Shujaat Ali Khan, J: - Muhammad Ayub, petitioner of W.P. No.2509/2009 and C.R. No.448/2012, has filed instant application for impleading him as party in W.P.No.2896/2009 (instant petition).
2. Learned counsel for the applicant submits that the applicant has already challenged allotment of land in favour of Muhammad Ramzan (petitioner of instant petition) through W.P. No.2509/2009, thus, he is also a necessary party in the instant matter; that any order passed in the instant petition would have important bearing on the outcome of W.P. No.2509/2009, hence he has every right to be heard prior to passing any order in the instant petition and that the order impugned in this petition is the same which is subject matter of W.P. No.2509/2009, thus, it is in the interest of justice that the applicant be allowed to join the proceedings of instant petition.
3. After hearing learned counsel for applicant and going through the documents appended with this application and going through the contents of instant petition I have observed that Muhammad Ramzan has filed the instant petition grousing against fixation of sale price by the Settlement Authorities according to the rate prevalent in the year 2009 instead of that prevalent at the time of filing of application by his mother. It is crystal clear that dispute regarding fixation of sale price is between the vendee and the state functionaries and the applicant, in no way, is either necessary or proper party inasmuch neither his presence before the Court is necessary for just decision of the dispute agitated in the instant petition nor the matter cannot competently be decided in his absence. Consequently, I see no merits in this application which is dismissed accordingly.
MAIN CASE.
4. Through this single judgment I intend to dispose of instant petition as well as W.P. No.2509/2009 and C.R. No.448/2012 having commonality of facts inasmuch as in the instant petition the petitioner has assailed order dated 10.01.2009, passed by the Member (Judicial-V)/Chief Settlement Commissioner, Board of Revenue, Punjab, to the extent of fixation of sale price of the land measuring 257 Kanals and 5-Marlas situated within the revenue estate of Mauza Shera Baghban Otar Tehsil & District Bahawalnagar whereas in W.P. No.2509/2009, Muhammad Ayub (hereinafter to be referred as the respondent) has assailed aforesaid order, dated 10.01.2009, whereby land has been sold to the petitioner in terms of scheme framed by the government as per section 3 of The Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 (the Act 1975) while C.R.
No.448/2012 has been filed by the respondent assailing order, dated 28.09.2010, passed by the learned trial Court whereby while accepting the application of the petitioner, filed under Order VII rule 11 CPC, the plaint of the declaratory suit filed by the respondent was rejected against which he filed an appeal but without any success as the same was dismissed by the learned Appellate Court through judgment dated 03.05.2012.
5. Briefly put, the facts as divulged from these petitions, are that one Nizam Din son of Muhammad Usman was allotted land through mutation No.12/23 dated 27.04.1961 in village Shera Baghban Utar Tehsil & District Bahawalnagar on the strength of R.L.II No.23 & 24 which he, later on, transferred in the name of Sheikh Manzoor Ahmad son of Hussain Bakhsh through registered sale deed dated 26.07.1962 who further alienated the same to one Subedar Ibrahim Khan son of Illahi Bakhsh through mutation No.203 dated 28.08.1962 who further sold the same to one Umar Din through registered sale deed dated 27.07.1963. Upon payment of requisite dues the share of Umar Din was redeemed through mutations No.272 & 273, attested on 02.06.1967. After having been declared as full fledge owner said Umar Din transferred his share in the name of Latif Begum (mother of the petitioner) through mutation No.279, dated 08.01.1968. On 14.02.1974, a Mukhbri petition was moved by Imam Din etc. Before the Settlement Authorities and upon conclusion of inquiry on the said petition the land from the name of Latif Begum was cancelled by the Additional Settlement Commission vide order dated 24.07.1976 which was assailed by Latif Begum before this Court through W.P. No.1183-R-1976 but without any success as the same was dismissed through order dated 09.04.1989 against which she filed CPLA before the august Supreme Court of Pakistan which was converted into Civil Appeal No.1380-1990 and was dismissed through judgment dated 10.01.1993. After dismissal of her appeal by apex Court of the country said Latif Begum submitted an application before the Settlement Authorities for purchase of land under her possession according to the scheme announced by the government in terms of section 3 of the Act 1975 which was accepted by the Member (Judicial-V)/Chief Settlement Commission, Board of Revenue, Punjab, through order dated 10.01.2009 directing the petitioner to deposit the prevalent market price in addition to 10% surcharge. Aggrieved of fixation of market price according to the rate prevalent in the year 2009 the petitioner has filed instant petition whereas the respondent has filed W.P.
