1. ' ABDUL RASHEED KALWAR, J.--- Applicants filed suit for declaration and injunction against the respondents mainly with following prayers:--
(a) Declare that the act of the defendants Nos.1 to 3 in cancelling the existing R.M.S. And changing the outlet of plaintiff's water course No.340/2 AR Naukot Branch, Mithrao canal is illegal, void ab initio, improper, unjust, unwarranted by law, against the principles of natural justice and highly mala fide and therefore is not sustainable in law and unenforceable.
(b) Grant permanent injunction against the defendants restraining and prohibiting them from implementing the impugned orders, changing the outlet of the plaintiffs water course and from interfering in plaintiffs taking water for their lands in accordance with existing R.M.S. Viz, outlet themselves or through their agents, servants, subordinates or by any other means directly or indirectly.
2. ' The suit was filed by the applicant in the Court of Senior Civil Judge-III, Mirpurkhas on 14-2-2001 which came to be numbered as F.C. Suit No.11 of 2001. The cause of action for filing suit was shown by the applicants/plaintiff, to have accrued about one week before presentation of plaint when they were informed about cancellation of existing water course/R.M.S. And changing thereof. The continuation of cause of action was averred as the defendants had extended threats to the plaintiffs for implementation of the impugned order within a day or two at the time of filing of suit.
3. Besides, the filing of written statement, application under Order VII, rule 11, C.P.C. Supported with an affidavit was also filed by the respondents/defendants on the following grounds:--
(1) That from reading of the plaint it does not disclose cause of action.
(2) That from reading of the plaint the suit is barred by law.
(3) That prayer is made in the interest of justice.
4. ' The applicants filed counter affidavit and contested the said application, however learned trial Judge had rejected the application mainly on the following grounds:--
(1) That the plaintiffs have filed the present suit on 14-2-2001 after expiry of three years, five months and fourteen days from the date of sanctioning the General RMS dated 30-8-1997. The suit as such itself is time barred.
(2) That the plaintiffs have also suppressed the facts of institution of previous suit and its dismissal, having been filed by same Advocate on same subject matter and between the same parties. The previous suit bearing No.52 of 1998 filed on 30-6-1998 in this Court and was withdrawn by plaintiffs on 19-4-2001.
(3) That the act complained restraining the defendants to cancel the R.M.S. Already cancelled prior to institution of the present suit.
(4) That mere on account of alleged apprehension no cause of action is to accrue for filing the suit as the cause of action will be accrued when the act or order attains finality.
5. ' The trial Court responding to the arguments of the plaintiffs also observed in the impugned order that "there was no necessity to give notice to plaintiffs or afford them an opportunity of being heard as the plaintiffs have been cultivating their lands on the basis of existing R.M.S. Prior to 1995".
6. ' The trial Court rejected the plaint on 24-7-2008 which was called into question through a civil Appeal No.50 of 2003 having been filed in the Court of District Judge, Mirpurkhas on 12-8-2003.
7. Appeal was admitted and after service respondents contested the appeal. By then such appeal was transferred from the Court of District Judge, Mirpurkhas to the Court of 1st Additional District Judge, Mirpurkhas where it was heard and dismissed vide impugned judgment, dated 16-10-2004 and impugned decree dated 23-10-2004. The appellate Court had maintained the order of Senior Civil Judge on account of concealment of the fact of filing of previous suit by the plaintiff bearing Suit No.52 of 1998 having been withdrawn on 19-4-2001 and also on the point of limitation.
8. ' Learned Advocate for applicants has argued that limitation for filing of suit for declaration is governed under Article 120 of the Limitation Act for which 6 years' limitation is provided.
9. Furthermore he has stated that there was no notice issued to him about the change of R.M.S or order passed in that respect. The limitation started from the date of knowledge, which was one week prior to the date of filing of the suit. The right to sue, accrued to plaintiffs subsequent to the knowledge, they received. He also states that question of limitation was mixed question of law and facts which could not be resolved by mere going through the contents of the plaint. He has drawn my attention towards a certified true copy of the plaint in Suit No.52 of 1998, which is available on record. This Suit No.52 of 1998 had been filed by one Haji Allah Bux s/o Muhammad Ismail v.
