MIR SAHIB JAN vs JANAN

' ZIA PERWEZ, J.---This appeal is directed against the judgment dated 20-11-2008 in R.F.A. No,51 of 2007 whereby the case was remanded for decision on the issue pertaining to the identity of Janan son of Meer Muhammad (Kala).

2. The suit instituted by respondent seeking declaration and correction of mutation entry with respect to land bearing Khata 24, Khatooni No,32 situated in Mouza Takra Khandeli, Halqa Rarkan, Tehsil and District, Barkhan claiming to have purchased the same under the sale agreement executed between the parties for Rs,4,50,000 out of which respondent claimed to have paid Rs,4,00,000. Appellant contested the suit on the ground that earlier father of appellant Mir Muhammad and his uncle prepared two forged sale deeds dated 12th January, 1987 and 13th March, 1996, however; both the documents were proved to be fake and forged. The litigation finally rested with the decision of this Court. The second round has now commenced, appellant instituted another suit on the basis of another agreement/deed.

3. It appears that after prolonged series of litigation finally resting with the judgment of this Court dated 21-2-1995 in C.P.L.A. No,139-Q of 1994 the execution application was moved but the second round has been commenced to deprive the appellant of the fruit of his decree. Earlier the attorney Janan contested the case on behalf of the plaintiff claiming to be son of Kala. During the second round of litigation plaintiff mentioned his name as Janan son of Mir Muhammad. The defendant in their written statements referred to the earlier proceedings and in addition also took the objection by way of an application moved under Order VII, Rule 11, C.P.C. Duly supported; by their affidavits to the effect that the suit filed by the Janan showing his father name as Meer Muhammad was not maintainable as the plaintiff had been appearing in the earlier round of proceedings as attorney by the name of Janan son of Kala. In addition to the above, statement of. Janan respondent was also recorded before the Court where respondent himself disclosed his father's name as Kala.

Learned members of Majlis-eShoora, Barkhan in their judgment based their finding on the statement of respondent recorded on 25-8-2004 where he himself stated the name of his father as Kala in addition to the affidavits filed by the appellants. Therefore it is borne out from the record that respondent and the attorney Janan is the one and the same person. This finding of fact based on record was overlooked by the learned Bench of the Balochistan High Court. It is not uncommon for people to have specific names entered on the record that are different from their common nick names or alias used in everyday life. The parties are not stranger to each other and affidavit in this respect has also filed by appellant who has personal knowledge of his identity in addition to the personal statement of the respondent. During the earlier round of litigation similar agreement has already been declared to be a fraudulent document. The order of the learned Division Bench of the High Court therefore is not sustainable and is liable to be set aside.

4. It may not be out of place to observe that there is a growing tendency that even after final adjudication of the matter parties indulges in abuse of the process of law by way of frivolous, repetitive and fraudulent litigation. An onerous duty is cast on those charged with the difficult task of administering justice to take effective measures against the obstinate litigants and their lawyers as laid down by this Court in Bashir Ahmed v. Abdul Hameed (1984 SCM R 689), Abdul Hayee v.

Sardar Muhammad (1984. SCMR 1149) and Jaliluddin v. H.B.L. And others (1985 SCM R 1965).

5. Accordingly we allow this appeal, set aside the impugned judgment of the High Court of Balochistan, Quetta dated 20-11-2008 in R.F.A. No,51 of 2007 and restore the order dated 13th July, 2007 of the Majlis-e-Shoora, Barkhan in case No,01 of 2007 with cost of Rs,1,00,000 in favour of the appellant to be paid by the respondent.

(Sd.)

Zia Perwez, J.

(Sd.)

Sarmad Jalal Osmany, J.

' With utmost respect I am unable to agree with the view taken in the judgment prepared by my learned brother and have thus recorded my views separately.

(Sd.)

Sayed Zahid Hussain, J.

' SAYED ZAHID HUSSAIN, J.---The judgment prepared and the view expressed therein by my learned brother Zia Perwez, Judge has been carefully gone through by me but with utmost respect I say so that I have not been able to persuade myself to agree with the same. I have thus recorded my view in respect of the controversy as below.

