' AZIZ-UR-REHMAN, J.---Muhammad Yameen as a sole petitioner through the instant petition under Article 199 of the Constitution of Islamic Republic of Pakistan 1973 has called in question the impugned order dated 26-3-2011 passed by 5th Additional District Judge, Hyderabad Sindh, whereby Civil Revision Application No,105 of 2010 against the order dated 18-9-2010 passed in F.C.
Suit No, 124 of 2009, on an application under Order VII Rule 11, C.P.C., filed by the petitioner/defendant No,5 was upheld by 5th: Senior Civil Judge, Hyderabad. The prayer made is for the following declarations:--
(a) It be declared that order dated 18-9-2010 passed by respondent No,4 on application under Order VII Rule 11, C. P.C. In F. C. Suit No,124 of 2009 and maintained by order dated 26-3-2011 passed in R.A. No,105 of 2010 by respondent No,5 as illegal and exercise the jurisdiction illegally and acted without lawful authority and may be declared no legal affect and may be set aside.
(b) That the petitioner pray to allow the application under Order VII Rule 11, C.P. C. And reject plaint of F. C. Suit No,124 of 2009 pending in the Court of respondent No,4 and set aside order dated 26- 3-2011 of the respondent No,4 passed in R.A. No,105 of 2010 and dismissed Revision by allowing petition.
(c) That the cost of the petitioner may be borne by the respondent No,1.
(d) Any other relief justice deemed fit and proper may be granted.
2. The relevant facts and events leading to the filing of the above constitution petition and dismissal thereof by short order dated 15-11-2012 are briefly stated as below:
3. The respondent No,1/plaintiff had filed Suit No,76 of 2009 for declaration, cancellation of sale deed and permanent injunction (Pervez Rajput v. Abdul Ghaffar and 6 others) with the following prayers:--
(a) This Hon'ble Court may be pleased to declare that plaintiff is entitle for preferential right of purchase of joint share of defendants Nos.1 to 4 in agricultural land of survey No,261, deh Punh wary, Tapo Husri, Taluka and District Hyderabad and they are bound to sale the same to plaintiff.
(b) It may be declared that the sale of their share in agricultural land in question by the defendants Nos.1 to 4 to defendant No 5, is illegal and sale executed in his favour in respect of their share is void and may be cancelled.
(c) To restrain the defendant No,7 to take any action for measurement and issuing further notice Form XXXII-B Role 67-A(4)(C) till disposal of this suit.
(d) That the defendants Nos.1 to 4 may be directed to execute sale deed in respect of their share in survey No,261 deh Punh wary Tapo Husri, Taluka and District Hyderabad after receiving the sale consideration amount the same as agreed/received from defendant No,5 or as fixed by this honourable Court.
(e) The cost of suit may be imposed upon the defendants.
' Any other relief as deemed fit and proper in the circumstances of the case may also be granted to the plaintiff.
4. During pendency of the aforesaid suit bearing No,76 of 2009 an application for withdrawal of the suit under Order XXIII, Rule 1 C.P.C. Was filed by respondent No,1/plaintiff. Being relevant the prayer made therein is reproduced as under:-- "I on behalf of the above plaintiff that I hereby withdraw the above suit. It is further requested that this honorable Court may kindly be (sic) granted permission to file a fresh suit.
' The above prayer is made in the interest of justice"
5. On 5-11-2009 the order passed thereon reads as under:- "In view of the above statement the suit of the plaintiff stands dismissed as withdrawn."
6. Pursuant to the withdrawal of the above suit, Pervez Rajput/ respondent No,1 herein filed Suit No,124 of 2009 in the Court of 5th Senior Civil Judge, Hyderabad, amongst others against the present petitioner viz: Muhammad Yameen in whose favour the other co-owners/ defendants Nos.1 to 4 (except respondent No,1/Pervez Rajput) had executed sale deed dated 11-8-2008 registered on 29-8-2008 in respect of their shares in jointly owned immoveable property i,e, agricultural land bearing S.No,261 admeasuring 7-31 acres situated in deh Punh wary, Taluka and District Hyderabad.
