MIAN SAQIB NISAR, J.--- Both the matters S.A.O. No. 95 of 2000 and Writ Petition No. 8301 of 2000, are co- related and involve the common questions of law and facts, therefore, are being decided together.
2. Briefly stated the facts of the case are, that Mst. Namwar Khatoon, the predecessor-in-interest of the respondents, in the year 1973, brought two ejectment applications, seeking eviction of the appellants/petitioners as her tenants Shop No. 11 and residential premises No. 29, both located in the Property bearing No. S-38-R-103, commonly known as Saddat Building, outside Mochi Gate, Circular Road, Lahore. These two petitions were against Hamayun, Javed and Khalid, the three real brothers, on the ground, that the landlady intends to demolish the old building so as to re-construct it, for which purpose she had got a plan sanctioned from the Lahore Municipal Corporation on 16.10.1971. In reply submitted by Muhammad Khalid, one of the tenants, he refuted the execution of the rent note and consequently denied the relationship of tenancy between the parties. He further pleaded that the site plan got sanctioned by the lady from the Corporation on 26.10.1971, has expired. Whereas Hamayun and Javed were proceeded against ex parte. The learned Rent Controller, framed the preliminary issue of relationship and after recording of evidence, answered the same in the affirmative and accordingly' passed the ejectment order. Khalid did not challenge the order any further. Rather, Hamayun and Javed filed appeals, which were accepted on the ground that they were not served and have been condemned unheard. The matter was remanded to the Rent Controller for trial afresh. In the post-remand proceedings, for a considerable period of time, Hamayun and Javed did not appear, till they were served through proclamation in the newspaper on 26.7.1978. Anyhow, on the contest by the above-named, the learned Rent Controller passed an order under Section 13(6) of the Urban Rent Restriction Ordinance on 3.10.1979, and in failure to comply with the order, their defence was struck off on 28.2.1982, which order was challenged in Writ Petition No. 3235 of 1982. Though the order under section 13(6) was suspended, but the proceedings of ejectment petition were not stayed. Consequently, the following issue was framed on 24.6.1982: --- "Whether petitioner requires the premises in-question in good faith for reconstruction? OPP."
3. The order dated 28.2.1982, having also been challenged in appeal, which was accepted by the learned Additional District Judge, Lahore, on the ground that the arrears of rent had not been correctly worked out by the learned Rent Controller and the tenants were not provided with an opportunity to produce evidence to prove their bona fide in non-compliance of the said order.
Anyhow, the matter was remanded to the learned Rent Controller for decision afresh with 21 days and after the remand, the following issues were framed by the learned Rent Controller: --- Issues:---
(1) Whether the premises in dispute require reconstruction and the applicant needs the same for demolishing and construction? OPA.
(2) Whether the petitioner has not filed the petition through authorized person? OPR.
(3) Whether the buildings plan is not sanctioned according to law, if so, its effect? OPR.
(4) Whether the Court has got no jurisdiction to adjudicate upon the matter in the case after entrustment of the case by the Senior Civil Judge (Rent Controller)? OPR.
(5) Whether the conversion of the building into residential form cannot be done without the permission of the Rent Controller under section 11 of the Urban Rent Restriction Ordinance. If so, its effect? OPR. vvnether the premises in dispute are owned by several owners jointly. If so, us effect? OPR.
(7) Relief.
4. Parties were put to trial and vide order dated 7.9,1983, the learned Rent Controller seized of the matter, dismissed the ejectment applications. The landlady, filed appeals against the orders, which were dismissed. She challenged the above two orders through Wrt Petition No. 1531 of 1986 and Writ Petition No. 1124 of 1987, which were accepted by this Court on 20.1.1991 by observing as follows: "The building plan sanctioned by L.M.C. Was withdrawn for the reason that width of the side roadas shown in the building plain did not tally with the position at the spot. However, no objection was raised to the proposed reconstruction. It was merely a matter of clarification, which could have been sorted out by mutual discussion. The petitioner failed to appear before the L.M.C. Authorities as according to her she had not received any notice. It was for this reason that the learned Commissioner, Lahore Division accepted the appeal of Begum Namwar Khatoon (landlady) and set aside the order of revocation of the building plan by L.M.C. And remanded the case to the latter for reconsideration. In these circumstances, it could not have been said that the landlady had not obtained necessary sanction of reconstruction from the Municipal Corporation. The effect of the acceptance of the appeal by the Commissioner and setting aside the order of revocation of the building plan by the L.M.C. Was that the necessary sanction was still in the field and the anomaly about the width of side road was to be settled by the parties. There is no denying the fact that the petitioner had obtained the necessary sanction from L.M.C. Before filing the ejectment petitions against the respondents.
