Ch. Muhammad Ibrahim Zia, J.--This appeal with the leave of the Court is addressed against the judgment and decree of the High Court dated 16.2.2008 whereby the appeal filed by appellant against respondents has been dismissed.
2. The matter in dispute relates to alienation of Plots Nos, 538 and 539, measuring 16 marlas each, situated in Aziz-Pur Hamlet, on 16.4.1992. The appellant claims that he has purchased both the plots through an agreement to sell and an affidavit from Ashfaq Ahmed and Zaffar Iqbal Qureshi, sons of Bashir Ahmed, respectively. The predecessor-in-interest of Muhammad Riasat instituted a declaratory suit in the Court of Civil Judge Mirpur on 22.6.1992 against Ashfaq Ahmed and Zaffar Iqbal sons of Bashir Ahmed with the prayer that both the plots mentioned above have already been purchased by him. The learned Civil Judge, after issuing proclamation in some newspaper, passed an ex-parte decree on 29.9.1992, in favour of Muhammad Riasat, the predecessor in interest of respondents.
3. Muhammad Riasat, the Predecessor in interest of respondents got transferred both the plots in his name, in the record of Municipal Corporation on 14.2.1993, on the basis of ex-parter decree.
Adalat Khan, Respondent No, 5 instituted a collusive suit on 30.12.1993 against Muhammad Riasat, in the Court of Civil Judge, Mirpur wherein Muhammad Riasat admitted the claim of Respondent No, 5 and filed a cognovit just after two days from the date of filing the suit. The suit filed by Respondent No, 5, despite admission of Muhammad Riasat, was dismissed by the Civil Judge Mirpur on 5.1.1994. Adalat Khan, Respondent No, 5 preferred an appeal before the District Judge, Mirpur on 12.1.1994 against the judgment and decree of the learned Civil Judge dated 5.1.1994 who accepted the appeal and passed a compromise decree in favour of Respondent No, 5 regarding the disputed plots subject to payment of fee, etc. The appellant, filed a declaratory suit in the Court of Civil Judge Mirpur on 22.2.1994 with the prayer that Plots No, 538 and 539, measuring 16 marlas each, are in the ownership of the appellant who purchased the same from the original allottees and the respondents have no concern with the disputed plots. The decrees passed by the District Judge and Civil Judge have also been challenged by the petitioner. The learned Civil Judge, Mirpur dismissed the suit filed by plaintiff-appellant, vide judgment and decree dated 26.3.1999, for want of proof approached the District Judge Mirpur against the judgment and decree of Civil Judge dated 26,3,1999. During pendency of appeal in the Court of District Judge, Muhammad Riasat died on 16.1.2004 and his legal heirs were impleaded. The appeal was dismissed by District Judge Mirpur vide order dated 27.0.2005. Second appeal filed by the petitioner also met the same fate. The plaintiff-appellant approached this Court through the instant appeal, to assail the legality and correctness of the impugned judgment and decree of the High Court as well as the Courts below.
4. Sardar Muhammad Azam Khan Advocate, the learned counsel for the appellant, after discussion of necessary facts, focused his argument on the point that the appeals by both the Courts below have been dismissed on the point of n on-impleadment of legal heirs of the deceased party. He further submitted that after introduction of amendment in the Civil Procedure Code and adaptation of same in the Azad Jammu and Kashmir, the question of abatement of appeal or suit becomes irrelevant. No cause can be dismissed on this ground. Therefore, according to his version, the impugned judgment is not sustainable. He further submitted that by accepting the appeal and setting aside the judgment and decree of the Courts below, the case may be remanded for disposal under law. However, he was confronted with the proposition that how a decree and judgment of District Judge can be assailed before the Court of Civil Judge, he was unable to satisfy the Court or refer tc any statutory provision or legal precedent in this regard.
5. Conversely, Ch. Jehandad Khan Advocate, the learned counsel for the respondents, while strong opposing the appeal submitted that the arguments of learned counsel for the appellant are misconceived. It is not only the question of non-impleadment of the legal heirs of deceased persons but is also of filing appeal against dead person. The Courts below have passed the judgments according to celebrated principle of law which are unexceptionable and does not call for any interference. He further submitted that arguments of learned counsel for the appellant that due to amendment in Civil Procedure Code, question of abatement has become irrelevant is misconceived. The suit has been filed before the introduction of amendment in Civil Procedure Code. Even otherwise, the referred amendment has no effect on this case. He further submitted that the plaint on the face of it is not maintainable. The plaintiff-appellant has challenged in the suit the impugned judgment and decree of District Judge dated 25.1.1994. According to statutory law, decrees and judgments of superior Courts cannot be challenged before subordinate Courts and on this score, this plaint was not entertainable and liable to be dismissed.
6. We have heard the learned counsel for the parties and also Perused the record, In this case, a very novel point has arisen from pleadings of the parties, The plaintiff' appellant in paragraph 4 of his plaint has also challenged the propriety of the compromise dimes passed by the District Judge.
It will be useful to reproduce here pare 4 of the plaint which reads as under: {{URDU TEXT}}\ In the prayer clause, the appellant has also prayed for setting aside the compromise decree as well as judgment of the District Judge dated 24.1.1994.
7. The interesting proposition which emerged in this case is whether a compromise decree and judgment of District Judge can be challenged before Sub Judge and such plaint is maintainable or not?