For convenience and ready reference the prayer made in the second suit is reproduced as under:- -
(a) To pass decree for pre-emption in favour of plaintiff.
(b) To grant permanent injunction against the defendants restraining them from selling, mortgaging, transferring the suit land themselves, their agents, servants, legal heirs, successors, subordinates, assignees, attorney or through any agency in any manner whatsoever nature.,
(c) Cost of the suit be saddled upon the defendants.
(d) Any other relief which this Honourable court deems fit and proper may please be awarded to the plaintiff.
7. Upon service, the petitioner/defendant No, 5 as purchaser of 35-60 ghuntas out of S.No,261 admeasuring 7-31 acres deh Punhwary from other four co-owners/ sellers viz. Abdul Ghaffar, Zulfiqar, Muhammad Hanif and Mst. Jamila/defendants Nos.1 to 4 jointly filed a written statement in the above suit bearing No,124 of 2009. It is worth to note that the petitioner/defendant No 5 in his own wisdom has not made the aforesaid defendants Nos.1 to 4 as party to the instant petition.
8. Apart from filing of the written statement, they also filed an application under Order VII Rule 11, C.P.C., with the prayer that "this honourable Court may be pleased to reject the plaint of the plaintiff as the same is barred under Order XXIII Rule 1(3), C. P. C. And the plaint does not disclose any cause of action against the defendants Nos.1 to 5, who are capable under law to sell and purchase the property inter se on consideration of the facts and grounds disclosed in the accompanying affidavit".
9. In response to the above application under Order VII Rule 11 C.P.C., a detailed counter affidavit on behalf of the respondent No,1/plaintiff was also filed, wherein it was categorically stated, that the nature of the aforesaid Suit No,124 of 2009 is quite different from the nature of the earlier Suit No,76 of 2009 and that the provision of Order XXIII, Rule 1(3), C.P.C., is not applicable to the case in hand. It was further asserted therein that Suit No,76 of 2009, filed by the respondent No,1/plaintiff against the petitioner and others for declaration, cancellation of sale deed and permanent injunction is not barred as alleged under Order XXIII, Rule 1(3), C.P.C.
10. The learned trial Court after hearing the parties, dismissed the aforesaid application under Order VII Rule 11, C.P.C. Vide order dated 18-9-2010 holding that earlier suit being No,76/2009 filed by respondent No,1/plaintiff for declaration, cancellation of sale deed and permanent injunction in respect of sale of jointly owned property and withdrawal thereof does not amount to relinquishing or abandoning of any part of the claim. It was further observed that the cause(s) of action in both the suits was/were different and the Suit No,124 of 2009 as filed by the respondent No, l/plaintiff was thus not barred under Rule 23 Rule 1(3) C.P.C.
11. Against the aforesaid order dated 18-9-2010 the petitioner/defendant No,5 and others filed a Civil Revision No,105 of 2010 (Muhammad Yameen and 4 others v. Pervez Rajput and 2 others) before the District Judge, Hyderabad, who transferred the same to the Court of Vth Additional District Judge, Hyderabad Sindh.
12. Upon hearing the arguments, the aforesaid Civil Revision bearing No,105 of 2010 was dismissed vide order dated 26-3-2011 by holding that for the purpose of rejection of plaint under the Provision of Order VII, Rule 11 C.P.C., only the averments in the plaint are to be treated as true and correct and nothing else.
13. Aggrieved by the aforesaid concurrent findings, the instant petition under Article 199 of the, Constitution of Islamic Republic of Pakistan 1973 has been filed only by one of the defendants viz: Muhammad Yameen.
14. Mr. Eijaz Ali Hakro, learned counsel for the petitioner while arguing the present petition contended that both the learned lower courts have failed to appreciate that the respondent No, 1/plaintiff claiming preferential right of purchase i,e, 35-60 ghuntas out of S.No,261 admeasuring 7- 31, deh Punh wary, Taluka and District Hyderabad had omitted to include the relief of pre-emption in his earlier Suit bearing Suit No,76 of 2009. Per learned counsel, such omission on the part of respondent No,1, operates a relinquishment of such claim. It is further contended by the learned counsel for the petitioner that respondent No,1/plaintiff under law was obliged to include all relief(s) flowing out of main grievance. Per learned counsel for the petitioner, both the lower courts have erred in law by not appreciating that the 'cause of action' in both the suits were interconnected.
