P L D 2021 Balochistan 5 (PLP)

ABDUL HAMEED BALOCH, J.

Through this judgment I intend to dispose of above titled revision petition filed by the petitioners against the order and decree (impugned order and decree) dated 23rd May, 2013 passed by Civil Judge-II, Quetta (trial court), whereby the suit of the petitioners/plaintiffs was dismissed under Order VII, Rule 11, Civil Procedure Code (C.P.C.) and against the order and decree (impugned order and decree) dated 19th March, 2015 passed by learned Additional District Judge-VI, Quetta (appellate court), whereby the appeal filed by the petitioners/plaintiffs was also dismissed.

2. Concise facts of the case are that the petitioners/ plaintiffs filed a suit for declaration and permanent injunction against the respondents/ defendants in respect of the land measuring 5 acres 0 rod 0 pole situated at Mohal Pechi Karez Mouza Zindra Tehsil and District Ziarat, with the following prayer: "a. Declaring that the plaintiffs are entitled to allotment of the land measuring 5 acres 0 rod 0 pole whereupon they have raised construction and are residing therein. b. Declaring that the defendants were bound to pass approximately orders under the Land Lease Policy, 1988. c. Declaring that the orders passed by the Additional Deputy Commissioner (Revenue) are without lawful authority or jurisdiction. d. Restraining the defendants permanently from interfering in the land in dispute and not to create hurdles to the plaintiffs. e. Any other relief may deem fit in the circumstances of the case may also be awarded.

3. The defendants Nos. 1 to 3 contested the suit on legal as well as factual grounds by filing written statement. It was contention of the defendants Nos. 1 to 3 that the suit land belongs to the State and the petitioners/plaintiffs are trying to take illegal possession of the state land, as such prayed for dismissal of the suit.

4. The defendants Nos. 4A to 28 filed their separate written statement and denied the contents of the plaint by stating that the petitioners/ plaintiffs filed an application for allotment of the land in question under Land Lease Policy which was not accepted vide order dated 13th May, 2011, against which the petitioners/plaintiffs filed appeal before Commissioner Ziarat at Sibi, as such suit is not maintainable and liable to be rejected under Order VII, Rule 11, C.P.C.

5. The respondents/defendants Nos. 29 to 54 submitted their written statement by denying the contents of the plaint and prayed for dismissal of the plaint.

6. After receiving pleadings of the parties the learned trial court framed following issues on 12th October, 2011: "i. Whether the plaintiffs are entitled for the allotment of land in question? ii. Whether the plaintiffs are entitled to the relief claimed for? iii. Relief?

7. After framing of issues the petitioners/plaintiffs produced four witnesses, whereafter, the respondents/ defendants Nos. 1 to 3 filed an application under Order VII, Rule 11, C.P.C., which was contested by the petitioners/plaintiffs by filing rejoinder. The trial court heard after hearing arguments on the application under Order VII, Rule 11, C.P.C. allowed the application and dismissed the suit of the petitioners/ plaintiffs vide order dated 23rd May, 2013. The relevant portion of the impugned order is reproduced as under: "

5. Thus, in view of above discussion, I have arrived to the conclusion that the objections raised by applicants/defendants Nos. 1, 2 and 3 are valid and in consequence whereof, suit of plaintiff is dismissed under Order VII, Rule 11 of C.P.C. in the interest of justice. Decree sheet be prepared as no order to cost and case file after completion be consigned to record"

8. Being aggrieved of the impugned order and decree the petitioners/plaintiffs filed appeal before appellate court, who vide impugned order and decree dated 19th March, 2015 dismissed the same and upheld the impugned order and decree of the trial court.

9. Learned counsel for the petitioners/plaintiffs contended that the impugned orders and decrees of both the courts below are illegal and without jurisdiction. The civil matter cannot be decided on technicalities. When the court framed issues then the court has to decide the matter on the basis of evidence of the parties. It is an admitted principle that the matter should be decided on merit. The learned counsel prayed for remand of the case to the trial court for recording evidence and decision of the case on merit.

