' MUHAMMAD ALAM KHAN, J.--- Sanaullah and others have brought the instant revision petition against the Chairman, WAPDA and others vide which they have challenged the order, dated 25-10- 2008 of the learned Additional District Judge-II, D.I. Khan through which their appeal against the order dated 27-5-2008 passed by the Civil Judge-VIII was dismissed.
2. Briefly narrated facts of the case are that land measuring 5 Kanals comprising Khasra No,599 entered in Khata No,9/18 situated in the revenue estate of Mauza Ruk Kuhna, Tehsil and District D.I.
Khan was acquired by the respondents for the construction of a minor/Distributory drain for CRBC.
This suit was registered as Suit No,438/1 of 2005 and the learned Civil Judge,namely, Abdul Majid Khan, vide detailed judgment and decree dated 15-11-2005 passed a decree in favour of the plaintiff/petitioner to the tune of Rs,1,69,152.50 which judgment was never appealed against by the defendants/respondents and it had thus attained finality.
3. It so happened that subsequently the plaintiff/petitioner brought another suit for the recovery of profit on the decretal amount from 25-3-2007 the date when the possession was taken from him till the payment of the entire compensation. This is the suit in which the instant revision petition has arisen which was registered as Suit No,18/6 by the learned Civil Judge-VIII, D.I. Khan, and during its pendency, the defendants/respondents preferred an application for dismissal of the suit on the ground of violation of Order II, rule 2, C.P.C. It was alleged that while filing the earlier suit, the plaintiffs/petitioners could claim the interest and having not claimed have abandoned his right to claim it in the suit. The learned trial Court after calling for replication and hearing the learned counsel for the parties and perusing the data available on the record dismissed the suit vide impugned order, dated 27-5-2008 and his appeal filed there against also met the same fate vide judgment and decree, dated 25-10-2008, hence the instant revision petition challenging the dismissal of the suit summarily.
4. Mr. Muhammad Asghar Khan, learned counsel for the petitioners vehemently submitted that the suit could not be dismissed summarily without recording of evidence as the disputed question of fact was involved and the plaintiff could not have been non-suited summarily.
5. On the other hand, Mr. Minhajuddin Alvi, learned counsel for the respondents, submitted that in the earlier round of litigation when the plaintiffs/petitioners was claiming compensation of the suit- land, the plea of interest was also available to them which was not claimed and thus, they were debarred by their own conduct to claim the same and the element of estoppel come in their way while claiming the same. It was also submitted that such interest was not claimed in the earlier round of litigation, the subsequent suit was barred under the provisions of Order II, rule 2, C.P.C.
Which was rightly dismissed by the learned trial Court and maintained by the Appellate Court. It was also submitted that the two Courts below have held concurrently that the provisions of Order II,rule 2, C.P.C. Were applicable, cannot be set at naught by this Court in its revisional jurisdiction under section 115, C.P.C. Reliance in this was placed on Kashmir Khan v. National Bank of Pakistan Head Office at I.I. Chundrigar Road, Karachi and Branch Office at M.A. Jinnah Road Quetta PLD 2001 SC 325, Mrs. Irene Wahab v. Lahore Diocesan Trust Association 2002 SCMR 300, Farmanullah Khan v.
Agricultural Development Bank of Pakistan through Manager Tank Branch, District Tank PLD 2000 Pesh.
10. He also submitted that the allegations contained in the plaint pertained to the land acquisition proceedings where right of reference under section 18 of the Land Acquisition Act, 1894 was available to the petitioners and having not availed the same, Civil Courts lacked jurisdiction to entertain the matter.
6. I have carefully gone through the record of the case and anxiously considered the arguments advanced at the Bar by the learned counsel for the parties.
7. So far as the question of jurisdiction is concerned, scanning of the record reveals that the land of the petitioners was taken possession by the respondents. Neither any notice under section 9 of the Act (ibid) was issued to them nor they were informed to be associated with the acquisition proceedings, so much so that after the announcement of the alleged Award by the Land Acquisition Collector, no notice under section 12(2) of the aforesaid Act was given to them. That is why they filed a civil suit claiming the compensation of their acquired land which was decreed in their favour by the learned trial Court in Suit No,481-1-Nim of 2005 decided on 15-11-2005 against which neither any appeal nor any revision was filed by the defendants/respondents and that has attained finality. Furthermore, when the expropriated landowners do not challenge the Award of the Land Acquisition Collector nor challenged the quantum of compensation, enhancement of the same or its apportionment, then the Civil Court had got the jurisdiction to entertain the suit in view of the dicta handed down in the case of Nawab Ali and others v. Bajwant Singh and others 1995 CLC 1824 and the case of Saif-ur-Rahman v. Fazal Rahman and 2 others reported in PLD 1984 Pesh.
Page 219. Thus, the objection with respect to the jurisdiction of the Civil Court has got no substance.
8. The orders of the learned two Courts below are also not in consonance with the established principles of law. The suit could not be summarily dismissed as the parties had to lead evidence pro and contra and in order to enable the Court to arrive at a correct conclusion and the summary dismissal of the suit has shut the doors of Courts for leading evidence to the parties and deprived them of a chance of hearing. Suit involving disputed question of law and fact cannot be summarily dismissed or the plaint rejected in view of the dicta handed down in the case of Ghulam Dastagir v.
Mst. Maryam and others 1993 MLD page 1005 and Messrs Hoechst Pakistan Limited v. Messrs Cooperative Insurance Society and others 1993 MLD 2464.
9. The third point agitated by the learned counsel for respondents that since estoppel exists against the plaintiff/petitioner, to claim interest is also without substance as in view of section 34 of the Land Acquisition Act, no waiver or estoppels comes in the way of the expropriated C landowners. For the sake of ready reference, section 34 aforesaid is reproduced below:--- "34. Payment of interest.--- When the amount of such compensation is not paid or deposited on or before taking possession of the land, the Collector shall pay the amount awarded with simple interest thereon at the rate of six per centum per annum from the time of so taking possession until it shall have been so paid or deposited."
10. The landowners cannot be deprived of their right of interest. Once their land is acquired, the payment of statutory interest of six per cent is obligatory on the acquiring department and neither any estoppel nor any waiver comes in the way of the expropriated landowners, in view of the dicta handed down in the case of Land Acquisition Collector, Nowshera and others v. Sarfraz Khan and others PLD 2001 SC 514 and in the case of Land Acquisition Collector, Islamabad Peshawar Motorway and another v. Muhammad Yousuf Khan and others 2004 CLC page 682 (Peshawar).
11. The orders of the learned two Courts below are cursory not based on correct interpretation of law and are liable to be struck down.
12. In view of the facts and circumstances of the case narrated above, this revision petition is accepted, the impugned orders of the two Courts below are set aside and the matter is remanded to the learned trial Court for decision afresh on merits after affording opportunity to the parties to lead pro and contra evidence. The parties are directed to appear before the learned trial Court, on 28-4-2009.