Non claiming the relief of preemption, per learned counsel for the petitioner, is hit by Order II Rule 2, C.P.C. It is further contended by Mr. Eijaz Ali Hakro, the learned counsel for the petitioner, that both the Courts below have exercised the jurisdiction illegally while dismissing the application under Order VII Rule 11, C.P.C. Under law, per learned counsel for the petitioner, splitting up of cause of action is not permitted. It is further contended by the learned counsel for the petitioner that Order dated 5-11-2009, whereby Suit No,76 of 2009, was dismissed as withdrawn does not amount to permission for bringing the fresh suit by respondent No, 1/plaintiff. Per learned counsel, Suit No 124 of 2009 filed by the respondent No, 1/plaintiff is barred under Order XXIII Rule 1(3), C:P.C. He further contended that since the Suit No, 124 of 2009 filed on 5-12-2009 for pre-emption and permanent injunction is beyond the period of one year as provided under Article 10 of the Limitation Act, 1908 as such the same is time barred. In support of his contention Mr. Eijaz Ali Hakro, learned counsel for the petitioner placed reliance on NATIONAL BANK OF PAKISTAN v. HASHIM KHAN (1995 CLC 88), MUHAMMAD YOUSIF MEMON v. KARACHI STOCK EXCHANGE (1995 CLC 183), HAKIM MUHAMMAD BUTA v.
HABIB AHMED (PLD 1985 SC 153), MUHAMMAD SAEED BACHA v. BADSHAH AMIR (2011 SCM R 345) and RAHIM DAD v. ABDUL KAREEM (1992 M LD 2111).
15. In contra, Mr. Muhammad Umar Daudi, learned counsel for the respondent No,1, forcefully contended that the provision of Order II, Rule 2, C.P.C. Is not applicable to the facts and circumstances of the case. Per learned counsel, Suit No,124 of 2009, is quite maintainable in law and has been filed with permission of the Court. Per learned counsel, order dated 5-11-2009 passed by the Vth Senior Civil Judge, Hyderabad, whereby Suit No,76 of 2009 was dismissed as withdrawn is to be read and seen juxtaposition of the ccntents of the application for withdrawal with permission to file a fresh suit. Mr. Muhammad Umar Daudi, learned counsel for the respondent No,1, vehemently urged, that the application under Order VII" Rule 11, C.P.C., filed by the petitioner/defendant No,5 is/was rightly dismissed by the Vth Senior Civil Judge, Hyderabad dated 18-9-2010. Besides, per learned counsel, the Civil Revision Application No,105 of 2010, was also rightly dismissed by the Vth Additional District Judge, Hyderabad. Mr. Muhammad Umar Daudi, learned counsel for the respondent No,1, next contended that though there was a prayer for cancellation of the registered sale deed in the earlier Suit No,76 of 2009 executed by the co-owners (except respondent No,1/plaintiff) however, the second suit filed by the respondent No, 1/plaintiff is competent in law. Per learned counsel, the cause of action in the second Suit No,124 of 2009, is quite distinct and/or absolutely different from the cause of action in the former Suit bearing No,76 of 2009. Per learned counsel for the respondent No,1, the question of limitation in view of joint ownership and/or continuing cause of action in favour of respondent No, 1/plaintiff does not arise as far as the second Suit No,124 of 2009 is concerned. Further, learned counsel for respondent No,1/plaintiff contended that limitation being a mixed question of facts in law, cannot be determined indeed, without leading evidence. It is next argued that issues have already been framed in the aforesaid suit by the trial Court and Suit No,124 of 2009 is swiftly in progress towards decision on merits. In view of such position, learned counsel empathically argued, that the petition as framed [without joining other defendants as parties] and filed, merits no consideration and is liable to be dismissed. In support of his contention he placed reliance on RAFIQUE AHMED v. Mst.