10. The learned counsel for the private respondents and learned Assistant Advocate General vehemently opposed the contention of the petitioners/ plaintiffs and stated that the petitioners/ plaintiffs had filed application for allotment of land under Land Lease Policy before Additional Commissioner (Revenue), which was rejected, against which the petitioners/plaintiffs filed appeal before Commissioner Sibi Division which is pending. The petitioners/ plaintiffs cannot avail two remedies simultaneously. The impugned orders of both the courts below are according to law. Reliance was made to the case of Muhammad Siddique (deceased) through legal heirs v. Mst. Noor Bibi (deceased) through legal heirs) 2020 SCMR 483.

11. I have considered the arguments advanced by the learned counsel for the parties, Assistant Advocate General and perused the record with their assistance. The record transpires that the petitioners/ plaintiffs filed an application before the authority for allotment of 05 acres land under Land Lease Policy 1988. The Executive District Revenue Officer forwarded the request to the concerned quarter, whereafter the petitioners/plaintiffs filed civil suit for declaration and permanent injunction.

12. The petitioners/plaintiffs admitted that they filed application for allotment of 05 acres of land to Additional Commissioner (Revenue). The petitioners have annexed the order of the Additional Commissioner Revenue in regard of fate of their application. The petitioners were bound to disclose the fate of their application whether accepted or rejected. The petitioners have not mentioned in the plaint whether they have filed appeal before Commissioner Sibi Division or not. When a party knock the door for justice should come with clean hands, narrate all the facts which had the knowledge.

13. The petitioners filed application for allotment of land to concerned authority and simultaneously filed suit for declaration and permanent injunction. The parties cannot approach different forums simultaneously. When the revenue hierarchy seized the matter on the application of the petitioners/plaintiffs then the party should pursue the matter. Reliance is placed on the case of Muhammad Siddique (deceased) through legal heirs v. Mst. Noor Bibi (deceased) through legal heirs) 2020 SCMR 483, in which it was held as under: "

7. Hence, we are fortified in our view that when an order first to review the mutation or the order sanctioning of mutation was challenged by the Plaintiffs/Petitioners, they were required to avail the remedy available to them under Chapter XIII of the West Pakistan Land Revenue Act, 1967. After having availed said remedy, if the Plaintiffs/Petitioners were dissatisfied with the result and could show that the said hierarchy had failed to exercise jurisdiction vested in them by law or had exercised the jurisdiction illegally, only then a Suit before the Civil Court would have been competent. The Petitioners have admittedly not availed the remedy available to them to challenge the orders passed by the Revenue Officer before the revenue hierarchy. Instead, the Plaintiffs/Petitioners opted to file the Suit before the Civil Court, which was not competent in the light of judgments discussed herein above."

14. Since the trial court dismissed the suit of the plaintiff under Order VII, Rule 11, C.P.C., which was upheld by the appellate court, therefore the question arose whether the suit can be dismissed, without recording the evidence or there is a difference between the dismissal of suit and rejection of plaint? Order VII, Rule 11, C.P.C. finds mentioned the words "the rejection of plaint", meaning thereby if the ingredients in Order VII, Rule 11, C.P.C. are available in the plaint, the court has the jurisdiction and powers to reject the plaint. The dismissal of suit connotes that it is a final determination of controversy between the parties meaning thereby the learned trial court can dismiss the suit only after holding inquiry and recording the evidence. The rejection of plaint provides or opens the door for the petitioners for filing a fresh suit but in a case of dismissal of suit no fresh suit can be filed and only statutory remedy is available against dismissal order. In view of above, the impugned orders dated 23rd May, 2013 and 19th March, 2015, passed by the courts below will be deemed to be passed under Order VII, Rule 11, C.P.C. and the plaint will be deemed to be rejected. With the above modification in the impugned orders of the courts below, the petition is dismissed with no orders as to costs. MH/190/Bal. Petition dismissed.