar, vide judgment/order dated 27-5-2011, which attained finality, as no appeal/revision/writ petition appears to have been filed against the said judgment/order of the learned appellate Court.

8. In light of the aforesaid facts, the impugned order of the learned Additional District Judge-III, Nowshera dated 15-6-2009, does not appear to be suffering from illegality or irregularity, calling for interference by this Court in its constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. Consequently, the writ petition is dismissed. Announced SL/238/P Petition dismissed.