TAFSEELA (1992 CLC 1401) and ABDUL HAKIM v. SADDAULLAH KHAN (PLD 1970 SC 63).
16. Mr. Allah Bachayo Soomro, Additional A.G. Submitted that cases needs to be decided on merits and technical knockout are not permissible under law. Particularly, when there are allegations and denial interne the parties to the suit. In such eventuality, the learned Addl. A.G. Submitted, the respective contentions of the parties then can only be decided by the Court after recording of evidence in support of issues already framed by the trial Court as far as the present controversy between the parties is concerned. Be, that as it may, per learned Addl. A.G. The suit ought to be decided on merits.
17. We have heard the learned counsel for the petitioner, learned counsel for the respondent No,1 and learned Addl. A.G. Sindh and have perused/examined the record with their able assistance and considered the case-laws relied upon by them.
18. As far as the contentions of the learned counsel for the petitioner is concerned, the contents of the plaint in Suit No,76 of 2009 and the prayer sought therein evidently show that the earlier suit filed by the respondent No,1/plaintiff was for declaration, cancellation of sale deed (executed by other 4 co-owners except respondent No, 1/plaintiff in favour of the petitioner/defendant No,5) and permanent injunction regarding subject property. But manifestly it was based on different/distinct cause of action. It is worth to note the cause of action refers to averments or allegations levelled by one party and denied by the other party to the suit and significantly requires evidence. Indeed, respondent No,1/plaintiff, had withdrawn the earlier suit, but with the permission for filing of a fresh suit and that too without relinquishing or abandoning any part of the claim. Apart from this, right of pre-emption C being a right under Muhammadan Law cannot be said as waived/ relinquished and/or barred under Order II Rule 2 C.P.C., particularly in circumstances of the present case.
19. Besides, under law, permission to file a fresh suit needs not to be express but could be gathered/implied from the circumstances in which such order for withdrawal of the suit having been passed. In cases where court does not wish to permit permission then Court has to dismiss the application for withdrawal and direct plaintiff to proceed with the case. In the case in hand, if the contents of the application are seen in juxtaposition of order dated 5-11-2009 then it would be clear that dismissal of suit as withdrawn is coupled with permission for filing of afresh suit by respondent No,1/plaintiff.
20. As far as the question of limitation regarding filing of the Suit No,124 of 2009 is concerned, it is suffice to observe that under circumstances of the case, the question of limitation ex-facie seems to be mixed question of facts and law, which in our view requires proofs through production of evidence in pro and contra.
21. The case-law cited by the learned counsel for the petitioner/ defendant No,5 are distinguishable and has no bearing as far as the facts and circumstances of the present case are concerned.
None of the case law cited at the bar pertains to cover and/or deal with a situation where a jointly owned immoveable property has been sold by some of the co-owners to a stranger at the back of other co-owners) as has been done in the present case. In a case of joint ownership and joint possession, we are of the considered view that no right of the co- owner/co-sharers can be extinguished by lapse of time etc. In case of co sharers/co-owner and/or joint possession holders no limitation or law of estoppels operates as cause of action remains continuing.
22. Being relevant, it is worth to mention herein, that after incorporation of Article 10-A in the Constitution of Islamic Republic of Pakistan, 1973, now the situation has been significantly changed.
The said Article mandates that civil rights and obligations are required to be determined/adjudicated through a due process of law. In order to fully appreciate Article 10-A of Constitution of Islamic Republic of Pakistan, 1973 it would be worthwhile to reproduce the same herein:-- "10-A, Right to fair trial---For the determination of his civil rights and obligations or in any criminal charge against him a person shall be entitled to a fair trial and due process."