7. For the above reason, the ejectment applications could proceed and the learned Courts below were not justified to dismiss them. Accordingly, the writ petitions are accepted and the impugned orders are set aside, being without lawful authority and of no legal ffect and the cases are remanded to the learned Rent Controller for proceeding in accordance with law."
5. During the post-remand proceedings, two applications under Order 1, Rule 10, CPC, one by the tenants and the other by Syed Muhammad Munir Jilani, were filed for impleading the latter as a party to the ejectment petitions, on the strength, that he has obtained a Transfer Order from the Settlement Department about the property in dispute. While both the applications were dismissed, the learned Rent Controller, by a detailed order answered issue No. 1 in favour of the landlady and passed the order of ejectment. Syed Muhammad Munir Jilani did not challenge the order any further.
6. The tenants filed appeals against the order, which were accepted by the learned Additional District Judge on the sole ground that the sanctioned plan, produced by he lady , pertained to Property No. 101, which could not be availed for the ejectment of the tenants for the purpose of reconstruction, from the Property bearing No. 103. Consequently, both the ejectment petitions were dismissed. Mst. Namwar Khatoon, filed Writ Petition No. 15570 and Writ Petition No. 15571 of 1993, which were accepted by this Court on 16.10.1998, and it was held that:--- "From the order dated 20.1.1991, it is obvious that the parties raised objections to the validity of the plan, on the ground that ;ts sanction had been revoked and not on the ground that it pertained to some other property. After considering the respective point-of-view of the parties, t".Is Court concluded that there was a valid sea. :ion after order of Commissioner and that the ejectment petition could not have been dismissed. After the remand of the case, the respondent could not possibly take up new stand by alleging that the plan related to some other property. Their stand throughout has been that the plan related to the property in issue and that its sanction stood revoked and after having remained unsuccessful on that account, they could not be allowed to take a different plea. The learned Addl. District Judge, therefore, fell in error, in dismissing the ejectment petition, on a plea which ,did not exist in the circumstances of this case and also which could not have been urged in view of the remand order passed by this Court. The order of this Court was to decide the case on merits. The . Learned Additional District Judge could not bypass the directions of this Court nor could travel beyond the scope of the remand order. The reopening of another issue or dismissal of the ejectment petition by taking a new point in consideration, being beyond the order of remand, the impugned order cannot sustain. Since the learned Additional District Judge has not considered the other evidence on record nor decided the issue of reconstruction on merit and rejected ejectment application on an objection which could not be raised, therefore, case will be remanded for the decision of the appeal afresh on merit."
7. In these post-remand proceedings, the learned Appellate Court has dismissed the appeals of the appellants/petitioners. Hence the appeal and the writ petition.
8. Learned counsel for the appellants has argued, that the property in dispute does not correspond to the one, for which, the respondents have obtained the plan; in this regard, an application for adducing the additional evidence was moved with the learned Court of appeal, but the same has been ignored and not decided. On merits, it is submitted that the respondents had failed to make out a case for reconstruction of the property; the demand for eviction was with the tainted male fide intentions, obviously to seek the ejectment of the appellants and to rent out the same at enhanced rent or to dispose it of.
9. I have heard the learned courser for the parties. In the light of the two orders passed by this Court, which are reproduced above, obviously,, the plea that the property in-question is different from the one for which, the site plan has been got sanctioned by the respondents, was not at all available to the appellants/petitioners; even if any such application raising the above plea was filed by them, which according to the appellants' counsel has not been considered by the Court, while passing the impugned order, the application was liable to be rejected simply for the reason, that the Court below could not decide the plea by violating the orders of this Court. However, when asked in the Court, learned counsel for the appellants has conceded, that no application for the additional evidence has been moved in this appeal. Anyhow, it may be reiterated that the said plea was not at all available to the appellants. And obviously, the object behind the above was to further prolong the matter.
10. As regards the merits of the case are concerned, admittedly and as stands established on the record, the respondents' side is the owner of the suit property; they want to improve the property by spending money, for which site plan has been got approved. It is only for and on account of the delaying tactics used by the appellants, that since 1973 till this date, the possession could not be obtained by the respondents for the re-erection of their building; which if was not re-constructed by them, after getting the eviction of the appellants/petitioners, sufficient safeguards were provided by the law.
11. I feel sorry, for the wretched-landlady of the case, who kept waiting for the adjudication of her ejectment application by an administrative Tribunal, where simple and summary procedure is supposed to be applicable and ther lost her breath, yet the matter is lingering for the last 31 years.
