Declaratory Suit

There was no requirement of framing of issues and recording of evidence as the plaint was liable to be rejected under O. VII, R. 11, C.P.C.

Lower Appellate Court properly exercised revisional jurisdiction vested in it by law and had rightly rejected the plaint

High Court, in exercise of Constitutional jurisdiction, declined to interfere in the judgment passed by Lower Appellate Court as no illegality or irregularity could be attributed to the same

Petition was dismissed in circumstances.

Suit for declaration was not competent.

Plaintiff, in the present case, was allowed admission as a student in the University for study, who at the time of his admission provided detail marks certificate issued by Intermediate and Secondary Education Board, which, was later on, after verification, was found bogus

University administration cancelled the admission of petitioner/student on account of bogus certificate

Suit filed by the plaintiff/student was decreed in his favour, but the appellate Court accepted the appeal of respondent/University by setting aside the judgment and decree passed by trial Court

Contention of the plaintiff/student was that he being a regular student has successfully completed three semesters and during final semester, admission was cancelled illegally

Validity

Admission of the plaintiff/student was based on the detail marks certificate issued by the Board of Intermediate and Secondary Education, which being provisional was liable to be recalled at any time, in case of fake and fictitious Certificate

Plaintiff/petitioner had committed fraud by getting admission through a bogus detail marks certificate, so neither any law nor in equity, relief could be granted to such errant, whose hands were sullied with improper conduct and against whom a finding of privy to and being beneficiary of fraud had not only been recorded by the Institution where he was studying but also affirmed by the Court of law

Any leniency in such like cases, would amount to encouragement of foul play and unfair means

Any student who got admission on fake certificate, shall destroy the fabric of the society and it was desirable that such students be weeded out from the education field, so as to create confidence in the deserving genuine students that the education imparted was to bring out honest citizen

Revision petition was dismissed.

Contention of the petitioner was that no one contested the suit and ex-parte evidence was adduced by the petitioner, therefore in absence of rebuttal, trial court was bound to pass the decree as prayed for

Validity

Petitioner had mainly relied upon primary school certificate but neither the record keeper of the school nor any responsible officer of the school was produced to verify the contention of the petitioner

School was also not made party in the plaint

Old identity card of the petitioner showing her date of birth was based on her affidavit duly attested by an authorized officer

Petitioner had not made any effort for long ten years to apply for the correction of identity card

Period of limitation to challenge the wrong entry through declaration was provided as six years, whereas the present suit was filed after ten years of the issuance of Card, therefore the same was hopelessly time barred

Revision petition was dismissed.

Maintainable.

Plaintiffs in their suit had challenged mutation whereby their shares in the inheritance of their predecessor were reduced

Suit was dismissed by the Trial Court, but was decreed by the Appellate Court

Decree passed by the Appellate Court in favour of the plaintiffs remained intact uptil the Supreme Court

District Officer on application of decree holder granted permission for correction of the revenue record in accordance with said decree

Judgment-debtors assailed said order of District Officer in appeal, which appeal was dismissed by Executive District Officer and dismissal order remained intact up to Board of Revenue

Contention of the judgment-debtors throughout was that the decree-holders, could not get the declaratory decree implemented by the Revenue Authorities; and that Revenue Authorities had no jurisdiction to implement the judgment and decree of the civil court, passed in declaratory suit

Validity

Section 45 of West Pakistan Land Revenue Act, 1967, had provided for the making of such entries in record of rights or in a periodical record which were supported by a decree or order

Revenue Officers were bound to give effect to the decree of the civil court and Revenue Staff could not go beyond the decree

Revenue Officer was under obligation to correct and bring up to date revenue record in conformity with the binding adjudications of civil courts, who alone were arbiters of civil rights of the parties

Revenue Officer must accept decree of civil court and act upon it to give effect to it in revenue record

Impugned orders did not call for any interference, in circumstances.

Lastly notices were given to the plaintiffs under O.XVII, R.3, C.P.C. asking then to produce their evidence, but the plaintiffs failed to comply with the order of the Trial Court and did not produce evidence

Trial Court dismissed suit exercising the powers vested in it under O.XVII, R.3, C.P.C.