23. Further, in the case of SHABIR AHMED v. KIRAN KHURSHEED and others (2012 CLC 1236), it was observed on page-1252 as under:- "Article 10-A, morphs(sic) Article 4 into a more robust fundamental right, covering both substantive and procedural due process. While substantive due process provides a check on legislation and ensures the protection of freedoms guaranteed to a person under the Constitution, procedural due process, which concerns me here, provides that "each person shall be accorded certain "process" if they are deprived of life, liberty or property---The question then focuses on the nature of the "process" that is "due". The government always has the obligation of providing a neutral decision maker one who is not inherently biased against the individual or who has personal interest in the outcome". Due process is now available to every person as a fundamental right and underscores procedural fairness and propriety in determining his civil or criminal rights. The procedure adopted in determining the rights of the parties must at every step pass the test of fairness and procedural propriety and at all times must honour the law and the settled legal principles. Article 10-A is not limited to a judicial trial in its strict sense but requires fairness from any forum which determines the rights of a person."
24. In the case of BABAR HUSSAIN SHAH v. MUJEEB AHMED KHAN and another (2012 SCM R 1235) on page 1241 it was observed as under:- "Although from the very inception the concept of fair trial and due process has always been the golden principles of administration of justice, but after incorporation of Article 10-A in the Constitution of the Islamic Republic of Pakistan, 1973 vide 18th Amendment, it has become more important that' due process should be adopted for conducting a fair trial and order passed in violation of due process may be considered to be void. In a very old judgment of this Court reported as Collector, Sahiwal and 2 others v. Muhammad Akhtar (1971 SCMR 681), this Court went on to hold as under:-- "This Court has gone to the extent of pointing out that the mere absence of a provision in a statute as to notice cannot override the principle of natural justice than an order affecting the rights of a party cannot be passed without an opportunity of hearing and also held that where the giving of a notice is a necessary condition for the proper exercise of jurisdiction then failure to comply with this requirement renders the order void and the entire proceedings which follow also become illegal."
' As far as due process is concerned, this Court in the case of "New Jubilee Insurance Company Limited, Karachi v. National Bank of Pakistan, Karachi (PLD 1999 SC 1126)", while summarizing the term due process of law relied on the judgment of this court in the case of "Aftab Shahban Mirani v. President of Pakistan (1998 SCMR 1863)", wherein this Court held as under: "(1) A person shall have notice of proceedings which affect his rights.
(2) He shall be given reasonable opportunity to defend.
(3) That the Tribunal or Court before which his rights are adjudicated is so constituted as to give reasonable assurance of his honesty and impartiality, and
(4) That it is a Court of competent jurisdiction. Above are the Basic requirements of the doctrine "due process of law" which is enshrined, inter alia, in Article 4 of the Constitution. It is intrinsically linked with the right to have access to justice which is fundamental right. This right, inter alia, includes the right to have a fair and proper trial and a right to have an impartial Court or Tribunal.
A person cannot be said to have been given a fair and proper trial unless he is provided a reasonable opportunity to defend the allegation made against him."
' We may at this stage also refer to another judgment of this Court in the case of "Mehmood and another v. Chief Administrator Auquaf, Punjab, Lahore and others (1996 SCMR 1508)", wherein this Court held as under:- "We have heard the learned counsel for the parties. We have also perused the Vakalatnama which was filed by Hakim Muhammad Sardar Khan, Advocate, on behalf of the appellants, which indicates that it was expressly stated that he would appear in the above appeal only at Rawalpindi. In view of the above factual position, it was incumbent on the office of the High Court to have issued notice to the appellants in person for the above date of hearing instead of sending a postcard to Hakim Muhammad Sardar Khan, Advocate. We are, therefore, of the view that le learned Judge in Chambers should have allowed the above restoration application though it was filed after the expiry of limitation period for obvious reason that the appellants had no knowledge about the dismissal of the appeal."
25. In view of above and after having heard the learned counsel for the petitioner and respondents and after having given due consideration to the facts and relevant laws and perusal of the impugned orders and record available before us by "a short order dated 15-11-2012", the above constitution petition along with pending applications being found without any substance was dismissed. The above are our reasons for passing of the short order on 15-11-2012.
26. Before concluding, it would be appropriate to note that the observations hereinabove are tentative in nature and are not meant to effect or prejudice the trial of the suit, which will ultimately be decided, of course, strictly on its own merits and evidence adduced by the parties in support of the issues already settled in Suit No,124 of 2009. And as stated by the learned counsel for the parties the case before the trial Court is swiftly in progress towards a decision on merits.