On 27.4.2001 the petitioners filed a suit against the respondents. A registered deed dated 1.3.1994 purported to have been executed by Mst. Zainab Bibi in favour of the Respondent No, 1 was questioned. The Respondent No, 1 filed an application under Order VII, Rule 11 CPC on 9.6.2001 stating that Noor Hussain earlier filed a suit as next friend of Mst. Zainab but it was found that she is not a lady of unsound mind and the plaint was rejected on 1.3.2001. It was accordingly prayed that the plaint be rejected. The application was replied. The learned trial Court dismissed the application on 26.10.2001 stating that the matter requires recording of evidence. The Respondent No, 1 filed a revision petition, which was allowed by a learned ADJ, Hafizabad, on 20.5.2002 who has rejected the plaint of the petitioners.
2. Learned counsel for the petitioners contends that apart from the fact that the present suit had been filed by the petitioners in their own right as LRs of Mst. Zainab Bibi, in the earlier suit the plaint was rejected and the suit was not dismissed, the present suit was, therefore, not barred under any provision of law. Learned counsel for the contesting Respondent No, 1, on the other hand, contends that since the main question as to whether or not Mst. Zainab Bibi was of sound mind stands decided, the present suit was barred by res judicata.
3. I have gone through the copies of available documents particularly the earlier order dated 1.3.2001 relied upon by the learned ADJ. I find that the order was passed in a suit stated to have been filed on behalf of Mst. Zainab Bibi through a next friend. The learned Civil Judge observed that there has been an earlier decision on 5.10.2000 that Zainab Bibi was of sound mind. He then observed that since Zainab Bibi is not a person of unsound mind, the suit filed by a next friend on her behalf is not competent and the plaint was rejected.
4. It will be seen that nothing was decided in the said suit through the said order. All that was held with reference to an earlier decision was that the suit could not have been filed by the next friend on behalf of Zainab Bibi and the plaint was rejected.
5. Order VII, Rule 12 CPC lays down in categorical term that the rejection of plaint would not constitute a bar to a subsequent suit. Apart from the said categorical statutory position, the plaint in the earlier suit was rejected on the sole ground that the person filing the suit was not competent to do so on behalf of Mst. Zainab Bibi. The present suit has been filed by the petitioners in their own right i,e, being the LRs of Mst. Zainab Bibi and they are disputing the said transaction. They have every right to do so and in case there are able to prove that the land was not sold by the lady to the respondent, they are entitled to a decree in their favour. Needless to state that the order dated 5.10.2000 relied upon by the learned Civil Judge in order dated 1.3.2001 itself is under revision vide my judgment recorded in the connected Civil Revision No, 2065/02. The writ petition accordingly is allowed. The impugned order dated 20.5.2002 of the learned ADJ, Hafizabad, is set aside. The result would be that the suit filed by the petitioners shall be deemed to be pending. The parties shall appear before the learned Senior Civil Judge, Hafizabad, on 16.12.2008. The learned Senior Civil Judge shall requisition the records, take a written statement from the contesting defendants, frame issues arising out of the pleadings and to decide the matter after recording evidence. I may further point out that any observations in this judgment made by this Court are only for the purposes of this judgment and are not to influence the learned trial Court in the matter of decision of the suit on its merits. No, orders as to costs.
6. A copy of this judgment be immediately remitted to the learned Senior Civil Judge, Hafizabad.