MAZHAR ALAM KHAN MIANKHEL, J.---The petitioners through instant writ petition have questioned the judgment and decree dated 3-7-2010 of the District Judge/Zilla Qazi, Malakand at Batkhella, respondent No.3, whereby appeal of the respondent against the judgment/order dated 27-4-2010 of Civil Judge/Illaqa Qazi-II, Malakand at Batkhella, was allowed.
2. Respondent No.1 filed suit for declaration against the present petitioner, by claiming certain landed properties, fully described in his plaint, to be his ownership. Claim of plaintiff/respondent was denied by defendant-petitioners. The plaintiff/respondent, during the trial produced his evidence. The case was fixed for evidence of defendant/petitioners, when they filed application dated 3-2-2010, under Rule 11 of Order VII of C.P.C. For rejection of plaint, being barred by section 11 of C.P.C. That application was allowed by Civil Judge/Illaqa Qazi, vide his judgment/order dated 27-4-2010. The plaintiff/ respondent assailed the same before District Judge/Zilla Qazi, Batkhella, through an appeal which was allowed by his judgment/decree dated 3-7-2010, and the findings of trial Court were set-aside and the parties were directed to appear before the learned trial Court.
The petitioners, feeling aggrieved, has filed the instant writ petition.
3. Learned counsel for the petitioners contended that findings of appellate Court, whereby case was remanded back to the trial Court, are against Para-10 (8) of Shariah Nizam-e-Adl Regulation 2009, so, the same is the result of unlawful exercise of jurisdiction; that the instant suit of the plaintiff/respondent was barred by section 11 of C.P.C, as the parties had litigated earlier regarding the same subject matter and this very fact is established from the certified copies of the decision of earlier litigation. He submitted that in such like situation, there was no need to record further evidence and the plaint in suit filed by the plaintiff/respondent was required to be rejected, being barred by law.
4. As against that, the learned counsel for the plaintiff/respondent, while refuting the arguments of learned counsel for petitioners, contended that issues in the case were framed and evidence of plaintiff was recorded and the defendant-petitioners, instead of producing their evidence, filed the application which, in the circumstances, was not legally maintainable and was rightly dismissed by the appellate Court. He further contended that the certified copies of previous litigation itself would require, evidence just to establish that both the properties in the two litigation were same; that the matter which required further evidence, cannot be decided by invoking the provision of Rule-11 of Order VII of C.P.C. He further contended that the impugned order, in no way, can be said to be a remand order. Lastly, he questioned the very maintainability of writ petition, as against rejection of plaint appeal was rightly filed. So, decision of appellate Court could have legally been assailed through revision petition instead of writ petition. Therefore, this writ petition is liable to dismissal only on this score.
5. Learned counsel for the parties were heard and available record of the case was gone through with their assistance.
6. Record of the case would reveal that the trial Court has framed issues from the divergent pleadings of the parties and the parties were asked to produce pro and contra evidence in support of their respective claims.' The plaintiff/respondent concluded his evidence and the defendant/petitioners, instead of producing their evidence, have opted to move the trial Court for rejection of plaint. Though there is no legal impediment/clog in their way and such application can be moved at any stage of the proceedings but only when the record itself makes the case of a plaintiff to be hit by any of the clause embodied in Rule 11, of Order VII of C.P.C, and it does not require any further evidence to establish the same. When the matters/facts, alleged/denied in the plaint, would require evidence to prove the same, then, we are afraid, the recourse to the provisions of Rule 11, ibid, cannot be held to have support of settled law of the land. Settled course in the circumstances, would be nothing less than a full-fledged trial.
7. While reverting back to the facts and circumstances of the case in hand, if at all, it is presumed that the case of plaintiff/respondent is barred by the principle of res judicata, even then the matter would require recording of evidence to establish the same only because of nature of property, which is bereft of recognition through revenue record. The evidence alone would establish the fact that the subject matter of the two suits between the parties was the same. When this being the situation, we see no illegality or unlawful exercise of jurisdiction by the appellate Court which, in the circumstances, cannot be interfered with.
8. As far as question of remand, as alleged by the learned counsel for the petitioner, is concerned, that in the circumstances, cannot be held as an order of remand in legal parlance, as appeal against rejection of plaint was allowed by setting aside order of rejection of plaint, then the only option with the appellate Court was to ask for conclusion of the trial which was pending before the trial Court, so, the said objection, in our view, has no force at all.
9. Then comes the maintainability of the writ petition, which is a legal objection, because the decision of appellate court can be assailed through revision petition and writ petition against the same is not maintainable. This Court has oftenly converted such petitions into the one permissible under the law, but at this stage if writ petition is converted to a revision petition, even then it would not serve the purpose of the petitioner. Hence, being meritless, this petition is dismissed as such.