1. ' HASAN FEROZ, J.---The instant Revision Application under section 115, C.P.C. Has been filed by the applicant wherein following prayer has been made:-- To set aside the impugned order dated 5-3-2013 passed by the respondent No. 3 in Trust Suit No.01/2009 [Abdul Hafeez Khan and another v. Qazi Muhammad Aslam Tabassum and others] and consequently the application under Order VII, Rule 11, C.P.C. Of the applicant may be allowed as prayed in the prime interest of justice and equity.
2. ' Captioned revision has been directed whereby order dated 5-3-2013 as passed by the learned 3rd Additional District and Sessions Judge Karachi (West) on an application under Order VII, Rule 10, C.P.C. Read with section 151, C.P.C. In Trust Suit No. 01/09, whereby the said application was dismissed with imposition of cost of Rs. 10,000 on the applicant.
3. ' As per the learned counsel for the applicant, brief facts leading to this appeal are that the above mentioned Trust Suit No.01/09 is pending before respondent No.3 wherein the issues have been settled and now the matter is fixed for evidence but no evidence has been recorded so far. The said suit was also referred for arbitration with the consent of the parties of the arbitrator of their choice but thereafter the parties did not agree for such arbitration and as such the said suit was again referred to the court of respondent No. 3.
4. ' Since the plaintiffs/respondents Nos. 1 and 2 have filed the above mentioned suit seeking the relief of declaration, cancellation of documents, possession and permanent injunction, which is purely a civil dispute and does not fall within the ambit of section 92, C.P.C., therefore, the counsel for the applicant/ defendant No. 1 filed an application under Order VII, Rule 10 read with section 151, C.P.C.
5. Before the respondent No.3 whereby the suit may be returned to the plaintiffs/respondents Nos. 1 & 2 with direction to present he same before the proper forum having original civil jurisdiction but respondent No. 3 not only dismissed the said application but also imposed a heavy cost of Rs.
6. 10,000 upon the applicant.
7. ' In support of his contentions, learned counsel for the applicant has contended that the application under Order VII, Rule 10, C.P.C. Filed on behalf of the applicant is entirely based on law and legal grounds but the learned respondent No. 3 ignored and disregarded the legal grounds as raised in the said application hence impugned order suffers from serious illegality as well as irregularity which certainly requires the interference. Learned counsel further contended that the application under Order VII, Rule 10, C.P.C. Filed by the applicant was unrebutted and no any objection or counter affidavit was filed on behalf of the respondents Nos. 1 and 2, therefore, the impugned order passed by the respondent No. 3 is unwarranted and arbitrary in law and liable to be set-aside. He further argued that findings of respondent No. 3 for dismissing the application under Order VII, Rule 10, C.P.C. Are entirely illegal and illogical while concluding that an application under Order VII, Rule 11, C.P.C. Was already filed and disposed of in the matter. The respondent No. 3 has further gone astray while considering the suit in hand was already filed in the Civil court which was dismissed as necessary permission of Advocate General was not obtained, hence fresh suit was filed, and that since the matter pertains to religious institution dispute which facts were already in the knowledge of defendant No. 1 but despite of the fact that he filed the said application.
8. ' Learned counsel for the respondent has candidly argued that if the law with regard to section 92, C.P.C. As referred in the application under Order VII, Rule 10, C.P.C. Would have been brought, on the record by the respondents their earlier suit would have never been dismissed/returned in terms of Order VII, Rule 11, C.P.C. From the Court of Civil Judge, moreover the respondent No. 3 was not bound to the earlier illegal order of Civil Judge which was obviously the upshot of misreading and non- reading of law hence the impugned order is illegal, unlawful and whimsical and is liable to be set- aside.
9. ' In support of his contentions, learned counsel for applicant has relied upon the citation reported in SBLR 2003 Sindh 246, which is distinguishable to the facts of the case. I have in my view that the respondents Nos. 1 and 2 earlier have filed a Trust Civil Suit No. 01/2009 wherein following prayers have been made:-- ' (A) A declaration to the effect that the registered trust/association of the plaintiffs known as JAMIA FATAH UL-QURAN and JAMIA MASJID ALI MURTAZA situated in plot No. ST-1-2, Sector No. 5-E, Surjani Town, Karachi is firstly registered and established in respect of the said mosque and madersa by the plaintiffs is lawful body to deal with the affairs of the said mosque and madersa, whereas the defendant No. 1 has fraudulently and malafidely registered his trust known as JAMIA MAARIF SHARIA and JAMIA ULOOM-E-SHARIA KARACHI on the same plot (mosque and madersa) later on illegally/forcibly hence it is null and void having no legal value and liable to be cancelled.