According to enforced law, the proceedings of civil suit are governed by the Code of Civil Procedure. The same Code also provides remedies of appeal, revision and review against the judgments, orders and decrees. In this Code, there is no express statutory provision to authorize any person to challenge the decree and decision of the appellate Court before the subordinate Court. The learned counsel for the parties have also not succeeded to derive such intention of legislature from any provision of the Code of Civil Procedure. The Civil Procedure Code has comprehensively provided remedies against the decision, order and decree of every type.
Although, under the provision Section 96 of CPC, a decree passed with the consent of the parties is not appealable. According to celebrated principle of law, this bar operates against the party to a decree whereas in the instant case, the appellant-plaintiff was not a party to the decree, therefore, his right of appeal is not barred by this statutory provision.
8. According to admitted facts, the suit filed by one of the respondents, Adalat Khan, was dismissed by the Additional Sub judge, Mirpur and the appeal was filed before the District Judge, Mirpur wherein the parties in the appeal entered into compromise, consequently, the District Judge, decreed the suit on 25.1.1994 according to which, Adalat Khan was declared owner of the suit property. Admittedly, the present plaintiff-appellant was not a party in the proceedings. He has challenged the decree and judgment of the District Judge on the ground that it is against law and inoperative on his rights. Under the provision of Section 100, CPC, second appeal is competent if the decree passed in the first appeal is contrary to law, therefore, the proper course open for appellant-plaintiff was to challenge the propriety of the decree through an appeal in the High Court. The other remedy available to him was the review under the provision of Section 114, CPC which speaks as under:-- "114. Review. --(1) Subject as aforesaid, any person considering himself aggrieved-- (a)by a decree or order from which an appeal is allowed by this Code, but from which no appeal has been preferred, (b)by a decree or order from which no appeal is allowed by this Code, or (c)by a decision on a reference from a Court of Small Causes, may apply for a review of judgment to the Court which passed the decree or made the order, and the Court may make such order thereon as it thinks fit.
(2) ...................
In the light of hereinabove discussed legal and factual proposition, it is obviously clear that the judgment and decree of the District Judge cannot be challenged before the Civil Judge, a subordinate Court and neither the subordinate Court is competent to set-aside the judgment and decree of the appellate Court. Reliance can be made to a case reported as Maszullah Khan & 3 others v. Sher Afzal Khan, reported as [2001 CLC 754], whereby this Court while dealing with this same proposition has observed as under:-- "6 ... The remedies available to the appellants against an ex parte decree were to file.--(i) an application under Order IX Rule 13, C.P.C., (ii) a review application under Section 114 Cr.P.C. and (iii) an appeal under Section 96, CPC, but instead of availing the aforesaid remedies the appellants chose to file a declaratory Suit which was neither competent under any provision of law nor the learned counsel for the appellants could substantiate his view point that the declaratory suit for setting aside the ex parte decree was maintainable under any of the provisions of law."
9 It is very strange that the parties are litigating for a pretty long time anu this aspect of the lis has been over sighted by the Courts below as well as learned counsel for the parties. The statutory provisions of Rule 11 Order VII speaks as under:-- "11. Rejection of plaint.--The plaint shall he rejected in the following cases;-- (a)where it does not disclose a cause of action; (b)where the relief claimed is undervalued, 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 properly 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 any law."
Thus, the provision of clause (d) of Rule 11, CPC, reproduced above is fully attracted in this case. This provision clearly speaks that whether their lies an appeal or not? The remedy of review in civil cases is available, thus in presence of such remedies under the expressed statutory provision, in our considered view, the judgment and decree of District Judge cannot be challenged in the suit before the subordinate Court. Thus, the plaint, on the face of it, was not maintainable. Therefore, under the provisions of Order VII Rule 11, Civil Procedure Code, was liable to be rejected.
10.Although, in the plaint, the propriety of the ex-parte decree passed by Civil Judge has been challenged. It may be claimed that to this extent, the plaint is maintainable. But in the light of peculiar facts of this case, still the plaint is not maintainable because relating to same suit property, the subsequent decree and judgment has been passed by the District Judge. In presence of this judgment and decree of District Judge, the previous ex-parte decree and judgment of the Civil Judge, do not remain operative. Thus, due to finality of the judgment and decree of the District Judge dated 5.1.1994, the plaint regarding the ex-parte decree is also not maintainable.
11.In the light of these statutory provisions, if in any case, any of the provisions from clauses (a) to
(d) is attracted, the plaint shall be rejected. Regrettably, due to over-sighting of this statutory provision and aspect of the lis by the Courts as well as counsel for the parties, they have suffered from futile litigation for a pretty long period. Such practice not only resulted into wastage of time of the Courts but also amount to misuse of the process of the Courts. For safe administration of justice, the Bench and Bar, both should have to discharge their duties vigilantly and strictly in accordance with law. In this case, it appears from the statement of the appellant-plaintiff that he has prayed for setting aside the judgment and decree of the appellate Court i,e, District Judge, thus, the plaint is barred by law. Consequently, the same is rejected by application of the provision of clause (d) of Rule 11 Order VII of Civil Procedure Code.
As from the very foundation, the plaint has been rejected, therefore, all the superstructure built upon it also falls on the ground, therefore, all other points raised in the arguments and in the appeal becomes irrelevant and we don't feel any necessity of deliberation upon this merely for academic purpose, resultantly due to rejection of the plaint, this appeal also stands dismissed without any order as to costs.