' M. TABASSUM AFTAB ALVI, J.--- The supra titled writ petition has been addressed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, whereby following relief is solicited by petitioners:- "It is, therefore, most humbly prayed that petition may kindly be accepted. An appropriate writ in favour of petitioners against the respondents may kindly be issued whereby order and decree passed by the respondent No.1 on 26-6-2008 may kindly be declared against law, procedure, facts, record, without jurisdiction and of no legal effect. The suit filed by the petitioners in the Trial Court may kindly be held maintainable and order passed by the Trial Court on 14-5-2005 may be restored. Any other further relief which this Hon'ble Court deems fit in the circumstances of the case may also be granted in the best interest of justice with heavy cost."
2. The precise facts culminating into filing of the instant writ petition are that petitioners-plaintiffs filed a suit for declaration-cumperpetual injunction before Civil Judge Muzaffarabad, on 17-3-2005, wherein it was stated that land comprising Survey Nos.101 min, 102 min (old), and 289 (new), measuring 5 marlas, situated in village Battal, Tehsil Naseerabad, was consisting of a pond, while Survey No.114 was also used by people of locality as path, who solicited decree for perpetual injunction against private respondent-defendant. The suit was, however, resisted by private respondent through written statement dated 19-4-2005. The trial Court on the basis of pleadings of the parties framed issues. The evidence of petitioners-plaintiffs was also partly recorded.
Meantime, an application for vacation of stay order was moved by respondent-defendant. After receiving the aforesaid application a local commission was appointed by the Trial Court to obtain report regarding nature of disputed land. As per report, the land in dispute was transferred by defendant to his sons through registered gift-deed, hence, an application was filed by petitioners to challenge the said gift-deed which was allowed and consequently amended pleadings were also filed by parties before the Trial Court. The private respondent-defendant, however, later on moved an application under Order I rule 8 read with Order VII, rule 11 of Civil Procedure Code, for rejection of plaint. After receiving objections and hearing the learned trial Court dismissed the application vide order dated 14-5-2005. Against the aforesaid order private respondent-defendant filed a revision petition before District Judge Muzaffarabad, - which after hearing was accepted and plaint filed by petitioners-plaintiffs was rejected vide impugned order dated 26-6-2008, hence, the instant constitutional petition.
3. The writ petition has been resisted by private respondent through written statement dated 14-4- 2009. It is stated that petitioners are not covering in the definition of an aggrieved party within the meaning of section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974. It is maintained that as petitioners misstated facts and mislead the Court, hence, they are not entitled for any relief. It is further stated that as private respondent No.2 transferred land in dispute to his sons who were not impleaded party, therefore, writ petition is liable to be dismissed on this solitary ground. It is also stated that few petitioners never hailed from village Battal, who filed the case for mala fide reasons and prayed for dismissal of writ petition.
4. Raja Iqbal Rasheed Minhas, the learned counsel for petitioners, vehemently argued that suit filed by petitioners could not be thrown out by the learned District Judge, while hearing a revision petition under section 115 of Civil Procedure Code. He emphasized that permission as required by Order I, rule 8 of Civil Procedure Code, was also obtained from the Trial Court, therefore, aforesaid provisions were not violated by petitioners-plaintiffs. The learned counsel maintained that upon land in dispute although at present there is no pond, however, previously the same was available which remained under the use of people of locality, hence, submitted for acceptance of writ petition 5, Mir Abdul Latif, the learned counsel for contesting respondent has raised a preliminary objection that plaint filed by petitioners-plaintiffs was rejected by the learned District Judge, while exercising powers under section 115 of
6. After hearing the learned counsel for parties at length, I have perused the contents of writ petition and examined the appended documents with utmost care.
7. A glance perusal of record reveals that an application was moved on behalf of respondent- defendant before the Trial Court for rejection of plaint as barred under Order I, rule 8 of Civil Procedure Code, which was turned down by the said Court vide order dated 14-5-2008. Against the aforesaid order private respondent Mir Muhammad Khan, filed a revision petition before the learned District Judge Muzaffarabad, on 30-4-2007. The aforesaid revision petition after hearing was accepted and plaint filed by petitioners-plaintiffs was declared as barred under Order I, rule 8 of Civil Procedure Code, therefore, the same was rejected vide impugned order and decree dated 26-6-2008. Against the aforesaid order and decree an appeal could be A filed by petitioners, however, writ petition is not maintainable. According to section 2(2) of Civil Procedure Code, 1908, rejection of a plaint is decree which is reproduced as under:- "S. 2(2) 'Decree' means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint [the determination of any question within section 144, and an order under rules 60, 98, 99, 101 or 103 of Order XXI] but shall not include---
(a) any adjudication from which an appeal lies as an appeal from an order, or
(b) any order of dismissal for default."
' A bare reading of statutory law supra makes it abundantly clear that order of rejection of plaint by the learned District Judge, through order dated 26-6-2008, was a decree. Even on rejection of plaint, decree was also framed by the learned Court on the same day i.e. 26-6-2008. The writ petition is, therefore, bad in law against the aforesaid order and decree. The point ibid came under consideration before the apex Court in an unreported case titled Zeegum Saleem Khan and others v. Mir Alam and others (Civil Appeal No.64 of 2005) decided on 30-7-2007. Theparagraphs 9 and 10 of the precedent case are relevant which are reproduced herein below:--- "9. Now the next question arises whether in the instant case the learned counsel for the respondents exercised due diligence and after study of the law he was confused due to some provisions of law, therefore, he has chosen the wrong forum. A perusal of the file and the relevant law shows that the plaint was rejected by the learned District Judge while exercising powers under Order VII, rule 11 of the Civil Procedure Code. A decreer has been defined in section 2(2) of the Civil Procedure Code. It clearly contains that it shall include the rejection of the plaint. For having proper perception, we would like to reproduce section 2(2) as under:- "S. 2(2) 'Decree' means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint [the determination of any question within section 144, and an order under rules 60, 98, 99, 101 or 103 of Order XXI] but shall not include---
(c) any adjudication from which an appeal lies as an appeal from an order, or
(d) any order of dismissal for default."