Appeal filed by the plaintiffs against orders of the Trial Court having also been dismissed, plaintiffs had impugned both the judgments and decrees of the courts below through revision petition

Plaintiffs had contended that even if Trial Court wished to proceed under O.XVII, R.3, C.P.C., it was its duty to decide the lis on merits by considering the material available on record and after hearing arguments of the parties

Validity

No doubt under O.XVII, R.3, C.P.C., while exercising the powers, the Trial Court must consider the material available on record, but in the present case the plaintiffs had challenged the revenue record in respect of the disputed Khasra numbers, wherein they were recorded owners and the defendants as possessors

No other evidence was available on the record which could be considered by the Trial Court for passing order for correcting the revenue record

Trial Court, in circumstances, had no other choice except to dismiss the suit, especially when the plaintiffs were given several opportunities to produce evidence

Maintainability of the revision filed by the plaintiffs was questioned on the ground that the plaintiffs had not annexed the decree-sheets with the judgments of the courts below, without which appeal and revision could not be entertained

Validity

No doubt it was mandatory under O. XLI, R.1, C.P. C. to annex decree, but when appeal or revision was filed without the decree-sheet and the office at the time of filing of appeal or revision did not notice that mistake, then the plaintiffs should not be penalized

Judgments and decrees of the Trial Court as well as of the Appellate Court, were perfectly in accordance with law and facts

Both the courts having not acted in exercise of its jurisdiction illegally or with material irregularity, no interference was needed by the High Court in exercising the extraordinary revisional jurisdiction:

Defendants appeared before the court and submitted their written statement and issues were framed by the Court in the light of pleadings of the parties

Later on, the defendants filed application for amendment in written statement, wherein it was pleaded that their counsel filed written statement without their consultation and detailed facts could not be incorporated in the written statement

Application for amendment by the defendants had been rejected by the Trial Court

Validity

Courts were liberal and lenient while allowing the amendment of pleadings, subject to certain conditions

Amendment should not be allowed where amendment sought was to alter the nature of defence or wholly displace written statement originally filed

Amendment in written statement, like plaint could not be allowed so as to introduce an inconsistent defence which would change nature of defence originally taken in earlier written statement

Amendment sought for in the present case, was for the withdrawal of admission made in earlier written statement

Such an amendment could not be allowed

Admission made in written statement had different character and legal significance than admission made generally

Admission made in written statement could not be allowed to be withdrawn through amendment

Application for amendment in written statement, had revealed that defendants had sought amendment in all paragraphs of written statement; introducing inconsistent defence which would change nature of defence originally taken by the defendants in their earlier written statement

Such-like amendment could not be allowed under O. VI, R.17, C.P.C.-Findings of the Trial Court which were in accordance with law and supported by sound reasons, could not be disturbed in revisional jurisdiction of High Court.

Trial Court rejected suit filed by the plaintiffs for want of cause of action as well as want of jurisdiction and Appellate Court had maintained judgment of the Trial Court

Claim of plaintiffs was that they were local destitutes and in possession of suit land, which was kind of khalsa sarkar since long as Nautor Kunaindah and proprietary rights were granted in their favour by Collector under Azad Jammu and Kashmir Grant of Khalsa Land Rules, 1985

Validity

Under amended S.3 of Azad Jammu and Kashmir Regularization of Nautors and Grant of Khalsa Land Ordinance, 1974 only those persons were entitled to obtain the grant of khalsa land who were holding Nautor Kunaindah on 15-6-1985 and continuous possession of the Nautor and recorded as such in the revenue record

Plaintiffs had made no Nautor over the suit land and in revenue record no entry had been recorded in that respect in favour of the plaintiffs

Plaintiffs in the earlier round of litigation were also ejected from the suit land-Due to absence of entry in revenue record and after ejectment from suit land, condition of continuous possession was disappeared

Plaintiffs, in circumstances, could not be granted proprietary rights and had no legal right in respect of suit land and had failed to establish the same under S.42 of the Specific Relief Act, 1877

Revenue Authorities were supposed to decide the grant of proprietary rights under Azad Jammu and Kashmir Khalsa Land Rules, 1985 and said authorities had jurisdiction to decide rightly as well as wrongly

Revenue authorities in the present case, had not travelled beyond their jurisdiction

Courts below had rightly declared that civil court had no vested jurisdiction to entertain the suit and the plaintiff had no cause of action

Courts below having committed no illegality while passing impugned judgments and decrees, appeal being devoid of force, was dismissed.

Suit for cancellation of instrument lies through declaration for cancellation of instrument declaring it to be void and voidable.

