1. This appeal has been filed against the judgment and decree of Additional District Judge Mirpur dated 28.09.2004, whereby the suit of the appellant was rejected under Order VII, Rule 11 of, CPC.
2. The precise facts giving rise to the instant appeal are that the appellant filed a suit for declaration- cum-possession with the prayer of mandatory injunction in the Court of District Judge Mirpur, which was entrusted to Addl. District Judge Mirpur. It was averred in the plaint that Town/Hamlet Committee Mirpur vide its Session dated 07.05.1973 allotted the Plot No, 4-A, measuring 2 kanals 4 Marlas situated in Sector A/4, Mirpur to one Faiz Alam. He paid all the amount of plot and get possession on spot on 08.05.1973. The said Faiz Alam sold the above plot to the plaintiff, which was accordingly transferred to his name by the concerned Department. It is alleged that without the consent of the plaintiff, the respondents/Municipal Corporation converted this plot into Vegetable/Fruit Market and marked the Plots No, 12, 13, 14, 15 & 16 over the disputed plot. It is further alleged that after marking the above mentioned plots, the respondents/Corporation allotted the Plots No, 12 & 13 to Defendant No, 1, Plot No, 14 to Defendant No, 2, Plot No, 15 to Defendant No, 3 and Plot No, 16 to Defendant No, 4 and the above said Defendants No, 1 to 4 have constructed shops over the disputed plot. The plaintiff alleged that in this way, the respondents/Corporation marked Plot No, 4-A and allotted it to the plaintiff instead of old Plot No, 4-A. It is stated that after the allotment/adjustment, the plaintiff sold the above mentioned Plot to proforma-Respondents No, 10 to 14 and it was also transferred by the concerned Department accordingly. The plaintiff stated that the owners of the Plots No, 6 & 7/Abdul Malik and Naseer-ud-Din challenged the above said adjustment/creation of Plots through two separate writ petitions in the High Court, which were accepted vide its judgments dated 13.05.2000 and the adjustment/creation of Plots was cancelled under Section 61 of the Local Government Act, 1990 and the same judgments were upheld by the Honourable Supreme Court through judgment dated 30.03.2001. The plaintiff further stated that all the proceedings regarding Plot in dispute were taken without jurisdiction, illegal and against the facts and to harm the plaintiff, which are void ab-initio against the rights of the plaintiff. The plaintiff prayed that a decree for declaration-cum-possession and mandatory injunction may be passed in his favour and against the defendants.
3. During the trial, the Respondents No, 1 to 4 have moved an application under Order VII, Rule 11 of, CPC. The learned Additional District Judge Mirpur, after hearing the parties, while accepting the above mentioned application, dismissed the suit, under Order VII, Rule 11 of, CPC, hence this appeal.
4. Argument have been heard.
5. It is important to note that during the pendency of the instant appeal an application for amendment of the plaint was moved by the plaintiff/applicant. In the application, it was contended that due to inadvertence at the time of drafting the plaint the plaintiff could not mention in the Para No, 4 of the plaint, the total land sold out by the plaintiff out of suit land, which was contested by the parties. However, the said application was allowed by this Court on 26.03.2013.
6. Now the latest position is that the plaintiff/ applicant who is the claimant of Plot No, 4-A in Sector A/4 Mirpur measuring 2 Kanals .4 marlas. He has sold out about 21 marlas of land and now prayed for a declaratory decree-cum-mandatory injunction alongwith the restoration of possession of remaining land measuring 23 marlas (1 Kanal 3 marlas)
7. Mr. Muhammad Idrees Mughal, learned counsel for appellant argued that after the amendment of the plaint, the file is to be remanded to the trial Court to adjudicate the matter on merits, after recording the evidence on all detailed facts of the case, because from the bare reading of the impugned order of the trial Court, it appear that the trial Court could not appreciate the factual position of the case and wrongly concluded that whole the suit land has been transferred by sale- deeds by the appellant/plaintiff. This findings of the trial Court has been concluded on the presumption not born out from the record of the case.
8. On the merit, the learned counsel reiterated the facts laid down in the plaint and agitated all the grounds taken in memo of appeal and submitted that all the grounds taken in memorandum of appeal be taken as integral part of his arguments and pointed out that the cause of action is available to the plaintiff/appellant, which is obvious from plain reading of the pleadings of the parties. He further argued that application by respondents for rejection of plaint also had an alternate plea in it which was itself evidence of prima-facie cause of action. The learned counsel vehemently argued that the impugned order is nullity in the eyes of law and the learned Judge of the trial Court has failed to construe the law regarding dismissal and rejection of plaint and prayed for the acceptance of appeal and remanding the case to trial Court for decision afresh on merits.
9. The learned counsel also filed written arguments, wherein detailed facts and the grounds have been reiterated and the following case-law has been relied upon:--
1. 1998 SCR 153;
2. 1994 SCR 119(b);
3. 1993 SCR 373 and;
4. unreported case titled "Iftikhar Ahmed Khokhar Vrs. Municipal Corporation Mirpur and four others." decided by the Apex Court on 30.11.2012.
