' LAL JAN KHATTAK, J.---This revision petition is directed against the judgment and decree dated 9- 8-2012 of the learned Additional District Judge-V, D.I.Khan whereby appeal of the respondents against the judgment and decree dated 27-7-2012 of the learned Civil Judge-IV, D.I.Khan was accepted.
2. Short facts of the case are that the respondents Nos.1 and 2/plaintiffs filed a declaratory suit against the petitioner and others for cancellation of gift Mutation No,16847 attested on 25-5-2000 on the ground of its being based on fraud committed by the petitioner-defendant No,1 on their mother Mst. Saleh Bibi. Along with the plaint the respondents-plaintiffs moved an application for status quo while respondents-defendants Nos.21 and 22 also filed an application for their transposition as plaintiffs. These two petitions came up for hearing on 27-7-2012 before the learned trial court whereupon the learned trial court by invoking the provisions of Order VII Rule 11 C.P.C., rejected the plaint on the ground that suit of the plaintiffs is hit by the principle of res-judicata, suffers from estoppel and is time barred. This order of rejection of the plaint dated 27-7-2012 was impugned by the respondents-plaintiffs in appeal which was accepted by the learned appellate court vide judgment and decree dated 9-8-2012. This order is now under challenge through this revision petition.
3. Learned counsel for the petitioner contended that the gift mutation was attested on 25-5-2000 and the present suit has been filed in the year of 2012 which is hopelessly time barred. He further contended that due to estoppels, suit of the plaintiffs is not maintainable as the mutation impugned by them is the result of arbitration proceedings which were carried out with their consent. The learned counsel contended that the principle of res judicata is fully applicable to the instant case as the issue raised by the plaintiffs has already been resolved in an earlier suit.
4. As against the above, learned counsel for the respondents plaintiffs and learned counsel for respondents Nos.21 and 22 supported the judgment and decree of learned appellate court by contending that the issue raised in the instant plaint is altogether different and new one as the mutation impugned in the suit is the result of fraud and misrepresentation committed by the petitioner upon their mother.
5. I have heard learned counsel for the parties and perused record of the case.
6. Perusal of the record indicates that at the relevant time issue before the learned trial court was grant or otherwise of interim relief sought by the respondents-plaintiffs and decision on application of the respondents Nos.21 and 22. It appears that while disposing of the aforesaid two applications, the learned trial court formed an opinion that the plaint is hit by Order VII Rule 11 C.P.C.
And consequently the same was rejected.
7. True that a trial court is empowered to reject a plaint under Order VII Rule 11 C.P.C. If from its averments the court comes to a conclusion that the rejection is justifiable. However, the material for such conclusion of the trial court must be undisputed leaving no room for second opinion. In the instant case, though there was an earlier round of litigation between the parties over the suit land which was culminated in some arbitration proceedings but through the present suit the respondents-plaintiffs have challenged legality of mutation No,16847 on the ground of its being based on fraud which is a separate cause of action for the respondents as according to the averments of the plaint their mother never gifted the suit property to the petitioner.
8. Whether the ibid mutation is based on fraud or otherwise is a question which can be answered only when some evidence is recorded to the above effect. In absence of any evidence the issue of res-judicata cannot be resolved. Likewise the issue of limitation too is a mixed question of law and facts resolution of which is subject to proof.
9. For the above discussion and reason, it is held that the judgment and decree of the learned appellate court is based on sound reasons and is in accordance with the established principles of law laid down by the superior Courts for resolution of issues like the one cropped up in the instant case. I do not see any illegality or infirmity in the judgment and decree impugned through the instant revision petition. Consequently the revision petition being devoid of any merit is dismissed.