Plaintiff claimed to be owner in possession of the suit property and had denied execution of disputed , sale-deed in favour of the defendant

Trial Court dismissed the suit on the ground that the sale-deed had been proved to be executed by the plaintiff in favour of the defendant

Appellate Court, though reversed the findings of Trial Court regarding proof of sale-deed yet the suit was dismissed being barred by time

Validity

Decision of the Appellate Court had attained finality as the defendant did not assail the same any further

Final decision on the issues regarding execution of sale-deed in favour of the defendant had resulted in declaring the sale-deed as illegal, based on fraud and misrepresentation, void, ineffective and in-operative against the rights of the plaintiff and. the plaintiff was in possession of the land in dispute as owner

Such declaration had made the sale-deed as non-existent and therefore, the plaintiff could come before the court at any time for declaration and injunction that he was owner in possession of the land in dispute

Plaintiff came to know of the existence of the disputed sale-deed a few months prior to the filing of the suit and defendant did not produce any evidence to rebut such oral evidence

Appellate Court acted illegally in dismissing the plaintiff's appeal arising out of his own suit on the issue of limitation as the suit was within time

Judgment and decree passed by Appellate Court was set aside and the suit was decreed in favour of the plaintiff in circumstances.

Petitioner alleging fraud and misrepresentation, seeking declaration that transfer in favour of respondent was illegal and that authorities be directed to issue transfer documents in his favour-Petitioner's application for transfer of suit property having been finally rejected earlier for lack of locus standi

Mere desire of a person to bid at a future auction of property after transfer made in favour of transferee is set aside, is not a vested right and cannot be construed as a right in property within purview of S. 42 of Act (1 of 1877)

High Court's view that suit as framed was not maintainable and was rightly dismissed as such, upheld

Leave to appeal refused.

Declaratory suit by collaterals decreed holding that earlier compromise decree would not affect rights of plaintiffs after death of widow to inherit property in dispute

Order impugned

Compromise not to survive termination of limited estate

No question of law requiring further examination

Leave to appeal refused.

S. 42-Declaratory suit-Relief refused to petitioner on ground that be failed to satisfy normal standard for obtaining a finding of fact with regard to alleged damage to his house on account of an abandoned well (bouli) constructed during Muslim rule in India

Effort being to re-open case on question of finding of fact for which no justification existed, petition, held, merited dismissal-However although petitioner failed to establish specific damage allegedly caused by concerned respondents possibly could not be excluded of petitioner suffering damage in future-Respondent's counsel unable to show it not being responsibility of authority concerned to keep bout in such condition as not to cause any damage or nuisance to petitioner and other residents of locality- Respondent's counsel undertaking to inform concerned authority to do needful in matter, petitioner's counsel not pressing petition any further, hence petition dismissed.

S. 42-Declaratory suit-Pleadings of parties unanimously reflecting respondent having had only life interest in land in dispute-Mutation which petitioner appellant endeavoured to defend also sanctioned on assumption of respondent having bad a limited interest under custom Limited estate under custom having terminated under S. 3 of West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962), petitioner's claim of having become absolute owner of land ill-founded Parties in 1942 governed by customary law but on termination of life estate after enactment of Act V of 1962, entire inheritance, held, reopened and respondent entitled to her shariat share and not mere maintenance allowance.-[Succession-Custom (Punjab)].

Legal representatives of some of defendants impleaded in suit not brought on record after death of such defendants during pendency of appeal-Appeal, in circumstances, held, abated in toto.

Suit for cancellation of instrument" and "suit for declaration that instrument is not binding on plaintiff`'"-Difference.

S. 42-Declaratory suit-Expression "legal character"-Meaning-Equivalent to word "status" -Suit for declaratlon that plaintiff is not in default of stipulated contract-Not maintainable-Words and phrases "Status"-Meaning.

Declaratory suit-Plaintiff in addition to declaration praying for consequential relief-Case governed by S. 7(iv)(c)-Specific Relief Act (I of 1877), S. 42.

Not permissible under law except in circumstances mentioned in S. 42-Expression "legal character"-Meaning.

Plaintiff in possession of suit land-Prayer for further relief or injunction in absence of threat in this behalf not necessary Kumar Bhupendra Kishore Acharyya Choudhury and others v. Province of Bengal P L R 3 Dacca 320 rel.