No.2509/2009 challenging validity of aforesaid order dated 10.01.2009. Besides that the respondent has also filed C.R. No.448/2012 against acceptance of application submitted by the petitioner, under Order VII rule 11 CPC and rejection of plaint of his declaratory suit. In this backdrop all these matters are being decided through this consolidated judgment.
6. Mr. Nadeem Iqbal Chaudhary, Advocate, representing the petitioner in the instant petition, submits that according to the Memorandum issued by the Secretary (Settlement & Rehabilitation), Board of Revenue, Punjab, Lahore, persons who gave their option for purchase of state land under their possession by or before 31.10.1999 were to be charged at the rate of Rs.100/- per Produce Index Unit but while accepting the application of the petitioner for purchase of land under his possession the Member Board of Revenue/Chief Settlement Commissioner has illegally directed him to deposit sale price according to the price prevalent in the year 2009. Adds that similar question came under discussion before this Court in W.P. Nos.68-R-2009, 151-R-2009, 163-R-2009, 188-R-2009, 173-R-2009 and 161-R-2009 wherein it has been decided that vendee is liable to pay price according to the rate prevalent in the year when the application for purchase of the land was submitted. Further adds that order passed in the said petitions having not been challenged has attained finality. Moreover, orders passed in the aforementioned Writ Petitions have already been implemented by the relevant authorities.
7. Mian Mohsin Rasheed Advocate in support of C.R. No.448-2012 submits that after dismissal of earlier application filed by Muhammad Ramzan, under Order VII rule 11 CPC, he was debarred to file a fresh one on the same subject as the same was hit by the principle of res-judicata; that as allegation of fraud, misrepresentation and concealment was levelled in the plaint the same could not be rejected straightaway without recording evidence of the parties; that after dismissal of the earlier application filed by Muhammad Ramzan Issues were framed and the evidence of the plaintiff was recorded, however, when the petitioner/defendants were called to lead their evidence they instead of doing so filed an application under Order VII rule 11 CPC which was accepted by the trial Court without looking into the fact that similar application had already been dismissed; that though order of the trial Court accepting application under Order VII rule 11 CPC was assailed before the lower Appellate Court but the said appeal was dismissed in a slipshod manner; that from the very first day case of the respondent is that R.L.II in the name of his predecessor-in- interest were stolen away by Nizam Din son of Muhammad Usman but both the forums below have not attended to the said fact; that application of the respondent is already pending adjudication before the Chief Settlement Commissioner, thus, he has legitimate cause of action to file a suit, therefore, concurrent findings of the fora below regarding acceptance of application of Muhammad Ramzan, are wholly untenable. Relies on Mustafa Kamal and others v. Daud Khan and others (PLD 2004 SC 178), Mst. Najum-un-Nisa Zahra through Attorney v. Syed Ijaz Hussain Shah (2015 CLD 1095), Shafqat Rehman v. Mst. Mahjaben and 27 others (2014 M LD 481), M/s Shezan Services (Pvt.) Ltd. Through Assistant Accounts Manager v. Federation of Pakistan through Secretary, Ministry of Defence and 2 others (2011 CLC 1573), Haji Mullah Dad Karim and others v. Mir Assa Gul and 22 others (2010 YLR 1933), Karachi Catholic Cooperative Housing Society Ltd. v. Chrisol Miranda and others (2011 M LD 1462) and Naim Metal and Plastic Works and another v. Mst. Azra Vaqar (1988 CLC 2164).
Learned counsel in support of W.P. No.2509/2009 submits that as application of the respondent for allotment of land in question is pending adjudication before the Chief Settlement Commissioner, the same could not be allotted to Muhammad Ramzan and that it was not justified to sell the land to Muhammad Ramzan after failure of his mother upto the august Supreme Court of Pakistan.