10. The learned counsel pointed out that the suit was filed in the light of judgment of this Court, in writ jurisdiction titled "Abdul Malik Vrs. Municipal Corporation Mirpur and others" dated 13.05.2000 which was upheld by the apex Court vide order dated 03.03.2001 in appeal titled "Iftikhar Ahmed Khokhar Vrs. Abdul Malik and others". It is further stated that the learned trial Court fell in error to understand the basis of the pleadings and concluded against the facts and law, hence the appeal merits acceptance.
11. It is alleged by the learned counsel that by these findings, it has been concluded that the Municipal Corporation had no competence and jurisdiction to create a new plot. Therefore, the original plot allotted to Faiz Alam stood restored in favour of plaintiff/ appellant.
12. Sardar Muhammad Azam Khan, Advocate the learned counsel for (2nd vendor) Respondents No, 10 to 13 (now No, 26 to 29) argued that the respondents are the second vendors, who have stepped into the shoes of Faiz Alam, the learned counsel supported the version of appellants, and submitted that his clients have no objection if the appeal of the appellant is accepted.
13. Mr. Raja Farooq Minhas learned counsel for the private respondents defended the impugned order of Additional District Judge Mirpur dated 28.09.2004 and argued that even after amendment in the plaint the appellant has no locus standi against respondents. It is agitated by the learned counsel that first of all Mr. Faiz Alam had chosen to take the alternate plot and thereafter, he or his legal heirs have not come to the Court. It is further argued that the appellant has totally failed to substantiate his claim or ownership / allotment of suit land now claimed in plaint and the conclusion has rightly been drawn by the trial Court and the impugned order has been passed in a legal fashion by following the principles laid down by the apex Court. He referred the following case-law and prayed for dismissal of appeal with heavy costs:--
1. PLJ 2004 SC (AJ&K) 80 and;
2. 2007 SCR 410.
14. After giving due consideration to the moot point in the light of arguments advanced at Bar, it may be pointed out that the appellant/plaintiff brought the suit to get benefit of the judgments of this as well as of the apex Court referred above and prayed for the possession of the rest of the suit land.
15. The case of plaintiff which transpires from the record of the case shows that the appellant has instituted this declaratory suit cum suit for mandatory injunction alongwith a prayer for possession of the suit land measuring about 23 marlas as consequential relief.
16. I have gone through the impugned order and found that Court below after appreciating the documents appended with the plaint, has rightly pointed out that the plaintiff/appellant has no locus standi, because originally Plot No, 4-A was allotted to one Faiz Alam son of Muhammad Ismail and later on alternate Plot No, 4-A was given to Mr. Faiz Alam. While appreciating the plea of the appellant, in the light of judgments of this as well as of the Supreme Court noted above. It is found that after cancellation of original plot, alternate plot taken over by said Faiz Alam was sold to appellant Iftikhar Ahmed Khokhar (first vendor) who later on sold the same land to Respondents No, 10 to 14 (now 26 to. 29 (2nd vendors). However, as far as the damages claimed and cost of improvements are concerned, the plaintiff may choose other remedies if so advised.
17. While looking into the matter keeping in view the points decided in above said writ petitions and following the dictum laid down in "Administrator Municipal Committee Mirpur and others Vrs.
18. Mumtaz Ali and others as reported in 2001 SCR 263, the appellant/plaintiff has no cause of action in the light of averments made in the plaint. However, the principle laid down in PLJ 2004 SC (AJ&K)
19. 80 in a case Abdul Rehman Vrs. Sher Zaman is fully applicable to the present case (as relied upon by the trial Court), which reads as follow:-- "If at any stage it appears to the Court that the suit is incompetent the parties to the suit are at liberty to draw the Court's attention to same by way of an application,. Court can decide matter under the above rule as the policy of law is that the incompetent suit should be laid at rest at the earliest moment so that no further time is wasted".
20. Now, coming to the last moot point that under Order VII, Rule 11 of, CPC, suit can be dismissed or not.
21. The answer is in negative. It reveals from the record that the application was for REJECTION OF PLAINT or in alternative for filling of better statement of facts under Order VII, Rule 11 of, CPC and Order VI, Rule 5, CPC respectively, But the learned Additional District Judge has dismissed the suit under Order VII, Rule 11, CPC, which is not permissible under law, however, it seems to be inadvertence/human error or the error of judgment. The difference between rejection and dismiss is obvious, that in case of dismissal further suit is barred, whereas in case of rejection, there is no bar to further suit on separate cause of action.
22. In view of above, partly accepting the appeal of the appellant, the impugned order is modified to the extent of dismissal of the suit and "it is ordered that the suit of the plaintiff/appellant is rejected under Order VII, Rule 11, CPC. However the plaintiff/appellant may sue on any other cause of action accrued or accrues to him, if so advised".
23. The appeal of the appellant is disposed off in the terms indicated above with no order as to costs.
24. Note: The Deputy Registrar High Court Circuit Mirpur is directed to announce the judgment in presence of the parties or their counsel, after issuing notice to them.