' MUHAMMAD SHAFI SIDDIQUI, J.---These are connected revision applications and since common question of law and fact is involved, therefore, I prefer to dispose of all these revision applications by .a common order.
2. Being aggrieved and dissatisfied with the judgment dated 3 March, 2010 passed in Civil Appeal No.43 of 2009 and others and the order dated 3-10-2009 passed by learned Senior Civil Judge, Jamshoro in F.C. Suit Nos.1 to 7 2005, the applicants have preferred these revision applications.
3. Brief facts of the case are that applicants tiled suits bearing Nos.1 of 2005 to. 7 of 2005 in the Court of Senior Civil Judge, Kotri for declaration and permanent injunction. The following is the prayer of the applicants in the aforesaid suits:- "(a) That it may be declared that the plaintiff is owner of the suit-land and has acquired property rights in the suit-land.
(b) That the defendant has no right in the suit-land in whatsoever manner as the suit-land is private land and has been purchased after verification from the Government Department.
(c) That to grant permanent injunction thereby restraining the defendants not to interfere in the peaceful possession of the plaintiff over the suit-land by himself, his subordinates, attorneys, agents, servants or any other person in any manner whatsoever.
(d) That' to grant any other relief, which this honourable Court may be granted in the circumstances of the case.
(e) Costs of the suit be awarded to the plaintiff."
4. Originally the plaints were rejected under Order VII Rule 11 C.P.C. Vide order dated 21st February, 2006, against which review applications were filed which were also dismissed vide order dated 30- 5-2006. Subsequently, applicants filed revision applications and the same were allowed by learned District Judge vide order dated 7-4-2008, remanding the review applications for fresh hearing.
Subsequently, after remand, the applications under Order VII, Rule 11, C.P.C. Were heard and, were dismissed vide order dated 27-5-2008. The respondents again filed applications under Order VII, Rule 11, C.P.C. On 22-8-2009 which applications were allowed and the plaints in all the suits were rejected by order dated 3-10-2009 which orders were impugned by the applicants in Civil Appeals preferred before District and Sessions Judge which were dismissed vide impugned orders.
5. It is contended by learned counsel for the applicants that the trial Court in substance in the concluding paras of the order dated 3-10-2009 observed that cause of action "ceased of" in view of the fact that fresh suits have been filed by the applicants and it was further observed that since two decrees cannot be obtained on the same subject property, therefore. In its wisdom, the trial Court was pleased to reject the plaints of the earlier series of suits instead of second series of suits.
The concluding para of the order of the trial Court is reproduced as under:-- "Therefore I am of humble view that in this suit the cause of action has been (sic) ceased of two the plaintiff presence of fresh suit filed by him and no two decrees can be obtained on the same subject of property. The suit of plaintiff is barred by the Specific Relief Act. So far as the question of rejection of plaint is concerned, it can be rejected at any stage of the proceedings hence the suit of plaintiff is barred under section 56(i) of Specific Relief Act, hence plaint is rejected under Order VII, Rule 11, C.P.C. With no order as to costs. Since the pending interlocutory applications filed by the plaintiff under Order XXXIX, Rules 1 and 2, C.P.C. As well as application under Order XXXIX Rule 2(b), C. P.C. Stands dismissed become infructuous after rejection of the suit plaint."
6. Learned counsel for the applicants submits that no doubt the applicants have preferred another series of suits i.e. Suit No.1 of 2009 to 7 of 2009, however the said suits were based on fresh cause of action. It is contended by learned counsel for the applicants that when the earlier suits were filed, the entries in the Revenue Record which were based on registered sale-deed were not cancelled whereas the subsequent suits were filed on fresh and new cause 'of action and ground that official respondents have cancelled the entries in the record without application of mind and without cancellation of such sale-deeds. Learned counsel submits that without prejudice if at all such principle is to be applied then allegedly the second series of suits could be hit by the said provisions of law and not the earlier suits.
7. On the other hand learned counsel for respondents has filed the counter affidavit and submitted that they have also filed a third series of suits in respect of the same property which plaint is attached along with counter affidavit. Learned counsel for respondents submits that the copy of second series of plaints clearly shows that it substantially touches and covers the relief claimed in the earlier suits. Learned counsel submits that after filing of the first series of suits in the month of December, 2004, the entries were cancelled by the E.D.O. Revenue, Jamshoro vide order dated 3 September, 2005 and hence since the case of applicants become infructuous, the plaint was rejected. Learned counsel submits that second application was filed by the respondents as review application was allowed vide order dated 7-4-2008 and two points were framed which are as under:- ",(i) Whether sub sequent events occurred during pendency of the suit cannot be considered?
(ii) Whether in presence of proceedings before the honourable High Court of Sindh regarding foundation plaintiff's document of title, which is base of the suit, what is its effect on the present suit?"
