MUHAMMAD MUZAMMAL KHAN, J. --- This judgment propose to decide three revision petitions (C.R.
307-D/2000, C.R. 308-D/2000 and C.R. 309-D/2000) as the same raise similar questions of law and facts, between the same parties, and are directed against the consolidated orders/decrees dated 4.1.1999 and 19.1.2000 passed by the learned Civil Judge and the learned District Judge, Jhelum, whereby at the time of decision application for temporary injunction under Order XXXIX, Rules 1 and 2, C.P.C., petitioners' plaints were rejected under Order VII, Rule 11, C.P.C. And the appeals there-against failed respectively.
2. Precisely, relevant facts are that the petitioners filed three suits against the respondents for declaration with permanent consequential relief, challenging .Three different sale mutations, sanctioned on their behalf, on the statement of their alleged general power-of-attorney, which were said to be forged and fake. In the first suit, the petitioners claimed that they are owners in possession of 2 kanals, 5 marlas of land bearing khasra No. 2647 and 3 kanals, 15 marlas of land out of khewat No. 1181, but its sale Mutation No. 4269 sectioned on 10.11.1987 on the basis of general power-of attorney dated 15.3.1986 was without lawful authority as neither the attorney had power to alienate their land nor at the time of sanctioning of mutation, there existed any authority in him because the general power-of-attorney had already been revoked. The petitioners also challenged the subsequent transfer through Mutation No. 4459, dated 14.5.1988. The petitioners also challenged the subsequent transfer through Mutation No. 4459, dated 14.5.1988. The petitioners also averred in the plaint that they being illiterate simple villagers appointed their attorney through three different documents dated 15.3.1986, for maintenance of the property and not for its alienation/sale and the power-of attorney so given was revoked by all the three plaintiffs.
According to them, Muhammad Khan petitioner revoked the power-of-attorney on 18.9.1986, Muhammad Tufail revoked it on 27.9.1986, whereas Adalat Khan rescinded his attorney-ship on 28.3.1989. It was also asserted that their brother Ghulam Haider having died on 16.10.1986, his attorney-ship stood revoked by death of the Principal.
3. The petitioners in the second suit, challenged the sale Mutation No. 4272, dated 10.7.1987 with the similar allegations, those raised in the above-mentioned suit while in their third suit Mutation No. 4271 was challenged, besides subsequent Mutations Nos. 4272 and 4273 regarding land measuring 344 kanals, 14 marlas situated in village Khurd, District Jhelum. The petitioners on gaining knowledge of sanctioning of mutations moved to the revenue authorities for cancellation, on the ground that those have been fraudulently attested by ante-dating the same. In the revenue hierarchy the matter went up to the Board of Revenue in form of 5 revision petitions and ultimately those were dismissed with an observation that since the petitioners had alleged fraud, they should approach the Civil Court, that being the proper forum. Thereafter the suits in hand were filed before the Civil Court at Jhelum. In all the three suits, original sale mutations were sanctioned on one date i.e. 10.11.1987 on the basis of statement of general attorney dated 15.3.1986. They also prayed a permanent injunction by way of consequential relief praying the respondents be restrained from interfering in their lawful possession over the land subject to suits. The petitioners alongwith their all the three suits filed applications under Order XXXIX, Rules 1 and 2, C.P.0 for grant of temporary injunction, seeking protection of their possession over the land in question.
The respondents being defendants in the suits,. Contested the same, besides resisting the issuance of injunction with the averment that the suits are barred by time, that the same are bad for non- joinder of necessary parties, that the petitioners earlier filed a suit through one Walayat Khan for similar relief which was dismissed and that one of the brothers of the petitioners filed a suit for possession through pre-emption which created an estoppal for maintaining the suits in hand, by filing their written statements/replies. The learned Civil Judge who was cognizant of the matter, at the time of hearing of the application for temporary injunction, not only dismissed the application but also rejected the plaint under Order VII, Rule 11, C.P.C. In all the three suits, taking the view that the petitioners, without challenging the order of the revenue authorities and without impleading them as parties, cannot maintain the suits, vide his orders/decrees dated 4.1.1999.