10. Executive Engineer Mithrao Division. While referring to the plaint of this suit, he has stated that neither the plaintiffs/applicants are legal heirs of said Haji Allah Bux nor they claim title from him.
11. The applicants had independent cause of action against the respondents. There is no bar for the applicants to bring their own suit on the basis of their own right to sue. The suit filed by one Haji Moula Bux may be a collusive one for coining a reason to create hurdles for the plaintiffs/applicants. He says that two Courts below have wrongly taken affect of filing and withdrawal of Suit No.52 of 1998 against the applicants/plaintiffs. The two Courts below have leaned beyond the averments made in the plaint for rejection of plaint, which is illegal and not sustainable in the eye of law. The Advocate for applicants has vehemently criticized the findings of two lower Courts and assailed the impugned orders and prayed for setting aside the judgment and decree of the appellate Court as well as order of lower Court. So also he has prayed for rejection of application under Order VII, rule 11, C.P.C. Besides making prayer for disposal of the suit on merits.
12. ' Mr. Mukhtar Ahmed Khanzada, State Counsel has vehemently opposed the contentions of applicant's counsel, saying that Courts are not legally bound to confine themselves to the contents of plaint only but for the purpose of achieving the ends of justice they can look into other material which may be available to them. As per him suit is time-barred and withdrawal of the previous. Suit No.52 of 1998 has to affect the maintainability of suit because the suit was filed by another peechdar of the same watercourse. The Advocate in both the suits was same. He has relied upon the cases reported as 1994 MLD 207, 2004 CLC 799, 1989 SCMR 824 and 2002 SCMR 338.
13. ' After hearing the parties, I had allowed the Revision Application with following order on 4-11-2008:- -- "For the reasons to be recorded later on, the Civil Revision Application is allowed and impugned judgment dated 16-10-2004 and decree dated 23-10-2004 passed in Civil Appeal No.50 of 2003 Feroze Hussain and others v. Executive Engineer and others by the Court of 1st. Additional District Judge, Mirpurkhas are set aside, so also order dated 24-7-2003 passed by IIIrd Senior Civil Judge, Mirpurkhas in F.C. Suit No.11 of 2001 on the application under Order VII, rule 11, C.P.C. Is also set aside and matter is remanded back to the trial Court for disposal- according to law. The trial Court is at liberty to entertain all objections of the defendants and frame specific issues to that effect, if deems fit."
14. ' The reasons for the above order are as follows:-- ' Before discussing the scope of the provision of Order VII, rule 11, C.P.C. In the light of circumstances of the present case it would not be improper to refer to text of said Order VII, rule 11, C.P.C. Order VII, rule 11. Rejection of plaint.--- The plaint shall be rejected in the following cases:-
(a) where it does not disclose a cause of action;
(b) where the relief claimed is under-valued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;
(c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so; and
(d) where the suit appears from the statement in the plaint to be barred by any law.
15. ' There is no dispute regarding valuation or court-fee. Sub-rules (a) and (d) are attracted under the circumstances of the case, which clearly limit the action of Court within the statement made in the plaint.
16. ' The learned two Courts below have not confined themselves to the averments of plaint only but they have taken into consideration all the facts regarding Suit No.52 of 1998. Being influenced by the facts of filing and withdrawal of Suit No.52 of 1998 by one Haji Allah Bux is not only contrary to the scheme of the provisions of Order VII, rule,11, C.P.C. But thereby both the Courts below have misled themselves to wrong conclusion , extending barring affect of withdrawal of that suit on the suit of applicants. There is no prohibition in law whereby the plaintiffs could have been debarred from presenting the plaint and maintaining the suit for their own independent cause of action. The plaintiffs in Suit No.52 of 1998 had neither filed a representative suit nor the plaintiffs/applicants in that suit had claimed their title from him as a legal heir or otherwise. The plaintiffs are well within their right to file the suit for their own cause of action and the suit No.52 of 1998 has no barring affect on it due to withdrawal thereof.