10. The aforesaid provision clearly contains that an order of rejection of the plaint will amount to a decree. It is well-settled principle of law that the appeal lies against a decree, therefore, the order regarding rejection of the suit under Order VII, rule 11 of the C.P. C. Was appealable as such has been held by this Court in the previous round of litigation in this case. This Court has accepted the appeal of the present appellants and set aside the previous judgment of the High Court on the ground that the order was appealable so no writ petition was maintainable. As stated above, there is nothing on record on the basis of which it could be said that the respondents have chosen the wrong forum after exercising due diligence and in good faith therefore there was no justification for exclusion of the period spent by the respondents in the wrong forum. It prima facie seems that the negligence was committed by the learned counsel for the respondents, who has chosen the wrong forum and no negligent party can take the benefit of its negligence. The learned Judge of the High Court has also not given any reason that the respondents chose the wrong forum after exercising due diligence.
' The nub of the above discussion is that this appeal is accepted and the judgment passed by the High Court dated 20-6-2006 is hereby set aside.
8 As against the impugned order and decree, petitioners could prefer an appeal, hence, due to availability of an alternate and efficacious remedy the instant writ petition merits dismissal on this short score. Before parting, it is liable to be observed that I might have treated the instant writ petition as an appeal, however, a glance perusal of record reveals that petitioners through their counsel moved an application C for issuance of certified copies of the impugned order and decree dated 26-6-2008, on the same day, which were duly supplied to their learned counsel on 30-6- 2008. The appeal, therefore, could be filed till 28-9-2008, within 90 days, however, the instant writ petition was filed on 27-10-2008, which if treated as an appeal the same is barred by 28 days. The petitioners although stated in para 7 of writ petition that previously obtained certified copies were misplaced , hence, on 22-9-2008, they again applied for fresh certified copies but relevant staff did not respond, hence, another application was moved before District Judge on whose order certified copies were supplied to them on 20-10-2008. I have seen the record of the first appellate Court and neither application dated 22-9-2008 nor any other application was found, hence, version of petitioners belied from the record of the Court below. It appears that certified copies annexed by petitioners were issued on 10-10-2008, however, digit zero was erased everywhere in the official stamp affixed on the certified copies of the impugned order, decree and pleadings, by converting the same into digit six. No any explanation was given in writ petition by petitioners about the aforesaid erased. The petitioners, therefore, have not invoked jurisdiction of this Court with clean hands. It is well-settled principle of law that equitable jurisdiction shall be exercised in favour of a suitor who invoked jurisdiction of the Court with clean hands. An identical point came under consideration before the apex Court in case titled Abid Hussain Jafri and others v. Azad Government and others 1998 PLC (C.S.)
141. At page 108 of the report it was opined as follows:- ' .... This is well-settled principle of law that a person seeking redress of his grievance by resorting to the writ jurisdiction, must come with clean hands. If it is found that the person seeking relief by way of writ petition has no legal or moral case, then irrespective of the fact that the Chief Secretary or for that matter, any other departmental authority is bound to obey the orders of the Prime Minister, the High Court may refuse to issue a writ of mandamus in exercise of its discretionary powers vested in it. As the order which was sought to be implemented by the appellants was passed in violation of the principle of 'audi alteram partem', the High Court could rightly refuse to issue a writ of mandamus for the implementation of the same irrespective of the fact as to whether the Secretary Works was bound to carry out the same or not. The writ jurisdiction cannot be exercised in perpetuation of an illegal order."
' The same view was reiterated by the apex Court in case titled Azad Government and 3 others v.
Abdul Ghaffar Butt and 2 others 1999 PLC (C.S.) 1203 wherein at page 254 of the report it was held as follows:--- "9. The contention of the learned counsel for the appellants that even if the allotment in favour of the appellants is void, that should have been challenged by the respondent before the appropriate authority otherwise it cannot be ignored, does not help his case. Because it was the appellants who filed the writ petition in the High Court and it has been repeatedly held by this Court that a person who seeks relief by invoking writ jurisdiction must come with clean hands; if a person bases his claim on a void order, he is not entitled to any relief in exercise of writ jurisdiction:"
' Similar point came under consideration before the Lahore High Court, in case titled Iqtedar Hyder v. Bank of Punjab through its Chairman and another 2001 MLD 1537. At page 929 of the report it was observed as follows:--- ".... It is also settled principle of law that he who seeks equity must come to the Court with clean hands. It is pertinent to mention here that decree was passed against petitioner on 12-9-1998 and petitioner did not agitate the same before this Court by way of appeal nor filed any objection petition before the executing Court. In this view of the matter I am not inclined to exercise my discretion in favour of petitioner as the law laid down in Nawabzada Ronaq Ali's case (PLD 1973 SC 236)."
9. The crux of above discussion is that preliminary objection raised by the learned counsel for private respondent is prevailed. The instant writ petition is, therefore, dismissed as not maintainable and consigned to record. The costs shall follow the eventualities. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.