Learned counsel while opposing the prayer of instant 19 of the Displaced Persons (Land Settlement)
Act, 1958 instant petition is not maintainable.
8. Mr. Sajjad Hussain Kanju, Advocate, representing respondent No.7 in C.R. No.448/2012, while defending the impugned verdicts of fora below, submits that since the fate of R.L.II No.23 & 24 was decided by apex Court of the country the plaint of the suit filed by the respondent was rightly rejected by the trial Court; that as the land in question was no more in the name of respondent No.7 and other subsequent vendees on the strength of R.L.II No.23 & 24 the respondent had no cause of action to file the suit; that after repeal of Settlement Laws in the year 1975 no exception can be taken against decision of Settlement Authorities except in the cases which fall within the category of pending matters and the dispute agitated by the respondent in his suit having not been covered under the said category was rightly nipped in the bud by the trial Court; that according to the statement of Maqbool Ahmad, Naib Tehsildar, who was produced by the plaintiff/respondent as PW-2, name of Nizam Din son of Shera, Caste Mughal was not available rather R.L.II No.23 & 24 were issued in the name of one Ameer Khan son of Oday Chand, thus, the very basis of suit fell to the ground, thus, no exception can be taken to the orders challenged in the revision petition; that falsity of the averments of the plaint of the suit filed by the respondent is clear from the fact that in a civil suit he not only challenged order of this Court passed in the Writ Petition filed by Latif Begum against cancellation of land from her name but has also assailed vires of judgment of apex Court of the country.
9. Mian Mohsin Rasheed, Advocate, while exercising his right of rebuttal, submits that after coming to know that verdicts of this Court as well as that of the apex Court of the country could not be challenged in the suit, he submitted an application under Order VI rule 17 CPC seeking permission to amend his plaint which was allowed and as a result he filed amended petition scoring off his prayer to the extent of challenging verdicts of this Court as well as that of the august Supreme Court of Pakistan.
10. Learned Assistant Advocate General toes line of Mr. Sajjad Hussain Kanju, Advocate, and prays for dismissal of revision petition as well as W.P. No.2509/2009. Adds that sale price having been fixed according to the Policy in vogue, instant petition also merits dismissal.
11. I have heard learned counsel for the parties at considerable length in addition to scanning the record with their able assistance as well as going through the case law sited at the bar.
12. Firstly taking up instant petition, I have observed that the Secretary (Settlement & Rehabilitation), Board of Revenue, Punjab, Lahore, through Memorandum dated 28.12.2002, addressed to all the Executive District Officers (Revenue) and District Officer (Revenue) inter-alia conveyed as under: - "It has been decided that the cases of other occupants who had given option by 31-1-1999 for purchase of land at the rate of Rs.100/- per produce index unit be decided accordingly. Such persons who apply for purchase after 31.1.1999 for them Rs.750/- per produce index unit will be the price and they can exercise option by 30-6-2003. The Government has accordingly fixed the date for submitting option by the occupants as 30-6-2003."
A perusal of afore-quoted portion from the Memorandum, under discussion, shows that the competent authority decided to charge the vendee at the rate of Rs.100/- per Produce Index Unit, thus, the observation of the Member Board of Revenue/Chief Settlement Commissioner regarding deposit of price according to the rate prevalent in the year 2009 is not justified. Moreover, learned counsel for the petitioner has referred to orders of this Court passed in various Writ Petitions wherein it has been decided that in the matters where the application was submitted by a vendee on or before 31.1.1999 the sale price was to be assessed at the rate of Rs.100/- per Produce Index Unit. The said orders having not been assailed any further still hold the field.
