1. MRS. JUSTICE SYEDA TAHIRA SAFDAR, J.---The petitioners, through instant petition, sought revision of order dated 17-10-2007 of Civil Judge-V, Quetta, whereby suit filed by them was dismissed being not maintainable under provisions of Order VII Rule 11, C.P.C. and order dated 31-5-2008 of Additional District Judge-VI, Quetta, whereby the appeal filed by them was also dismissed. It is their contention, that both the courts below, while dismissing the suit and appeal, did not consider relevant provisions of law, rather simply dismissed the suit on legal objections raised by respondents Nos.1 and 2, even without calling of evidence. Further contended that as there is misappreciation of relevant provisions of law, as such the impugned orders are illegal, thus liable to be set aside. It has been prayed that both the impugned orders be set aside, while the case be remanded to the trial Court for disposal, in accordance with law.
2. Counsel for the parties are heard; while record is perused. Learned counsel for the petitioners contended, that the trial Court failed to consider the provisions of Order XXIII Rule 1(3), Order VII, Rule 11 and Order I Rule 9, C.P.C. Further, the suit was dismissed by the trial Court instead of rejecting the same, as per requirement of the law. While in reply, learned counsel for the respondents contended, that the suit was hit by sections 8 and 42 of the Specific Relief Act. Further, the petitioners have not filed any document in support of their case, before the trial Court. Further contended, that the petitioners previously filed a complaint against respondent No, 1, which was dismissed, as such second suit cannot be filed being barred by section 11, C.P.C. He further argued, that proper court-fee has not been affixed on present petition, as such it is liable to be dismissed for want of payment of required court-fee.
3. It is apparent from record that the petitioners Parveen Akhtar and Mst Amna, filed a suit seeking declaration of their title, being owners of suit property, also prayed for possession of the same.
4. While permanent injunction was also prayed, against the respondents/defendants, to the effect of restraining them from making interference therein. In their joint written statement respondents Nos.1 and 2, while strongly contesting the suit raised several objections, on maintainability of the suit. The trial Court, though framed issues on legal objections as well as on merits of the case, but before calling evidence of the parties, decided Issue No,1, pertaining to legal objections, through order dated 17-10-2007, after hearing the counsel for the parties. Thereby arrived to the conclusion that the suit is not maintainable having no cause of action, thus dismissed it while invoking provisions of Order VII, Rule 11, C.P.C. The petitioners being ,aggrieved of the order, challenged the same by way of filing appeal. The appellate court i,e, Additional District Judge-VI, Quetta through order dated 31-5-2008, while holding that the requisite court fee has not been affixed by the plaintiffs on the suit and due to non-mentioning of specific period when the cause of action has accrued, and also as there is no explanation about withdrawal of the previous suit, the appeal being found meritless thus dismissed, while the order of the trial Court was upheld. It is further apparent from record, that the petitioners filed instant revision petition, which was dismissed in limine by this Court through order dated 14-3-2009, which was appealed before the honourable Supreme Court of Pakistan, who, through order dated 16-9-2009, set aside order of this court, and remanded the petition for re-writing of the judgment, after affording proper opportunity of hearing to all the concerned.
5. Counsel for the parties were heard thereafter, and record is perused. The trial Court while deciding the suit only give findings on legal objections raised by defendants Nos.1 and 2/respondents Nos.1 and 2 in their joint written statement. The first objection was to the effect that the suit is hit by provisions of Order XXIII, Rule 1(3), C.P.C., it is objected that as the plaintiffs have already withdrawn a suit previonsly filed by them unconditionally, as such second suit is not maintainable. The trial Court while deciding this objection found it to be not relevant. The second objection i,e, "D" of the written statement filed by defendants Nos.1 and 2/ respondents Nos.1 and 2, was to the effect that as the plaintiffs are claiming the property in question being their ancestral property, and relied upon certain documents including revenue entries, which has no connection with the house in dispute, further the plaintiffs neither being recorded owners nor in possession, thus the suit is not maintainable under the provisions of section 42 of the Specific Relief Act. The trial Court while deciding this objection held that the plaintiffs have no ownership documents, nor date of their dispossession is mentioned, thus the suit is not maintainable in light of Section-42 of the Specific Relief Act. While to the extent of legal objection "F", the trial Court only on relying the objections, comes to the conclusion that the respondent No,3/ defendant No,3 is unnecessarily joined as party, further some Abdul Razzaq and Abdul Ali, being occupants of house in question, are not made party to the suit, thus suit is bad for misjoinder and non-joinder of parties, and not maintainable. As far as objection "H", which pertains to the valuation of the suit, the trial Court simply disbelieved the valuation assessed in the plaint and held that the required court fee has not been affixed, thus concluded that the suit is not maintainable, and is liable to be dismissed under Order VII, Rule 11, C.P.C. The appellate court, while agreeing with the findings of the trial Court, also dismissed the appeal filed by the petitioners, on same grounds.
