1. ' MRS, SYEDA TAHIRA SAFDAR, J.---The petitioners have preferred instant petition being aggrieved of order dated 23-5-2005 of Majlis-e-Shoora, Mekran at Turbat, whereby the order dated 6-10-2004 of Qazi Pasni was set aside, while the case was remanded to the trial Court for deciding it on merits. It is their contention that the appellate Court erroneously come to the conclusion that deciding application under Order VII, Rule 11, C.P.C. Issues were required to be framed, further khasra numbers given in revenue record can be used for identification of property, moreover, non using of term rejected would not make order of trial Court unlawful. Furthermore, the judgment in first filed suit will operate as res judicata in second suit. They have prayed for setting aside of impugned order while order of Qazi.Pasni be restored.
2. ' The brief facts of the case are that the respondents/plaintiffs filed a suit seeking declaration, permanent injunction and correction of revenue entries. According to them they being residents of Nailant Kappar and Kulanchi where they owned joint property while petitioners/ defendants are also residents of same area. It is their contention that the petitioners/defendants in collusion with Tehsildar Bandobast entered their (respondents/plaintiffs) property in their own names depriving them of their rights despite the facts that they have no right in the property. They prayed for declaration to the extent of their title and entering the property in their names deleting thereby the names of defendants Nos. 1 to 39/including present petitioners, In rebuttal the defendants in their separate replies denied title was well as possession of the respondents/ plaintiffs. Rather asserted that the property is rightly entered in their names. Several legal objections in respect of maintainability of suit were raised.
3. ' During pendency of suit several applications under Order VII Rule 11, C.P.C. Were moved by the defendants whereby objections to the effect of suit being hit by law of estoppel, non-joinder of parties, non-payment of court-fee, non-correction of plaint and being hit by section 12, C.P.C. Were raised. The applications were contested by the plaintiffs. The trial Court after hearing the parties accepted the applications and dismissed the suit under Order 7 Rule 11, C.P.C. Being not maintainable through order made on 6-10-2004. The learned trial Court thereby held that as the suit is in respect of declaration and correction of entries, while prayer is to the extent of ejectment, as there is contradiction as such suit is not maintainable. Secondly the boundaries of property in question are not given in plaint, thus for want of proper description of property in question suit is not maintainable. Further, as per plaint the defendants are in possession of property in question, as such suit for mere declaration is not maintainable; rather they were required to file, suit seeking ejectment. As another suit for same property is already filed by Haji Sher Muhammad, 'which is pending, thus on same subject matter two suits are not maintainable. Further, due to the fact that previously the father of defendants Nos.31 to 38 filed a suit against some plaintiffs and defendants wherein it was contended that the property was already partitioned, which proved the fact of partition. Furthermore, without assessing the valuation suit is not maintainable. Plaintiffs also failed to implead daughters of Mir Qasim due to non-joinder of necessary party suit cannot proceed. The suit was dismissed by the trial Court accepting above mentioned grounds. Feeling aggrieved of the same the respondents/plaintiffs preferred appeal before Majlis-eShoora, who after hearing the parties accepted the appeal through order dated 23-5-2005, holding therein that the trial Court failed to consider the relevant provision of Civil Procedure Code and came to wrong conclusion.
4. Further, ordered for remand of the case for deciding it on merits. The petitioners are aggrieved of this 'order while submitted present petition seeking setting aside of order of appellate Court and restoration of order of the trial Court.
5. ' In matter in hand the trial Court held that the suit is not maintainable under provision of Order VII, C.P.C. The trial Court has dismissed the suit on mere legal objections as discussed therein. As far as objection in respect of contradiction existed in contents of the plaint is concerned, the same is to be dealt under Order VII, Rule 7, C.P.C. Surely relief is required to be granted as prayed for in the plaint, but a Court is empowered to grant all those reliefs which the justice demands in the circumstances of the case either specifically prayed or otherwise. Even in case any relief is omitted, the prayer clause can be amended as per provisions of Order VI, Rule 17, C.P.C. The trial Court failed to consider this aspect of the case, nor attended to the relevant provision of law. As far as objection regarding providing of proper description of property in question in the plaint is concerned, Rule 3, Order VII, C.P.C. Is relevant, it is though mandatory that sufficient description for identification of the property is required to be given in the plaint, but in case of failure of describing the same properly further and better B particulars, may be asked from the concerned party, or suit be allowed to be amended. It is no ground for dismissal of suit on very initial stage, that too without recording of any evidence. The trial Court made an error while recording findings to this extent. As far as plea in respect of possession of property in question is concerned, both the parties claimed to be in possession of the same. It is a factual controversy which can only be resolved after calling of evidence from both the sides. The trial Court without considering this .Aspect simply rejected the suit relying on facts which are yet to be established. The view taken by learned Qazi is not in accordance with relevant provision of law. The fact that which party is in possession can only be determined by recording of evidence and decision taken thereon. As such is the case in respect of findings about effecting of disputed entries and partition between co-sharers, Thus without calling record from concerned Authorities and evidence no decision can be arrived at. Even the trial Court failed to observe the provisions regulating the suits filed with prayer for partition. Section 54, C.P.C.
6. And Order XX Rule 18, C.P.C. Are to be observed while deciding the issue of partition, which the trial Court failed to keep in sight, thus comes to the conclusion which is contrary to relevant provision of law. Though in the plaint the suit has not been valued for purpose of affixation of court-fee and assessing of jurisdiction, which is required to be made under Order VII, Rule 1(i), C.P.C. But no suit can be rejected in case suit is under valued or insufficiently stamped until and unless opportunity is given to make good the deficiency to the plaintiff, in case of his failure in time fixed by the court the plaint shall be rejected. But in present, case though objection is raised from defendant's side, but the trial Court neither come to the conclusion that there is deficiency in payment of court-fee or suit is under valued, nor any opportunity was given despite the same the plaint was rejected. Order made is in violation of relevant provision of law. The trial Court further failed to observe this provision of law and come to a wrong decision. Further, the assessment and value is to be determined only after procuring of evidence which is yet to be called. As far as objection in respect of filing of previous suit with same subject-matter is concerned. The learned appellate Court specifically discussed this aspect of the case and arrived to the conclusion, also perusing the record of said cases, the mentioned suits are of distinct cause of actions. Thus not barred under section 11, C.P.C. The learned appellate Court decided this issue properly and comes to right conclusion. It is also finding of trial Court that suit is not maintainable due to non-joinder of necessary parties. Order 1 Rules 9, 10 and 13, C.P.C. Are relevant in respect of non joinder, misjoinder of parties and raising objections to said extent. But it is specifically provided in Rule 9 that no suit shall be defeated by reason of misjoinder or non-joinder of the parties, rather the Court is required to deal with the matter in controversy so far as regards the rights and interest of the parties actually before it. Further, as per Rule 10(2), C.P.C. The court can strike out or add parties. The trial Court while dealing with this objection overlooked these provisions of law, thus comes to an erroneous findings.
7. In view of above discussion the trial Court without observing the relevant provisions of law comes to conclusion that suit is not maintainable under Order VII Rule 11, C.P.C., which is surely an erroneous view. The courts must not stress on deciding the cases on F mere technicalities, rather try to decide the same on merits. The learned appellate Court has arrived to a valid decision, which needs no interference from this Court. In the circumstances the petition is dismissed being without merits, while the order dated 23-5-2005 of G Majlis-e-Shoora Mekran at Turbat is hereby upheld. In addition the trial Court is directed that issues be framed on factual as well as on legal grounds, while on concluding of trial case be decided on merits.
8. ' No orders as to costs.