This is one of the most deplorable and sad nature of cases, coming to my notice and for adjudication, where the owner of the property has been yearning for such a long period, to seek the eviction of his tenant on the ground of reconstruction, to have full benefits and yields of his improved property. However, from the record, it is vivid and apparent that the appellants used all the delaying tactics and were successful in making the mockery of law. Now again the plea, that the sanction plan does not correspond to the property in-question has been raised, which is the continuity of the fivolous stance of the appellants/petitioners and the obvious object is to further drag the matter on the score of additional evidence. From all the above, an in esistible conclusion, which can he drawn is, that the appellants/petitioners are mainly responsible for delaying the matter; they were and are instrumental ana a hurdle in the way of the process of dispensation cf justice, which when delayed is deemed to have denied. Resultantly, while dismissing this appeal and the writ petition as being without merits, I impose a special costs of Rs. 25,000/- each, which!
Feel is hard;y any compensation to the respondent' side, who have suffered for such a long period of time.
Appeal/Writ .
C.L.R. 832 [Lahore] Present: MUHAMMAD MUZAMMAL KHAN, J.
Muhammad Shafi anc 5 others Versus Amanat Ali and 5 others Writ Petition No. 2898 of 2004, decided on 10th December, 2004.
(a) Constitution of Pakistan (1973)-- - --Art. 199---Civil Procedure Code, 1908, S. 115, 0. VIII, R. 11---Arbitration Act, 1940, S. 14---Specific Relief Act, 1877, Ss. 42, 54---Declaratory suit of---Arbitration award/decision of---Subject-matter of---Rejection of plaint by revisional Court---Effect---Revisional Court below while setting aside order/decree of Trial Court, rejected plaint in declaratory/injunction suit---Writ petition thereagainst in High Court---Validity---A civil suit, without invoking provisions of Arbitration Act, 1940, for making such decision/award a rule of the Court or adjudication thereover was not maintainable-- - As a matter of fact, petitioner could file an application under said section of Act, 1940---Suit as stood was barred under law and did not disclose of any cause of action---Writ .
(Para 11,12)
(b) Constitution of Pakistan (1973)- ---Art. 199---Civil Procedure Code, 1908, S. 115, 0. VIII, R. 11---Specific Relief Act, 1877, Ss. 42, 54-- Declaratory/Injunctive suit of---Rejection of plaint by revisional Court of---Constitutional petition thereagainst--Remedy of---Question of---Constitutional petition in High Court against impugned order of revisional Court below rejecting plaint in said declaratory/injunctive suit---Validity-- Appeal against the order of rejection of plaint by revisional Court was not competent---Writ petition was correctly maintained.
(Para 9)
(c) Civil Procedure Code (V of 1908)--- - --S. 2(d), 0. VII, R. 11---Rejection of plaint---Order of-Nature of---Remedy---Order rejecting the plaint has the force of decree and as such is appealable only if the same is passed by any Court exercising the original jurisdiction:.
(Para 9)
For the Petitioner. Ch. Bashir Ahmed, Advocate.
For the State: Muhammad Zaffar Chaudhry, Advocate. Date of hearing: 10th December, 2004.
MUHAMMAD MUZAMMAL KHAN, J.--- Instant Constitutional petition seeks revisional judgment/orders dated 14.2.2004, passed by the learned Additional District Judge, Lahore, whereby revision petition of the respondents was accepted by allowing their application under Order VII, Rule 11, CPC and plaint of the petitioners was rejected, to be declared illegal, void and of no legal consequence.
2. Precisely, relevant facts are that the petitioners filed a suit for declaration with permanent injunction as consequential relief with the averments that the parties had exchanged their land inter se and on account of some subsequent dispute the matter was referred to "Panchayat" consisting of four Arbitrators who delivered their decision/award on 8.9.1990 declaring the petitioners owners of the land subject of suit. They further averred that they have become exclusive owners of the land, by virtue of decision of the "Panchayat" dated 8.9.1990 and the respondents had no right to interfere in their possession by any means whatsoever, thus, they may be restrained through a decree for permanent injunction.
3. The respondents being defendants in the suit, contested it denying the averments in the plaint and refuted the story of arbitration mentioned therein. The respondents besides filing their written statements also moved an application under Order VII, Rule 11, CPC praying rejection of the plaint on the ground that it did not disclose any cause of action and that the suit on the basis of some award is barred by law. The learned Civil Judge, cognizant of the suit, after obtaining reply to the application of the respondents, dismissed the same vide order dated 25.9.2003.