17. 'The applicants have specifically stated in the plaint that they had knowledge about the change of R.M.S one week before the filing of the suit. There was no occasion to disbelieve the statements of the plaintiffs, contained in the plaint. Even if such statement as to limitation is disputed then it can only be resolved by framing issue on the point of limitation and after affording opportunity to all the parties for adducing their evidence and proving or disproving the issue in the manner provided under the law. In order to be benefited from the case-laws cited by learned State Counsel, the relevant portions thereof are reproduced as follows:--
(1) In the case of Muhammad Ramzan v. Tariq Mahmood and 28 others reported in 1994 MLD 207, it is observed as under:-- "There is considerable force in the arguments raised by the learned counsel for the respondents.
18. Generally, the Court has to consider averments made in the plaint while rejecting he plaint under the provisions of Order VII, rule, 11 of the C.P.C. However, the Court can also look into the contents of the written statement and the other material on the record and reject the plaint summarily to secure the ends of justice or to prevent the abuse of the process of the Court. For this purpose the Court can definitely fall back upon the provisions of section 151 of the C.P.C. In some cases, a party after losing the case upto the highest legal forum, reagitates the same matter in the Civil Court and then wants the Court to decide the suit on merits and not to reject the plaint by looking into the contents of the written statement or the judgments passed in the earlier round of litigation. In the case of Bashir Ahmed a tenant lost his case upto the level of the Supreme Court and thereafter filed a suit to set at naught the final judgment of the Supreme Court whereby order of High Court was upheld. Re-opening of the matter through a civil suit was considered to be barred by the law and notice for contempt of Court was issued to the tenant as well as his counsel who had drafted the plaint."
(2) In the case of S.M. Shafi Ahmed Zaidi through Legal Heirs v. Malik Hassan Ali Khan (Moin) through Legal Heirs reported in 2002 SCMR 338, it is observed as under:-- "Besides averments made in the plaint other material available on record which on its own strength is legally sufficient to completely refute the claim of the plaintiff, can also be looked into for the purpose of rejection of the plaint. It does not necessarily mean that the other material shall be taken as conclusive proof of the facts stated therein, but it actually moderates that other material on its own intrinsic value be considered along with the averments made in the plaint."
(3) In the case of Mst. Mazhar Khanum v. Sheikh Saleem Ali and 7 others reported in 2004 CLC 799, it is observed as under:-- "The instances can be multiplied where it is permissible for the Court to look beyond the contents of the plaint itself. It is the duty of the plaintiff to place before the Court absolutely clean cards and to disclose all relevant facts forming the background of the dispute as a whole, without in any manner, suppressing any material fact or aspect of the case. He should not deliberately conceal the earlier litigation, if any, with malicious and vexation design. In a case where the suit of the plaintiff is conceived out of motives and unbecoming tactics and tricks designed to harassing the defendant, the latter has every right to seek indulgence of the Court to look beyond the contents of such a plaint. And, if the defendant brings to the notice of the Court facts which, though in existence at the time the suit was filed by the plaintiff who was supposed to plead the same, but were withheld for any reason whatsoever, the Court cannot shut its eyes, and to sit as a mute spectator or observer, rather it must take into consideration already existing relevant facts, brought to its notice through the written statement and the undisputed documents filed in support thereof, and treatingthose facts as an integral part of the plaint, it would be justified to determine whether the suit is ultimately to fail, and, if so, not to subject the defendant to the rigours of a protracted trial, inconvenience, waste of time and money, besides mental agony and torture. If on consideration of the overall facts and circumstances, the Court comes to a definite conclusion, without unduly leaning towards the defendant and at pains of unnecessarily stretching the facts in his favour, with obvious motive to shutting out altogether the plaintiff once for good."
19. 'The case-laws cited by learned State counsel are based on peculiar circumstances in which the Courts could take into consideration certain factors outside the contents of plaint. One citation reported in 1989 SCMR page 824 is pertaining to criminal law. The facts and circumstances of present case are different from those of mentioned in the above citations. With profound respect, I am left with no option than to say that facts and circurnsrauces in the aforementioned case-laws are distinguishable with the facts and circumstances of the present case. The rhetoric and discussion as incorporated in the orders of two Courts below, appears as if they were the judgments after full dress dial. Such practice of lower Courts resorting to resolve the factual controversies and deciding the mixed questions of facts and law at the time of decision on application under Order VII rule 11, C.P.C. Is disproved. The impugned orders are not sustainable therefore, the same were dismissed and Revision Application was allowed for the foregoing reasons.