(B) A decree thereby the false, bogus/fraudulent trust of the defendant No. 1 known as JAMIA MAARIF SHARIA & JAMIA ULOOM-E-SHARIA KARACHI, Plot No. ST-1/2, Sector No. 5-E, Surjani Town, Karachi may be cancelled and the defendant No. 2 may be directed to cancel the said document and its record in his office accordingly.
(C) The defendant No. 1 may be directed to hand over the entire affairs/management and control of the said JAMIA FATAH ULQURAN &. JAMIA MASJID ALl MURTAZA situated in Plot No. ST-1-2, Sector No. 5-E, Surjani Town, Karachi including all its funds. Accounts, constructions work material etc., even those which the defendant No. 1 has obtained in the name of his so-called bogus trust later on to the plaintiffs.
(D) A permanent injunction, thereby restraining the defendant No. 1 his men, agents, representatives, servants, attorneys, successors, or any other persons acting on their behalf or under their authority from making construction work and misusing the funds and accounts of the JAMIA FATAH UL-QURAN & JAMIA MASJID ALl MURTAZA situated in Plot No. ST-1-2, Sector No. 5-E, Surjani Town, Karachi without due course of law in any manner of the mosque and madersa.
(E) Cost of the suit.
(F) Any other/further relief; ' Upon filing of the aforesaid suit before the Court of III Additional District and Sessions Judge Karachi, (West) the applicant/defendant No. 1 filed an application under Order VII, Rule 10, C.P.C.
10. Read with section 151, C.P.C. Wherein the defendant seeks to return the plaint of the above suit to the plaintiff with direction to present the same before the proper forum i.e., having original civil jurisdiction in the interest of justice. The said application has been heard by respondent No. 3 and passed an order dated 5-3-2013 whereby the application of the defendant was dismissed besides imposing cost of Rs. 10,000. For the sake of convenience relevant portion of the order dated 5-3- 2013 passed by the 3rd" Additional District Judge, Karachi (West) is as under:- "As per contents of plaint earlier plaintiff filed Suit No. 167/08 which was dismissed under Order VII, Rule 11, C.P.C. On the ground that the necessary permission not obtained from Advocate-General under section 92, C.P.C. Thereafter fresh suit filed with permission of consent of Advocate-General Sindh. Since the case is pertaining to religious institution dispute. These all facts were already in knowledge of defendant No. 1 despite of it he filed present application under Order VII, Rule 10, C.P.
11. C. With request to return the plaint and plaintiff be directed to file fresh suit like his previous Suit No.167/08.
12. This factual position show mala fide intention of defendant No. 1 to keep the case in court till to twist the facts only to linger on one ground or another. Therefore this application is dismissed with cost of Rs. 10,000. This cost should be deposited in court within one month by defendant No. 1"
13. ' Learned counsel for the respondent has contended that the applicant is constantly derailing the cause of action by creating hurdles in shape of technicalities as the conduct of the applicant in the first instance was not against the very cause of action but against the forum of suing the suit in the lower court on the ground of non-maintainability under Order VII, Rule 11 and the present application under Order VII, Rule 10 is not maintainable under the law.
14. In view of the above discussions, I am of the considered view that in these circumstances the applicant seems to linger on the matter to enable him to gain maximum period as in presence of permission granted by the Advocate General Sindh under section 92, C.P.C. No cause remains in field as to the legality of institution of present suit by a religious Trust. Therefore, I find that there is no need to interfere with the impugned order dated 5-3-2013 and I therefore, uphold the same. So far as the cost of Rs. 10,000 imposed on the applicant the same is liable to waive as it is the right of party to move application under the law, however, imposition of cost of Rs. 10,000 is dispensed with.
15. With the above modification the impugned order dated 5-3-2013 will remain in field. The revision application is dismissed.