4. The petitioners aggrieved of the decision of their application under Order VII, Rule 11, CPC dated 25.9.2003 filed a revision petition before the learned Additional District Judge where they succeeded as their revision petition, as well as, application under Order VII, Rule 11, CPC were accepted and the plaint of the petitioners was rejected vide order dated 14.2.2004. Whereafter the petitioners flied the instant Constitutional petition with the relief noted above. The respondents in response to notice by this Court have appeared and are represented through their counsel .
5. The learned counsel for the respondents at the out-set, objected to the maintainability of the Constitutional petition on the ground that the order of rejection of plaint being a decree is appealable, hence an appeal thereagainst should have been filed and this petition is not maintainable. The judgments in the cases of Ghulam Muhammad vs. United State Agency for International Development (U. S. AID) Mission, Islamabad and another (1986 SCM R 907) and Mst. Kaniz Fatima and 3 others vs. M.B.R., Punjab, Lahore and 5 others (PLD 1973 Lahore 495), were relied in support of the objection raised.
6. The learned counsel for the petitioner submitted that the suit of the petitioners was not barred by any law and at the same time it disclosed a cause of action, thus, the plaint thereof could to have been rejected. He further submitted that the revisional Court exceeded its jurisdiction in rejecting the plaint, itself. According to him, since the plaint was not before the revisional Court, the same could not have been rejected and that, revisional Court was only to examine the legality or otherwise of the order of the Trial Court and if at all, the order impugned was not justified, the matter should have been remitted back for decision in accordance with law. In support of his submissions, the learned counsel for the petitioners relied on the judgments by the Honourable Supreme Court in cases of Chaudhary Muhammad Saleem vs. Muhammad Akram and others (PLD 1971 S.C. 516) and Qamar-ud-Din vs. Muhammad Din and others (PLD 2001 S.C. 518). The learned counsel for the petitioners replying to the objection of the respondent's counsel regarding maintainability of the Constitutional petition urged that since revisional order was passed in excess of jurisdiction, the same could be challenged in Constitutional jurisdiction as per judgment of the Honourable Supreme Court in the case of Qamar-ud-Din (supra). He further argued that the order rejecting the plaint passed by the revisional Court is not appealable, as the same was not passed by the Court exercising the original jurisdiction. In support of this submission reference was made to the judgment in the case of Abdur Razzaq vs. Collector of Customs and another (1995 CLC 1453).
7. The learned counsel for the respondents replying to the arguments of the petitioners refuted those and supporting the revisional judgment/order, urged that the plaint as drafted did not any cause of action because the petitioners could not file the suit on the basis of decision of the "Panchayat" in form of award, as the suit was barred under the provisions of Arbitration Act, 1940.
8. I have minutely considered the arguments of the learned counsel for the parties and have examined the record appended herewith. Before analyzing the case on merits, I intend to deal with the objection of the learned counsel for the respondents that the order rejecting the plaint by the revisional Court is appealable and hence Constitutional petition thereagainst, is not maintainable.
Order rejecting the plaint under Order VII, Rule 11, CPC is a decree by fiction of law, under Clause (d) of Section 2 of Civil Procedure Code, 1908. Since, the order rejecting the plaint is passed without proper adjudication of respective rights of the parties, hence, fresh suit on the basis of same cause of action has been permitted to be filed in terms of Rule 13 of Order VII of. The Code obviously subject to limitation and the aggrieved person has also a right of appeal against the order. A decree is appealable under Section 96 of the Code, which lays down that an appeal shall lie from every decree passed by any Court exercising the original jurisdiction. For ready reference Section 96 is reproduced as follows:--- "96. Appeal from original decree--- (1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorized to hear appeals from the decisions of such Court.
(2) An appeal may be from an original decree passed ex parte.
(3) No appeal shall lie from a decree passed by the Court with consent of parties.
9. In view of the above-reproduced provision of law , the order rejecting the plaint in terms of Section 2(d) of the Code, has the force of decree and as such is appealable only if the same is passed by any Court exercising the original jurisdiction. There is no cavil about the proposition that the revisional Court while discharging its jurisdiction under section 115, CPC cannot be treated the Court exercising original jurisdiction so the orders passed by it, even though having the force of decree cannot be challenged by way of an appeal under section 96 of the Code. My this view gets support from the judgment in the case of Abdur Razzaq (supra) wherein the earlier view on this point from the Karachi jurisdiction in the case of Tamizun Nisa vs. Parween Fatima, etc. (NLR 1985- Civil 325) and observations of the Honourable Supreme Court in the nature of obiter dicta in the case of Ghulam Hussain vs. Shahbaz Khan (1985 SCM R 1925), though having binding effect were treated as per incuriom decision.
