AMIN-UD-DIN KHAN, J.---Through this writ petition order dated 19-4-2012, passed by the revisional Court whereby the revision petition filed by the defendants/respondents was accepted and the plaint filed by the petitioner was rejected by accepting application filed under Order VII Rule 11 of the C.P.C. And order of the trial Court dated 10-4-2008, dismissing the application, was set aside.
Though this writ petition is not formally admitted to regular hearing but in view of the fact that in response to pre-admission notice the respondents have tendered appearance and both the parties have been heard in full length, it is being treated as a 'pacca' matter.
2. Brief facts of the case are that the petitioner/plaintiff filed a suit for declaration stating therein that he is owner in possession of the suit land measuring 554 kanals 17 marlas, gifted in his favour by Mutation No,127, dated 23-7-1990, challenged the order dated 24-7-2003, passed by the Member Board of Revenue, on the ground that it is against the law and facts as having been passed exercising jurisdiction illegally and by violating the law on the subject. Attestation of Mutation No,1265, dated 26-10-2000 was also sought to be declared as illegal and ineffective upon the rights of the plaintiff. The defendants filed written statement and also moved an application under Order VII, Rule 11 of the C.P.C. Stating therein that the petitioner challenged the order of the Member Board of Revenue dated 24-7-2003 in Writ Petition No,14051 of 2003 before this Court which was dismissed on 11-2-2004. Even other objections were raised in the application but in my view, for the determination of the point in issue those objections are not relevant in this matter. Against the dismissal of the writ petition, the petitioner moved C.P.L.A. No,1139-L of 2004, which was withdrawn on 9-3-2007. Previous to the filing of the suit in hand suit for permanent injunction was filed against the defendants, which was also withdrawn on 5-12-2003.
3. There are two points to be considered now. One is that the first suit was filed on 6-9-2003 when the order of the Member Board of Revenue was already in field. The order of the MBR was not challenged in this suit. Though it is a suit for permanent injunction but in the prayer clause the ownership of the defendants has not been denied. The only prayer is that without the partition defendants be restrained from alienating the specific portion of the suit property measuring 554 kanals 17 marlas. The second suit for declaration was filed on 19-3-2007 whereas Writ Petition No,14051 of 2003 was filed in the year 2003 and it was dismissed on 11-2-2004. This order was assailed before the August Supreme Court of Pakistan and vide order dated 9-3-2007 the petition for leave to appeal was withdrawn. It seems that after the withdrawal of the petition for leave to appeal from the august Supreme Court of Pakistan the suit in hand was filed. There are two points, one the competency of the suit in hand is under challenge under Order II Rule 2 of the C.P.C., and further under Order XXIII Rule 1(3) of the C . P. C .
4. Learned counsel for the petitioner states that as the previous suit was only for permanent injunction, therefore, it was not a hurdle in filing the present suit. He further states that the learned trial court has rightly dismissed the application under Order VII Rule 11 of the C.P.C. And the revisional court without any justifiable and reasonable ground has set aside the order passed by the learned trial Court. He submits that as the order has not been passed on merits, therefore, the suit is not barred in accordance with section 11 of the C.P.C. Further submits that in both the suits the relief claimed is not the same, therefore, the order of the revisional court is not sustainable under the law.
5. On the other hand, learned counsel for the respondents submits that when the previous suit was filed after the decision of the MBR which was not challenged and in the prayer clause ownership of the defendants/respondents was not denied, therefore, the second suit was not competent in the light of Order II Rule 2 of the C.P.C. He further submits that the writ petition was filed before this Court, which was ultimately dismissed and admittedly the order of the MBR was not challenged and that order of this Court dated 11-2-2004, passed in Writ Petition No,14051 of 2003 attained finality when C.P.L.A. No,1139-L of 2004, was withdrawn on 9-3-2007 from the august Supreme Court of Pakistan and after that this suit was filed which was absolutely not competent and before the learned trial Court application under Order VII Rule 11 of the C.P.C. Was moved, which was wrongly dismissed by the learned trial Court and the learned revisional court has rightly exercises powers vested in it and has accepted the application and there is no defect in the judgment of the learned revisional court.
6. I have heard the learned counsel for the parties at full length and have also gone through the record.
7. I have noticed that the suit for permanent injunction was filed with regard to the suit property against the defendants who are also the legal heirs of the predecessor of the plaintiff/petitioner and in the prayer clause only it was prayed that the defendants be restrained from alienating the specific portion of the suit property as they claimed joint ownership in the suit property. That suit was withdrawn without any permission from the Court to file afresh. Then writ petition was filed wherein the order passed by the MBR whereby mutation of gift sanctioned in favour of the plaintiff with regard to suit property was set aside. This order was in field even prior to the filing of the first suit. The writ petition was dismissed by this Court on the ground that even the suit filed by the petitioner is pending before the civil court. Dismissal of Writ Petition No,14051 of 2003 on 11-2-2004 was challenged before the august Supreme Court of Pakistan through C.P.L.A. No,1131-L of 2004, which was ultimately withdrawn on 9-3-2007 by the learned counsel on re-consideration.
Therefore, it is clear that after the dismissal of the first suit the hurdle of Order II Rule 2 of the C.P.C.
Was standing in the way of the petitioner/plaintiff. Then he opted to file writ petition before this Court and in the writ petition he challenged the order of the MBR dated 24-7-2003 and in the suit in hand also order dated 24-7-2003 was under challenge before the learned trial court, therefore, Order XXIII Rule 1(3) of the C.P.C. Was a hurdle in filing the suit in hand when the writ petition was dismissed and the order passed in the writ petition attained finality after the withdrawal of the CPLA from the august Supreme Court of Pakistan. In this view of the matter, learned provisional court has rightly exercised jurisdiction vested in it under section 115 of the C.P.C. No case for interference by this Court while exercising jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 is made out. I find no infirmity or illegality or jurisdictional defect in the impugned order passed by the revisional court, therefore, this writ petition is dismissed.