Through this civil revision, the petitioner has challenged the judgment dated 21.6.2006 passed by the learned Additional District Judge, D.G. Khan, whereby while accepting the appeal of the respondents, set aside the order dated 25.3.2006 passed by the learned Civil Judge, D.G. Khan, whereby he accepted the application for temporary injunction filed by the petitioner. The learned Additional District Judge D.G. Khan also rejected the plaint of the petitioner under Section 7 Rule 11 CPC vide the same judgment.
2. Brief facts necessary for the disposal of the civil revision are that Mst. Ameena petitioner/plaintiff filed a suit for declaration against the respondents/defendants to the effect that they had no concern whatsoever with the suit property and she was sole owner in possession of the suit property and entries in record of rights were inoperative on her rights attached with the property.
The petitioner/plaintiff also filed an application seeking temporary injunction till the final decision of the suit to the effect that the respondents/defendants be restrained from selling the suit property or changing its nature. The suit as well as application for temporary injunction were resisted by the respondents/defendants. Vide order dated 25.3.2006, the learned Civil Judge, D.G.
Khan accepted the application of the petitioner/plaintiff for temporary injunction. Against the said order, the respondents/ defendants filed an appeal which was accepted, the order dated 25.3.2006 was set aside and the plaint of the petitioner/plaintiff was also rejected under Order 7, Rule 11 CPC.
Hence this civil revision.
3. It is contended by learned counsel for the petitioner that the learned Appellate Court could not reject the plaint while hearing the appeal against the interim order as it was not seized of the main suit, as such the impugned order is illegal, without jurisdiction and coram-nonjudice, in this behalf reliance is placed upon Nishan Ali vs. Sher Muhammad and 3 others (2004 MLD 1809), Mushtaq Hussain vs. Province of Punjab through Collector Jehlum District and 6 others (2003 MLD 109) and Iftikhar ul Haq vs. 'District Canal Officer and others (2005 CLC 1740); that the learned Appellate Court had rejected the plaint after observing that the suit is in competent because the petitioner/plaintiff had not challenged the validity of Mutation No 2278 dated 17.5.1929 and this observation of the learned Additional District Judge is not consonant with the law applicable in such situation because whenever Court decides that the suit is incompetent, amendment is necessary for said purpose, and therefore, it was the duty of the Court to provide a chance for amendment but the learned Additional District Judge had passed the impugned order in hasty manner, in this behalf reliance is placed upon Muhammad Ismail and another v. Roshan Ara Begum and others (PLD 2001 Lahore 28) and Mst. Ghulam Bibi and others vs. Sarsa Khan and others (PLD 1985 SC 345). It is further argued that after every four years, record of rights are revised and fresh cause of action begins, as such the suit is not barred by time.
4. On the other hand, learned counsel for the respondents has contended that relief flows from the facts in the plaint had even if the amendment is allowed, the defect could still remain as mutation was not challenged in the suit, as such the suit was incompetent, in this behalf reliance is placed upon S.M. Shafi Ahmad Zaidi through Legal Heirs vs. Malik Hussain Ali Khan (MOIN) through Legal Heirs (2002 SCMR 338); that this civil revision is not maintainable as the original decree has been passed against the petitioner and RFA should have been filed and where an appeal lies, no revision petition is maintainable, in this behalf reliance is placed on S. Azizul Hassan and another vs. Malik Ghulam Muhammad (1971 SCMR 123) and Ghulam Muhammad vs. United States Agency for International Development (U.S. AID) Mission, Islamabad and another (1986 SCMR 907) and that the mutation was carried on in that year 1929 and the same has been challenged in the year 2004 as such the suit is barred by time.
5. I have heard learned counsel for the parties and perused the impugned judgment.
6. It is an admitted fact that the respondents filed an appeal against the order dated 25.3.2006 passed by the learned Civil Judge Class III, D.G. Khan, whereby he accepted the application of the petitioner for the grant of temporary injunction. The learned Additional District Judge D.G. Khan while hearing the appeal against the interim order, rejected the plaint of the petitioner by exercising powers under Order 7 Rule 11 CPC.
7. Now the question which has been urged in this civil, revision is whether the Appellate Court was competent in law to reject the plaint of the petitioner while deciding the application for the grant of temporary injunction when it was not seized of the main suit.
8. The scope of the appeal before the learned Appellate Court was restricted. The lis at that time was pending before, the learned trial Court. The learned Appellate Court, in the circumstances, could not have rejected the plaint of the petitioner at this juncture. It was only to decide the appeal to the extent of the grant of temporary injunction. I am fortified with my above view by a judgment of this Court reported in 2004 MLD 1809 titled Nishan Ali vs. Sher Muhammad and 3 others, wherein it has been held that the learned Appellate Court could not reject the plaint while hearing the appeal against the interim order as he was not seized of the main suit. The scope of the appeal before the learned Appellate Court was as to whether the appellant was entitled for the grant or refusal of the temporary injunction. The Appellate Court could not have rejected the plaint as the lis was pending before the learned trial Court.
9. In view of the above circumstances and relying upon the judgment reported in 2004 MLD 1809 titled Nishan Ali vs. Sher Muhammad and 3 others, I am of the view that the learned Appellate Court was not competent to reject the plaint of the petitioner while hearing the appeal against the grant of temporary injunction by the learned trial Court. Therefore, this civil revision is accepted and the impugned judgment is set aside. Resultantly, the case is remanded to the learned Additional District Judge D.G. Khan who shall decide the same afresh in accordance with law or course.