SHAHID ANWAR BAJWA, J. --- Claiming possession for a period of more than twenty years over a plot of land. The present applicant filed a suit for declaration and permanent injunction against the respondents and the following prayers were made:---
(a) To declare that the act of defendants by putting the area of 2600 sq. Ft. Out of S. No. 32 which is in possession of plaintiff in open auction without knowledge or notice to the plaintiff and disposal of his application for grant of 99 years lease is illegal, ultra-vires, void and without lawful authority.
(b) To declare that the plaintiff has preferential right over the disputed area of 2600 sq. Ft. Out of S. No. 32 for which he is in possession since long and have raised surrounding wall upon the same is entitled for its allotment/grant of 99 years lease as already recommended by the defendant No. 2 in favour of the plaintiff.
(c) To restrain the defendants Nos. 1 to 3 from disposal of an area of 2600 sq. Ft. Out of S. No. 32 in open auction themselves through their servants, agents and so also not to dispossess the plaintiff from same till disposal of the suit.
(d) Award costs of the suit.
(e) To grant any other equitable relief as deemed fit and proper
2. Issues were framed by the Trial Court on 9.8.2007. Thereafter an application u/O. VII, Rule 11, C.P.C.
Was filed. That application was decided by the Trial Court vide order dated 16.6.2010 and the plaint was rejected. Being aggrieved by that order Civil Appeal No. 88/2010 was filed by the present applicant and that appeal was dismissed by the Appellate Court vide order dated 30.11.2010.
3. Learned counsel for the applicant submitted that though he has no title over the property but he has been in possession for more then twenty years. He further submitted that initially a stay was granted by the Trial Court but then the stay application was dismissed. Against the dismissal of stay application he filed an appeal, that appeal was also dismissed. Against that decision he invoked jurisdiction of this Court in Civil Revision No, 43/2010 where interim stay was granted to him.
Trial Court has noticed that stay application was dismissed by this Court without noticing that vide order dated 4.6.2010, the interim order was withdrawn because the learned counsel for the present applicant was not present and however the Bench had ordered that if the learned counsel wishes to seek interim order he may apply afresh during vacation. Learned counsel further stated that he has filed an application for getting a fresh order and that application still pending but no stay order has been granted so far. Lastly learned counsel submitted that after the issues had been framed, the matter should have been decided on merits. He relied the case of Tabassam Nazir v. The District Judge, Faisalabad, reported in 2000 S.C.M.R. 1279 and the case of Q.B.E. Insurance (International) Ltd. v. Jaffar Flour and Oil Mills Ltd., reported in 2008 S.C.M.R. 1037.
4. Mr. David Lawrence learned Deputy Prosecutor General submitted that in the plaint of the suit itself nowhere it is available that the petitioner has any title to the property. It is only the subordinate functionary which had recommendea that lease be granted to the petitioner. Learned D.P.G. Submitted that such recommendation does not confer any right and therefore the plaintiff had no case within contemplation of Section 42 of the Specific Relief Act. Learned Deputy Prosecutor General relied upon the case of Province of Punjab, through Collector, Bahawalpur v.
Anwar All and 315 others, reported in 2000 CLC page 1363. He submitted that it may be merely wastage of time if the matter is sent back to the Trial Court for recording evidence and thereafter decision in accordance with law.
5. Learned counsel for Pakistan Railways supported arguments of Mr. David Lawrence and has supported the impugned judgment.
6. I have considered submission made by the learned counsels and have gone through the record.
Order VII, Rule 1, C.P.C. Is in the following case:--- 7 . Rejection of plaint.-- The plaint shall be rejected in the following cases:---
(a) where it does not disclose a cause of action;
(b) where the relief claimed is under-valued, and the plaintiff, on being required by the court to correct the valuation within a time to be fixed by the Court, fails to do so;
(c) where the relief claimed is under-valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be'fixed by the Court, fails to do so;
(d) where the suit appears from the statement in the plaint to be barred by law.
8. For sake of reference, one may refer to Order XV, Rule 3, Section 115. C.P.C. Which are in the following words:---
3. Parties at issue.-- (1) Where the parties are at issue on some question of law or of fact, and issues have been framed by the Court as hereinbefore provided, if the Court is satisfied that no further argument or evidence than the parties can, at once adduce is required upon such of the issues as may be sufficient for the decision of the suit, and that no injustice will result from proceeding with the suit forthwith, the Court may proceed to determine such issues, and, if the finding thereon is sufficient for the decision, may pronounce judgment accordingly, whether the summons has been issued for the settlement of issues only or for the final disposal of the suit:---
115. Revision.-- (1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears:---
(a) to have exercised a jurisdiction not vested in it by law, or
(b) to have failed to exercise a jurisdiction so vested, or
(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity. the High Court may make such order in the case as it think fit.
9. The only provision in Rule 11 of Order VII which can be stretched to this case is clause-d which states that where the suit is "Barred by Law". Now the applicant may have or may not have a right but the fact that he has claimed a right. In the ultimate analysis the Court may come to the conclusion that it is not available to him, but it would not be a ground sufficient for holding that the suit is barred by law. In such a situation what would be attracted in Order XV, Rule 3, C.P.C. Where the Court after having framed the issues comes to the conclusion that a certain issues of fact or law can be decided without recording evidence and thereafter dispose of the suit on the basis of decision on such issues. Therefore, in my opinion, strictly speaking, the mere fact that the applicant did not have any title to the property can be a ground for dismissing the suit under Order XV, Rule 3, but cannot be ground for rejecting the plaint u/O. VII, Rule 11, C.P.C.
10. However, it is clearly stated in the plaint that the Plaintiff did not have any title to the property. He was claiming lease on the basis of recommendation by the Departmental authorities. All of this aspect has been given due consideration by the two Courts below and there does not appear to be any inconsistency or wrong consideration by them. Section 115, C.P.C.. Is attracted when the Court has acted, inter alia "with material irregularity". From the point of view material irregularity there does not appear to be any in the orders of two Courts below and the reliance placed by Mr. David Lawrence on Anwar Al.s case fully supports his contention. Revisional jurisdiction is discretionary in nature. When substantial justice has been done , revisional jurisdiction may not be invoked for hyper-technical reasons.
11. Learned counsel contended that stay application even if stay was granted by the Trial Court or by the Appellate Court or by this Court and even if it was subsisting today it could not have been a ground for not proceedings and deciding the /is before the two Courts below.
12. Result of the above discussion is that this revisional application is dismissed. .