5. The petitioners aggrieved of the decision of their three suits, filed three appeals before the learned District Judge, but remained unsuccessful as the same were dismissed vide judgment and decrees dated 19.1.2000, with an added ground that the suits of the petitioners were barred by limitation. Thereafter three revision petitions, as noted above, were filed by the petitioners, challenging the orders/decrees of the two Courts below. All the revision petitions were admitted to regular hearing and after service of the respondents, the same have now been placed for final determination. The respondents were represented through Mr. -Tariq Mehmood Janjua, Advocate, whose name has appeared in the daily cause list of this Court, but inspite of sending a call to the Bar Room and repeated calls in the petitions none has appeared for the respondents, hence they are proceeded against ex parte.
6. The learned counsel for the petitioners submitted that the plaint under Order VII, Rule 11, C.P.C.
Could only be rejected, had it not disclosed a cause of action or the same, from the statement therein, had been barred by any law but none of these eventualities occurred in the case in hand, thus the two Courts below have wrongly rejected the plaint. He further submitted that the case fore the Trial Court was fixed for arguments on application for grant of temporary injunction and the parties had only addressed their arguments on this application but the Trial Court, erroneously rejected the plaint, without hearing the parties, simultaneously. It was argued on behalf of the petitioners that neither any suit, earlier was filed by any brother of the petitioners, for declaration or pre-emption nor the petitioners, if at all, were parties thereto, hence none of the bars obtained in Section 11 or Order II, Rule 2, C.P.C. Were attracted. It was also urged that even on this point the Courts below should have granted an opportunity of producing evidence to the parties, so that the matter in question, should have been decided with clarity, According to him, had there been any suit by the petitioners, the Courts below should have mentioned the number thereof, date of its decision and name of the Court but the record is absolutely thirsty of any such proof. The learned counsel for the petitioners referred to the judgments in the case of Abdul Qadir and others v. Allah Wasaya and others (1997 CLC 311) and Mst. Sharifan Begum and others v. Muhammad Shahbaz and others (2000 CLC 63), besides the judgments of the Honourable Supreme Court in the case of Jewan and 7 others v. Federation of Pakistan through Secretary. Revenue, Islamabad and 2 others (1994 SCMR 826), to contend that rejection of plaint at preliminary stage especially when fraud and forgery has been alleged, is not justified and in such cases, period of limitation would run from the date of knowledge of the alleged fraud/forgery. Another alighted judgment of the Honourable Supreme Court in the case of Khushi Muhammad and 3 others v. Mst. Zainab Bibi and 20 others (1981 SCMR 814) was relied on the point of limitation that it would run from the date of knowledge. The learned counsel further emphasized that besides the second side the order of rejection of plaints, possession of the petitioners over the land in question, may be required to be maintained, as prima facie the mutation proceedings are fake, as according to him, on the day of recording of statements of the alleged general attorney, the Revenue Officer was not on tour to the place of attestation of those mutations. In support of this contention he has placed on the file a tour schedule/programme of Tehsildar Jhelum regarding July, 1986.
7. I have minutely considered tie arguments of the learned counsel for the petitioners and have examined the record appended with the three revision petitions. Undeniably, none of the Courts below have mentioned the number of earlier suit by the petitioners or their brother, name of the Court deciding that suit and date of its decision. There is not an iota of evidence in form of copy of the plaint, decision or any other ancillary documents, to show that who and for what purpose filed suit, relied by the two Courts below and as to whether, the petitioners were party, thereto. An emphasis have been made in the impugned orders that the petitioners lost their cases in the revenue hierarchy, without looking into decision given by those authorities. The final order dated 18.2.1997 by the learned Member (Judicial-I) Board of Revenue, Punjab, Lahore, besides the other things observed in the following manner:- "(vi) The petitioners have alleged fraud. When there is an allegation of fraud by one party against another, the paper forum is a Civil Court and not the Revenue Courts."