6. The trial Court as well as appellate court failed to appreciate legal provisions of law and arrived to the conclusion, which is erroneous. As far as, withdrawal of the suit is concerned, though there is a bar on filing of fresh suit under provisions of Rule 1(3) of Order XXIII C.P.C., but the burden is wrongly placed on the petitioners, rather it is the defendants Nos.1 and 2/respondents Nos.1 and 2, who raised the objection, thus have to establish that the suit is barred by above mentioned provision of law. As far as, misjoinder and non-joinder of the parties are concerned. Order I Rules 9 and 10, C.P.C. are very much relevant and clear. It is specifically provided, under Rule 9 of Order I, C.P.C., that no suit shall be defeated by the reasons of misjoinder and non-joinder of the parties, rather under Rule 10(2) of Order I, C .P.C. , the court is fully empowered to struck out or to add parties at any stage of the proceeding. If court arrives to the conclusion, that a party is improperly joined, it can be strike out, or if the court arrives to the conclusion that any person is necessary to be joined as party, for proper decision of the case, the court may at any stage of the proceedings joined such person as party to the suit. Both the courts below fell in error that suit is not maintainable on basis of non-joinder and misjoinder of parties, without exercising the powers vested in them. As far as, objection relating to the ownership of the petitioners/plaintiffs is concerned, it cannot be decided merely on documents annexed with the plaint. Rather the issue of title relates to the factual aspect of the case, thus cannot be decided without recording of evidence of the parties. The trial Court simply relied on the documents, which even have not been brought on record as per relevant provisions of law, rather comes to the conclusion that the suit is not maintainable under section 42 of the Specific Relief Act erroneously. Section 42 of the Specific. Relief Act does not empower the court to decide the issue of facts, on mere assertions of the parties, rather it relates to the discretion vested in a court in respect of declaring status or right of a party, by way of filing a civil suit. This provision of law has been misunderstood by the trial, as well as by the appellate court. As far as valuation of the suit is concerned, apart from the objection raised on valuation of the suit by any of the defendant, initially the court has to rely on the valuation as assessed by the plaintiff in the plaint, as per provisions of D Order VII Rule 1(i), C.P.C. Though Rule 11 of the Order VII, C.P.C. empowers the court to reject the plaint on ground, that the plaint is insufficiently stamped, and the plaintiff has failed to file requisite stamp paper within the time fixed by the court. In present case the petitioners/ plaintiffs have valued their suit as Rs,24,000. Though respondents Nos, t and 2/defendants Nos. 1 and 2 raised objection on such valuation, with assertion that the suit property valued more than Rs,600,000. But, there is no objection to, the effect, that the suit is insufficiently stamped. Thus in the circumstances, initially the court has to rely on the valuation as assessed by the plaintiffs in the plaint, while requisite court-fee is required to be affixed on the basis of such valuation. As far as, objection to said extent is concerned, the valuation is to be decided by the court on basis of the evidence produced before it, where after, the court 'is required to give sufficient time to the plaintiff to file requisite court-fee, and in case of failure shall reject the plaint.
7. But, in present case, this has not been done, rather the trial Court simply based its findings on the assertions made by the respondents Nos.1 and 2/defendants Nos. 1 and 2, and on its own presumptions, which is neither legal, nor proper.
8. In view of above discussion both the courts below have failed to consider the legal requirements and arrived to the decision, which is contrary to law, thus liable to be set aside. The revision petition, is hereby accepted. Impugned orders dated 31-5-2008 of Additional District Judge-VI, Quetta and 17-10-2007 of Civil Judge-V, Quetta, are hereby set aside. The case is remanded to the trial Court, for deciding it afresh, after recording of evidence, strictly in accordance with law.
9. No order as to costs.