13. Taking up W.P. No.2509/2009, I am of the view that irrespective of pendency of any application by Muhammad Ayub-respondent the Settlement Authorities were competent to sell the land to Muhammad Ramzan as per scheme framed by the government in terms of section 3 of the Act 1975. Had the said land been transferred in the name of Muhammad Ramzan on the strength of R.L.II No.23 & 24, the situation would have been entirely different but a perusal of judgment of apex Court of the country shows that as and when the government framed any policy regarding sale of the land under possession of different persons, case of the petitioner would also be considered. Not only case of the petitioner is covered under the scheme but the observations contained in the judgment of august Supreme Court of Pakistan also support his version. In my humble opinion neither name of the respondent is present in the revenue record nor is he in possession of the land in dispute, thus, he has no locus standi to file the instant petition.
14. Insofar as argument of the learned counsel for the respondent regarding pendency of his application for allotment of land against unsatisfied units is concerned, suffice it to observe that he can pursue his matter before any forum of his choice but the said fact can hardly be used to nullify an order passed in favour of Muhammad Ramzan-petitioner.
15. Now taking up C.R. No.448-2012, I have noted that crux of the arguments advanced by learned counsel representing the respondent is that firstly after dismissal of his earlier application under Order VII rule 11 CPC the subsequent application filed by Muhammad Ramzan, the petitioner, was not maintainable and secondly after framing of Issues and recording of evidence it was not open for the trial Court to reject the plaint of the suit filed by Muhammad Ayub. In this regard, I find myself in agreement with the learned counsel to the extent that principle of res-judicata is applicable to miscellaneous applications as well, however, at the same time powers of the Court to reject plaint of a suit when any of the conditions enumerated under Order VII rule 11 CPC are fulfilled, cannot be abridged. The Court can exercise the said power irrespective of the fact whether any application has been filed or not. In this regard, I stand guided by the verdicts reported as Haji Abdul Karim and others v. M/s Florida Builders (Pvt.) Ltd. (PLD 2012 SC 247), Raja Ali Shan v. M/s Essem Hotel Limited and others (2007 SCM R 741), Gulistan Textile Mills Ltd. v. Askari Bank Ltd. And others (PLD 2013 LHR 716), Shahzada v. Khairullah and others (2012 CLC 773), Gul Muhammad Mir Bahar v. National Logistic Cell, Ministry of Defence through Commandar and 2 others (1999 CLC 2032) and Lahore Cnatt. Cooperative Society Ltd. v. Muhammad Asif (1998 M LD 1850).
Likewise, the second plea raised by learned counsel for the respondent that after framing of Issues and recording of evidence the trial Court could not reject the plaint of the suit is not worth consideration for the reason that a Court can reject plaint of a suit at any stage prior to announcement of judgment irrespective of framing of Issues and recording of evidence. The only condition precedent for exercise of such powers is fulfillment of any condition enumerated under Order VII rule 11 CPC.
16. It is admitted position that fate of R.L.II No.23 & 24 has already been decided upto the august Supreme Court of Pakistan. It is also not denied that the land initially allotted in the name of Nizam Din and finally transferred in the name of Latif Begum, mother of the petitioner, was cancelled by the Settlement Authorities on the Mukhbari Petition filed by Imam Din etc. Which order remained intact upto the apex Court of the country. In this backdrop, I venture to adjudge the validity of orders impugned in the revision petition. To resolve the controversy, in my humble view a perusal of prayer of the suit filed by the respondent is worth consideration which for facility of reference is reproduced herein below:- {{ URDU TEXT }} A perusal of afore-quoted prayer clause of the suit filed by the respondent shows that he sought decree to the effect that he be declared as owner of the suit land on the basis of R.L.II No.23 & 24 and mutations No.202, 20, 217, 273, 272, 279 & 591 be declared as illegal, unlawful and inconsequential upon his rights. Admittedly, after cancellation of land from the name of Nizam Din, the land has already been resumed by the government and the same has further been allotted to the petitioner pursuant to the policy issued by the government of Punjab in terms of Section 3 of the Act 1975. Moreover, according to Muhammad Iqbal, Naib Tehsildar, who was produced by the respondent himself as PW-2, stated in his examination-in-chief that R.L.II No.23 & 24 were issued in the name of one Ameer Khan son of Oday Chand. Further, during the course of cross-examination he frankly stated that name of Nizam Din son of Shera was not entered in the said documents. After surfacing of the said fact on the scene the trial Court rightly rejected the plaint of suit filed by the respondent while exercising powers under Order VII rule 11 CPC suo motu.