Another aspect of the matter which goes in support of the above view is that under section 115, CPC revisional powers vested concurrently in the District Court and the High Court and a revision petition subject to the examination of the suit for purposes of jurisdiction, is maintainable either before the High Court or the District Court now if plaint is rejected by the High Court in revisional jurisdiction, its appeal should go before the Honourable Supreme Court, subject to Constitutional requirements of Article 185 of the Constitution of Islamic Republic of Pakistan, 1973 but all such orders are not challengeable under Article 185 of the Constitution. This all, brings me to hold that appeal against the order of rejection of the, plaint by the revisional Court, is not competent, especially when the petitioners had challenged the invocation of the revisional jurisdiction by the learned Additional District Judge, hence, the petition was correctly maintained as per judgment in the case of Qamar-ud-Din (supra).
10. Now dealing with the petitioner's stance that the revisional Court could not itself reject the plaint as the same was not before it and instead it should have remitted the case to the Trial Court for doing the same activity under its direction. No doubt scope of the revisional jurisdiction is controlled by certain prerequisites laid down in section 115 of the Code and those, powers are circumscribed by the condition of excess of, failure to exercise and exercise of jurisdiction in an illegal manner but inspite of it, this jurisdiction is very vast and corresponds to the remedy of "certiorari" which, though discretionary yet can be invoked suo motu, as well and the Court can make such order in the case, as it thinks fit. Since, in the language of section 115 of the Code, this Court can make such order as may be needed in the circumstances of the case, hence on invocation of this jurisdiction, the entire case becomes open for scrutiny, in view of the law laid down by the Honourable Supreme Court in the cases of Muhammad Swaleh and another vs. Messrs United Grain and Fodder Agencies (PLD 1964 S.C. 97), H.M. Saya and Co., Karachi vs. Wazir Ali Industries Limited, 'Karachi and another (PLD 1969 S.C. 65), and Municipal Committee, Bahawalpur vs. Sh. Aziz Elahi (PLD 1970 S.C. 506), and by the High Court in the cases of Muhammad Salim and others vs. D.C.O. And others (1994 M LD 295) and Muhammad Zaleem and another vs. Mst. Zarina Begum and 4 others (1996 M LD 1959), thus, there is no ambiguity that during the course of exercise of revisional jurisdiction, the Court exercising it can pass any order needed in the circumstances of the case including rejection of plaint, if the same is required on the touch stone of the Order VII, Rule, 11 of CPC.
11. Coming to the merits of the case, in connection with rejection of plaint, the revisional Court has given exhausting reasons in support of his order detailing that "Panchayat decision" in form of an award could not have been endorsed through a civil suit in supersession of provisions of Arbitration Act, 1940 and that an unregistered document, transferring title of property of the value of more than Rs. 100/- confers no title or interest in the property in favour of the transferee. Reliance of learned counsel for the petitioners on the case of Ch. Muhammad Sharif (supra) to assert that a civil suit in view of provisions of section 32 of the Act (ibid) was maintainable overlooks the findings of the Honourable Supreme Court in case, an award had been acted upon by the parties by mutual consent then of course, any of the parties could base his suit on it but in the case in-hand, what to talk of Panchayat decision/award, and proceedings culminating to it, were denied/refuted by the respondents in their written statement as well as, in their application under Order VII, Rule 11, CPC. It goes without saying that a civil suit, without invoking the provisions of Act 1940, for making such decision/award a rule of the Court or adjudication thereover, was not maintainable even according to the ratio of the judgment in the case of Ch. Muhammad Saleem (supra). Section 31 of the Arbitration Act, 1940 clearly provided that all the questions regarding the validity, effect or existence of an award shall be decided by the Court, in which the award has been or may be filed and by no other Court, Besides it, an unregistered Panchayat decision/award, without having backing of some decree by a Court of competent jurisdiction, like an order under section 14/17, Arbitration Act, could not have been implemented by the officials working in revenue hierarchy and their direction for filing a civil suit was of no consequence as no such suit was competent. As a matter of fact, the petitioners should have filed an application under section 14 of the Arbitration Act and the suit as it stood, was barred under law and did not disclose any cause of action.
12. For the reasons noted above, I have no hesitation to hold that the revisional Court correctly exercised its jurisdiction and aptly rejected the plaint and; without committing any illegality/irregularity, a lawful view taken by a Court of competent jurisdiction, within ambit of its framework, cannot be substituted in the Constitutional jurisdiction of this Court and consequently this petition having no merit, is dismissed with no order as to costs.