2. R.F.A. No,51 of 2007, arising out of a declaratory suit filed by the respondent was heard by a learned Division Bench of the High Court of Baluchistan, Quetta and the matter was remanded vide judgment dated 20-11-2008, to the Majlis-e-Shoora, with the direction "to frame issues in the light of pleadings of parties and decide the suit after affording opportunity of leading evidence to both the parties." On a petition under Article 185(3) of Constitution of Islamic Republic of Pakistan, 1973 leave to appeal was granted on 6-4-2009. This is thus an appeal against the remand order of the High Court, the legality and justification whereof is to be examined.

3. There is stated to be some litigation qua the property in dispute in the past as well and the matter ultimately came before this Court in the form of CPLA No,139-Q of 1994 titled Kamran and 7 others v. Sahib Jan and another. That petition was dismissed on 21-2-1995. Thereafter, a declaratory suit with injunction, possession and for cancellation .Of agreement dated 13-3-1996 was filed by Sahib Jan appellant and another against Karam and seven others, which suit was decreed by the Majlis-e-Shoora, Barkhan on 30-8-2004. It is the case of the appellants that in the execution proceedings the judgment debtors therein filed objections before the executing Court and eventually the objection petition was dismissed on 28-2-2007. A suit for declaration and correction or revenue entries titled Janan son of Mir Muhammad Sahib Jan son of Ishaq based on an agreement dated 11-7-2006, was filed by the respondent in which the application filed by the appellant under Order VII, Rule 11, C.P.C. Was accepted and the suit was dismissed on 13-7-2007, which gave rise to the instant litigation. The respondent had filed appeal their against (RFA No,51 of 2007) which was accepted by the learned Division Bench of the Baluchistan High Court; Quetta and the matter was remanded to Majlis-e-Shoora.

4. The learned counsel for the parties has been heard and the material on the record has been considered.

5. The precise contention of Mr. Tariq Mehmood, Advocate Supreme Court is that the suit was incompetent and non-maintainable in view of the previous litigation on the subject and that it would be the abuse of the process of the Court to permit the continuation of such litigation.

However the contention of Raja M. Afsar, Advocate Supreme Court is that a different and fresh cause of action was pleaded by the respondent/plaintiff in the suit, which was based on agreement dated 11-7-2006 and the appellant/defendant had received a sum of Rs,4,00,000 out of the total consideration money of Rs,4,50,000. According to him the Majlis-e-Shoora acted on assumptions and illegally in dismissing the suit as it over looked that while applying the provisions of Order VII, Rule 11, C.P.C. Only the contents of the plaint were to be kept in view.

6. There is on the record a document "Iqrar Nama/Bae Nama" dated 11-7-2006 purported to have been executed by Sahib Jan appellant in favour of Janan respondent. Perusal thereof shows that a sum of Rs,4,00,000 had been received by the appellant and the balance amount of Rs,50,000 was outstanding; a receipt to that effect also appears in the paper book. The suit was based on this document. In the written statement filed by the appellant/defendant, it was alleged that the said document i,e, agreement dated 11-7-2006 is a result of forgery and fabrication. It was also pleaded that the suit was mala fide and frivolous. Some reference to previous litigation was also made. An application under Order VII, Rule 11, C.P.C. Was also filed for "dismissal" of the suit. The said application was contested by filing reply by the respondent/plaintiff, who re-asserted that the suit was based on a fresh cause of action i,e, agreement dated 11-7-2006 and was maintainable. While deciding that application the Majlis-e-Shoora appeared to have dealt with the matter as if it was deciding the suit after due trial, whereas neither issues had been framed nor the stage of producing/recording of evidence had yet reached. The suit was however dismissed on the view taken by the Majlis-e-Shoora that there had been litigation inter-se the parties qua the same property and also entertained doubts about the parentage of the respondent/plaintiff. The approach adopted by Majlis-eShoora in summarily dismissing the suit, was not approved by the learned Division Bench of the High Court as the respondent/plaintiff had instituted the suit for declaration and correction of mutation entries on the basis of sale agreement dated 11-7-2006. It was observed that the controversy resting on factual assertions of the parties called for framing of issues in the light of the pleadings of the parties and remanded the matter to the Majlis-e-Shoora.