17. Considering from another angle, this Court, being cognizant of the matter through the instant petition cannot shrug off his liability to see as to whether any suit pending before the lower forum was filed on the basis of valid cause of action or not and after having come to know that the fate of R.L.II No.23 & 24 having been decided by the august Supreme Court of Pakistan, the suit filed by the respondent cannot be allowed to proceed simply for the reason that subsequent application filed by the petitioner was not maintainable. This Court enjoys power to look into the maintainability of any matter before any lower forum irrespective of the fact as to whether any objection in that regard has been taken or not. If any case law is required, a reference can safely be made to the case of Raja Ali Shan (Supra) wherein it has inter-alia been held by the august Supreme Court of Pakistan as under: - "The Court can, and, in most cases hear counsel on the point involved in the application meaning thereby that the Court is not only empowered but under obligation to reject the plaint, even without any application from a party, if the same is hit by any of the clauses mentioned under rule 11 of Order VII, C.P.C."
18. Even otherwise, according to Article 189 of the Constitution of Islamic Republic of Pakistan, 1973, every verdict of the august Supreme Court of Pakistan has binding force on all the organs of the State and the learned Civil Judge, seized of the matter, could not proceed with the matter in utter disregard of judgment of the august Supreme Court of Pakistan.
19. Mian Mohsin Rasheed Advocate, representing the petitioner of W.P. No.2509/2009, C.R.
No.448/2012 has repeatedly argued that since allegation of fraud was alleged in the plaint it was not open for the trial Court to reject the plaint straight-away. In this regard, I am of the view that when the very basis of the suit was not tenable the plaint thereof was rightly rejected irrespective of any allegation of fraud or misrepresentation. It is imperative to note that after repeal of settlement laws by virtue of the Act 1975 interference with any order passed by the Settlement Authorities is prohibited and only pending matters can be adjudicated upon.
20. Insofar as the case law cited by Mian Mohsin Rasheed Advocate is concerned, suffice it to observe that in the peculiar background of case in hand the same is not applicable inasmuch as in the cases of Mustafa Kamal and others, Mst. Najum-unNisa Zahra through Attorney, M/s Shezan Services (Pvt.) Ltd. Through Assistant Accounts Manager and Karachi Catholic Cooperative Housing Society Ltd. (Supra) it has been held that principle of res-judicata is applicable even to the miscellaneous applications, however, it has nowhere been mentioned that when a Court comes to the conclusion that a cause of action, on the basis whereof any proceedings were filed, ceases to exist, its powers under Order VII rule 11 CPC, to reject plaint of a suit comes to an end when an application in that regard has already been dismissed. Insofar as case of Shafqat Rehman (Supra) is concerned, the main controversy in the said case was as to whether the question of fraud, res- judicata and limitation can be decided without recording of evidence whereas in the instant matter, after determination of the fate of R.L.II Nos.23 & 24 by apex Court of the country, the same could not be made ground to lodge proceedings before any other forum including Civil Court.
Likewise, in the case of Haji Mullah Dad Karim and others (Supra) it was decided that after dismissal of earlier application, second application on the same subject could not be entertained but in the case under discussion when the very cause of action on the basis whereof the suit was filed by the respondent ceases to exist, the continuation of proceedings on the said suit was just a nullity in the eye of law. As far as case of Naim Metal and Plastic Works and another (Supra) is concerned, in pith and substance the query responded in the said case revolved around the fact that the principle of resjudicata is applicable even to the questions/grounds which were left out earlier but the same being polls apart from the query raised in this petition is of no help to the petitioner.
21. As a necessary corollary to the discussion made in the fore-going paragraphs, instant petition (W.P. No.2896/2009) is accepted and the Board of Revenue is directed to issue Challan Form to the petitioner, Muhammad Ramzan, in terms of order passed in W.P. No.68-R/2009 whereas Writ Petition No.2509/2009 and Civil Revision No.448/2012 are dismissed. Parties shall bear their respective costs.