8. Although the application under Order VII Rule 11 C.P.C. Was rejected vide order dated 27-5-2008, however on preferring another application dated 22-8-2009 under Order VII Rule 11, the same was allowed on 3-10-2009.
9. Learned A.A.G., has supported the case of respondents.
10. I have heard the learned counsel and perused the record.
11. Order VII, Rule 11, C.P.C. Reads as under:- "Rejection of Plaint:- The plaint shall be 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 if, 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."
12. Admittedly the cause of action is disclosed in the plaint in Para 10. The cause of action was shown to be of 13 December, 2004 when the respondents/ defendants came to threaten the applicants to dispossess them and again on 21st December, 2004 when the applicants were called by the defendants/respondents in their office. Based on this the suits were filed for the relief mentioned in Para 3 above.
13. It is aforesaid cause of action and the prayer regarding which the plaint was rejected with the observation that subsequent suits were filed and the Ist series of suits have become infructuous. It appears that during pendency of the suit, the entries in the name of the applicants were cancelled on 3 September,. 2005 which facts were not the subject of the earlier suits i.e. 1 of 2005 to 7 of 2005.
This order of revenue authorities is the subject-matter of the second series of suits i.e. Suit No.1 of 2009 to 7 of 2009 in which the applicants have disclosed subsequent cause of action with the following prayer:- "(a) To declare that cancellation of Entries No.101, Khata No.371, measuring 26-35 acres in respect of the suit-land is illegal, void, ab initio.
(b) Restore the original entries in respect of the suit-land as maintained before and at the time of registered sale-deed dated 27-10-2003, in favour of the plaintiff.
(c) Mandatory injunction directing the Revenue Authorities , to undo all illegal and fabricated entries against the rights and interest of the plaintiff made in the record in consequence of impugned orders dated 3-9-2005 and 30-6-2006 in respect of "suit-land".
(d) Permanent injunction restraining the defendant from making any change/alteration in the record of rights without order of the Court.
(e) Any other relief which this Honourable, Court may deem fit and proper in the circumstances of the case. Cost of the Suit."
14. It is not appealable to my mind as to how the trial Court has observed that cause of action ceased on account of filing of the fresh suits which series of suits were filed on the subsequent and -fresh cause of action in terms whereof the entries were cancelled. The respondents have not shown any provisions of law under which the suit appears to have been barred by law. I would not like to comment as far as the observation of the EDO Revenue dated 3 September, 2005 is concerned as it may or may not be correct but such facts could lead to dismissal of suit but not for rejection of plaint as certainly the averments of the written statement cannot be considered to reject the plaint which plaint admittedly was filed for declaration that the applicants/ plaintiffs are the owner of the subject property based on registered sale-deed. No doubt the validity or genuineness of such sale-deed could be determined in trial but such defence cannot be summarily used for rejected of Plaint under the circumstances of the case. No doubt the applicants have assailed the orders of 3 September, 2005 passed by EDO Revenue in an appeal before the Member Board of Revenue whereafter they filed the second series of suits, however such act might cause prejudice to the second series of suits which had been filed after availing the remedy before the Member Board of Revenue but certainly cannot be a tool for rejection of Plaint in the suits which were filed in the year 2004. Since the question of genuineness of the entries based on the registered sale-deed is subject-matter of the second series of suits, therefore, I would not like to comment in this regard further.
15. Similarly, the appellate Court also dealt with these issues and framed the following three points for determination:---
(1) Whether the suit of appellant is not maintainable at law?
(2) Whether the order dated 3-10-2009, passed by learned Senior Civil Judge, Kotri in FC suit No. 7 of 2005 is contrary to the law has no legal effect and is liable to be set-aside?
(3) What should the judgment be?"
16. The appellate Court also held that appellant has, no title in the property and since applicants have preferred fresh suits therefore, application under Order VII, Rule 11, C.P.C. Was rightly granted and upheld the order of the trial Court in terms whereof the plaint was rejected. Certainly as far as maintainability of the suit is concerned, the suit could be dismissed as being not maintainable but the plaint with reference to above submission of respondents cannot be rejected. There were no findings regarding registered sale-deed and entries entered in Revenue Record on that basis. As far as Point No.2 is concerned, the applicants have preferred suit for declaration being. The owners of the property on the strength of sale-deeds and as such in view of the facts and circumstances of the case, the plaint cannot summarily be rejected when the cause of action has been disclosed.
17. In view of above I deem it appropriate to set aside the two impugned orders dated 31-3-2010 passed by learned District Judge, Jamshoro in Civil Appeals Nos. 43 to 49 of 2009 and the order dated 3-10-2009 passed by learned Senior Civil Judge, Kotri in F. C. Suit. Nos. 1 to 7 of 2005 and remand the case to the trial Court for proceeding in accordance with law.
18. These are the findings of my short order dated 30-9-2013 whereby these revisions applications were allowed.