8. The observations made by the learned Member, Board of Revenue are not only just and fair but are also in accordance with the settled principles laid down by the superior judiciary of this country that mutation proceedings being summary in nature, intricate the questions involving determination after recording of evidence should be left open for decision by the Civil Court. The ultimate decision in the revenue side, did not block the approach of the petitioners to the Civil Court, rather gay, them a way to maintain suits under adjudication. It wa., claimed before me that the Trial Court at one stage had allowed amendment of the plaint, allowing them to implead the revenue authorities as party but before filing of amended plaint the same was rejected. The learned counsel for the petitioners could not refer to any such order but be that as it may I am confident that in view of provisions of Order I, Rule 9, C.P.C., plaint could not have been rejected on this score, under the provisions relied by the two Courts below. Under law no suit is to fail by mere mis-joinder or non-joinder of the parties, as the Court has to deal with the matter in controversy, inter-parties. The petitioners in their three suits had challenged three respective sale petitioners in their three suits had challenged three respective sale Mutations No. 4269, 4270 and 4271 sanctioned on 10.11.1987, on the statement of their alleged general attorney on the ground of fraud and forgery. They had appended with the plaint three revocation deeds and death certificate of Ghulam Haider, their brother. These documents revealed that Muhammad Khan petitioner revoked the power-of-attorney on 18.9.1986; Muhammad Tufail cancelled it on 27.9.1986, whereas Adalat Khan rescinded it on 28.3.1989. Prima facie the attorney on the day of his statement attorney at least to the extent of Muhammad Khan and Muhammad Tufail. As regards Ghulam Haider the 4th brother of the petitioners who appointed him as attorney, he had died on 16.10.1986 and by death the attorney-ship, if any, stood automatically revoked. Al! These matters require determination after recording of evidence, thus were rightly left open by the revenue authorities for decision by the Civil Court. According to my humble view the approach of the petitioners to the revenue authorities and their decisions do not create or attract any of the provisions of Section 11 or Order II, Rule 2, C.P.C. And the petitioners could not have been non-suited, on this basis.
9. Question, as to whether the suit was barred by limitation was mixed question of law and facts because it would start running from it. The petitioners did assert in paragraph 13 of the plaint that cause of action accrued to them on 18.2.1997 when their revision petition was dismissed by Member, Board of Revenue, directing them to approach the Civil Court. It is settled law that fraud vitiated .Even the solemn proceedings and if the petitioners succeed in proving that they have been defrauded, limitation would not come in their way to have the mutations adjudged if those were sanctioned at their back/knowledge. Reference in this behalf can be made to the cases of Messrs Bisvil Spinners (Pvt.) Ltd. v. Pakistan through Secretary. Ministry of Finance, Islamabad and 2 others (PLD 1992 S.C. 96) and Qureshi Noor Hussain and 7 others v. Ghulam Jan and 5 others (PLD 1984 Peshawar 86).
10. The plaint as drafted, did disclose cause of action as the petitioners denied authority of the attorney to alienate/sell out their land and that too, after registered revocations, asserting that those mutations were attested by anti-dating the same. From the statement of the petitioners in the plaint, suit was not barred by any law, thus, plaint could not have been rejected, especially at preliminary stage while deciding the application for temporary injunction, without calling upon the parties to substantiate their respective claims through evidence or arguments. The respondents in their written statement had prayed for 'rejection of plaint as the suit, according to them, was not maintainable in its present form. There is also an objection regarding suit being barred by limitation and being bad for mis-joinder and non-joinder of causes of action and necessary parties. All these matters should have been brought to issues and after treating those as preliminary under Order XIV, Rule 2, C.P.C., parties should have been given opportunity of leading evidence in support of their respective stances, instead of showing hurry of rejection the plaint on an uncalled for occasion.
11. Besides all fairness and that the petitioners had a prima facie/arguable case in their favour who were bound to suffer an irreparable loss and injury in case of dispossession and being undisputedly owners in possession, were to suffer inconvenience, as compared to the respondent, parties should have been required to maintain a status quo. Pending the suit but a contrary view taken by the two Courts below is not in consonance with the record thus, is not sustainable at law.
12. For what has been discussed above, it is obvious that both the Courts below not only committed the material irregularities and illegalities in exercise of their jurisdiction amenable to revisional jurisdiction of this Court but also ignored the mandates of the Honourable Supreme Court by applying the provision of law which was not attracted, thus, their orders/decrees deserve to be set aside. All the three revision petitions are consequently accepted and the orders/judgments and decrees dated 4..1.1999 and 19.1.2000 passed by the learned Civil Judge and the learned District .Judge, Jhelum are set aside and the application of the petitioners for grant of temporary injunction is accepted requiring the parties to maintain a status quo with regard to land in question pending the suits, with the result that all the three suits of the petitioners shall be deemed to be pending before .The Trial Court and shall be decided in accordance with law. Parties are left to bear their own costs. .