' NISAR MUHAMMAD SHAIKH, J.---This Civil Revision Application is directed against the order dated 16-11-2009 passed by the learned IInd Additional District Judge, Karachi West, in Civil Appeal No,56 of 2009 whereby he dismissed the Civil Appeal filed by the applicant against the order dated 19-5- 2009 through which the plaint of her Suit No,66 of 2005 was rejected by learned Senior Civil Judge, under Order VII Rule 11, C.P.C. On the ground that the suit is barred under section 172 of the Land Revenue Act.
2. I have heard the learned counsel for the parties and perused relevant record which shows that the property in question owned by deceased Yousuf Gabol, was allegedly gifted by him to his four sons and one nephew vide revenue Entry No,150 dated 28-2-1973 and thereafter, this Yousuf. Gabol died on 31-1-1994. Since the daughters of deceased were allegedly deprived of their due share therefore one of them namely Mst. Shah Bibi filed the Suit No,66 of 2005 before the learned Senior Civil Judge, Karachi West, on 15-1-2005 for declaration and permanent injunction, with the following prayers:--
(a) This honourable Court be pleased to declare that plaintiff is daughter of late Yousif and entitled to the mutation entry to the extent of 07 paisa share out of landed property shown in para No,1 supra.
(b) This honourable Court be pleased to declare that Entry No,150 dated 28-2-1973 V.F VII, Deh Allah Pahai is invalid, unlawful, illegal, void and of no legal effect or force.
(c) Issue perpetual injunction restraining the defendants from alienating the suit land or creating third party interest or interfering into negotiations with the parties adverse to the rights to that of plaintiff directly or indirectly.
3. Initially, the application filed by the defendants for rejection of the plaint of such suit on the grounds that it is barred by law etc. Was dismissed. By the trial Court/Senior Civil Judge vide his order dated 4-4-2005 and the Civil Revision No,10 of 2005 filed by the defendants against the said order was also dismissed by the learned lInd A.D.J, on 12-7-2005. Subsequently, the Constitutional Petition No,D-1033 of 2005 filed by the defendants was also dismissed by a Division Bench of this Court vide order dated 14-9-2005, the concluding para of which is reproduced below:-- "We have examined the orders of the Courts below and do not see any illegality or error on the face of it. No prejudice appears to be caused if the suit is tried on merits as to the legal status of the respondents. Therefore, the appeal is dismissed in limine along with the listed applications. The trial Court is directed to dispose of the case as early as possible."
4. It appears that the trial Court then recorded the evidence of both the parties and after hearing the parties; decreed the Suit No,66 of 2005 as prayed for, vide judgment and decree dated 11-12- 2006. Such judgment and decree were challenged by the defendants by filing Civil Appeal No,82 of 2006 which was disposed of by the learned District Judge, Karachi-West, vide his order dated 11-8- 2008, the concluding para of which is as under:-- "Under these circumstances; the impugned judgment and decree are not sustainable in law and the case needs to be remanded back to the learned trial Court for deciding the same, afresh, after joining the necessary/proper parties as pinpointed above; after recording the evidence of the government officials from the revenue authorities concerned; and after verifying the position of the record and other evidence, if any, the parties still require to lead, if the same had existed but not produced at the relevant time, in the interest of justice. The learned trial Court is directed to decide the case within next 2 months, under intimation to. This Court, without fail. The appeal is disposed of, accordingly. There is no order as to costs."
5. Thereafter, as appears from the first impugned order dated 19-572009; the plaint was rejected by the learned trial Court when the matter was fixed on 19-5-2009 for filing objections on the application under Order XIII, Rule 1, C.P.C. For which the learned counsel for the plaintiff/ applicant sought time but on account of the contention raised at that time by learned counsel for the defendants that the suit is. Not maintainable under section 172 of the Land Revenue Act, the learned trial Court went to examine such point on hearing the learned counsel for the defendants only, and rejected the plaint under Order VII Rule 11, C.P.C. On the same day i.e, 19-5-2009 holding that the suit is barred under section 172 of the Land Revenue Act. The Civil Appeal No,56 of 2009 filed by the present applicant/ plaintiff against such order of the learned trial Court, was also dismissed by the learned IInd A.D.J, Karachi West, vide second impugned order dated 16-11-2009.
6. It further appears from record that the issues framed by the learned trial Court, also included the issues on legal points, but surprisingly, the learned trial Court adopted a very shortcut procedure to the extent that all of a sudden the plaint was rejected without any notice to the plaintiff or her advocate when the matter was also not fixed for such hearing and even no such application was filed or pending before the learned trial Court for its disposal.
7. The learned counsel for thedefendants/respondents submits that it was purely a legal point relating .To the jurisdiction of the Civil Court, therefore the trial Court could decide this point at any stage of the case. No doubt the question of jurisdiction could be raised by the defendants but the same could not be dealt with in the manner as it was conducted by the trial Court. Even otherwise, the legal issues were already framed by the learned trial Court which may be the mixed question of law and facts, however such issues including the point in question, were yet to be examined by the trial Court on the basis of the material on record including the evidence recorded or to be recorded by it, in compliance of the order dated 11-8-2008 (reproduced above) of the learned District Judge as well as the earlier order dated A 14-9-2005 (reproduoed above) passed by a Division Bench of this Court, under which the legal status of the plaintiff was required to be determined, apparently in the light of the prayer clause (a) of the very plaint, which could not be brushed aside in the manner as was done by the trial Court, whose order whereby the plaint was rejected, is therefore not sustainable in law and since such order was wrongly maintained by learned Ilnd ADJ instead of discouraging the same, therefore the order of the Appellate Court also, is liable to be set aside.
8. In the circumstances, the impugned orders dated 19-5-2009 and 16-11-2009 passed by the trial Court and the Appellate Court respectively, are hereby set aside, with direction to the learned trial Court to consider the legal point in question together with other legal points/issues while deciding the case on merits, in accordance with law.
9. Accordingly, this Civil Revision is allowed, however, with no order as to the cost.