7. It is undeniable that the present suit was based on agreement dated 11-7-2006, asserting fresh cause of action as pleaded in the plaint. The previous litigation if at all had any nexus with the present suit it was a matter of evidence to be produced by the parties. No such evidence had yet been produced. The plea of the petitioner as to the identity of the respondent/plaintiff that he was the same person who had been contesting the proceedings in the earlier rounds was also a question of fact. Such a factual controversy could adequately be resolved by granting opportunity to the parties of producing evidence after framing necessary issues. Suffice it to observe that in Jewan and 7 others v. Federation of Pakistan and 2 others (1994 SCM R 826), this court had remanded the case to the trial Court for decision afresh in accordance with law by setting aside the judgments of the Courts and rejection of the plaint was not approved. In that case although, in an earlier round the matter stood concluded by the judgments of the Superior Courts, it was observed that for the purpose of applying the provisions of Rule 11 of Order VII, C.P.C. Only the contents of the plaint and such other admitted material could be taken into consideration by the Court. It was observed that "The Court while taking action for rejection of plaint under Order VII, Rule 11, C.P.C. Cannot take into consideration pleas raised by the defendant in the suit in his defence, as at that stage the pleas raised by the defendants are only contentions in the proceedings unsupported by any evidence on record. Howevcr, if there is some other material before the Court apart from the plaint at that stage which is admitted by the plaintiff, the same can also be looked into and taken into consideration the Court while rejecting the plaint under Order VII, Rule 11, C.P.C.

Beyond that the Court would not be entitled to take into consideration any other material produced on record unless the same is brought on record in accordance with the rules of evidence." It was noted that "In the case before us, the trial Court dismissed the suit of the appellants after reaching the conclusion that the suit filed by them was mala fide and based on concocted and distorted facts. It was also observed that there was nothing on the record to show that the plaintiff was not an occupancy tenant of the land. The above finding by the Court is not based on any evidence and was possibly taken from the averments made by the defendant in his pleadings which were still unsupported by any legal evidence on the record." It was thus held that "Until such time the documents relating to earlier proceedings were brought on record in accordance with law and the matter was thoroughly examined with regard to controversy in the two proceedings, it was not possible for the Courts below to reach the conclusion that the present suit involves the same controversy which was decided in the earlier proceedings. We, accordingly, allow this appeal, set aside the orders of the lower courts rejecting the plaint under Order VII, Rule 11, C.P.C. The case is remanded to the trial Court with the direction to dispose of the case in accordance with law". The view expressed by this Court in Jewan's case (Supra) facts whereof had close identity with the instant case is fully attracted and I respectfully invoke and follow the same. There was no material (admitted by the plaintiff) which could be taken into consideration by the Majlis-e-Shoora at that stage, as it was a hotly contested case. The provisions of Order VII, Rule 11, C.P.C., therefore, were wrongly and erroneously applied by the Majlis-e-Shoora.

8. The prime object and purpose of establishment of Courts is to dispense justice to the parties before it in accordance with law and to discourage frivolous litigation. The philosophy behind the provisions of Order VII, Rule II, C.P.C. i,e, rejection of the plaint at the initial stage, is based on the concept, "nipping the evil in the bud before it surfaces." For the application of this golden rule guiding principles have been laid down by the Courts from time to time. False and frivolous litigation undoubtedly need to be curbed and stringent measures should be adopted by the Courts at all levels. To achieve this objective when necessary the Court should burden the party concerned with heavy costs. Such a step however ought to be taken when the Court reaches the conclusion about the falsity of stance of a party. It will be dependent upon the facts and circumstances of each case.

9. In view of the above, the judgment rendered by the learned Division Bench of the High Court of Baluchistan, Quetta remanding the case to the Majlish-e-Shoora is unexceptional and is upheld.

The direction of the Baluchistan High Court as to decision of the suit within a period of four months will begin from now.

10. The appeal is dismissed accordingly, with no order as to costs.