' SYED MUHAMMAD FAROOQ SHAH, J.---This revision application is directed against the impugned judgment dated 27-5-2006 and decree dated 30-5-2006, passed by the learned District Judge, Tharparkar @ Mithi in Civil Appeal No. 06/2006, thereby dismissing the appeal of the applicants/plaintiffs and maintained the order dated 31-1-2006, passed by the learned Senior Civil judge, Mithi, in first class Suit No. 81/2005, whereby the learned trial Court while deciding the application under Order XXXIX Rules 1 and 2, rejected the plaint under Order VII, Rule 11, C.P.C.
2. Precisely, facts giving rise to the instant Revision Application are that the applicant filed a suit for declaration and permanent injunction, pleading therein that they used to cultivate the agricultural land bearing Survey No. 12(2.21 acres), 13 (2.15 acres) and 58 (6.32 acres) total area 11.28 acres, situated in Makan Gorwari, Tapo Rahmki Bazaar, Taluka Diplo, District Tharparkar That the said property was purchased by the applicant from respondent/defendant No. 1 through sale agreement duly attested by Assistant Mukhtiarkar and. TCM, Diplo for a consideration of Rs. 20,000 on 6-3-1988, which was later-on revised on 22-3-1988, with the consent of both the parties, in presence of their witnesses and fresh sale agreement of suit land for a consideration of Rs.125,000 was executed before the same Mukhtiarkar and such entry No. 23 was made in the Revenue Record and possession was handed over to applicants, who are enjoying the same and paying land revenue to the Government. The respondent No. 1, being aggrieved to the said entry, filed suit No. 46/1998 but later-on withdrew the same due to intervention of respectable persons and witnesses of the agreement. It appears that the appeal before Revenue department was filed by DDO Revenue Diplo against the applicants was decided ex-party against the applicants, who challenged the order passed on 29-9-2004, before District Officer (Revenue) who after inquiry and perusal of the record allowed the appeal vide order dated 9-6-2005 and set aside the order of respondent No.3. The respondent No.1, preferred a revision before respondent No.5, who without affording opportunity of hearing to the applicants, allowed the said revision vide order dated 12-10- 2005. The said order, according to applicant, was illegal as such the applicants filed a Suit No. 81/2005, assailing the order passed by respondents Nos. 3 to 5 for seeking declaration against the said orders and also sought 'declaration in their favour. Along with the suit,' an application under Order XXXIX Rules 1 and 2, C.P.C. R/w section 151, C.P.C. Duly supported by affidavit was filed.
3. The respondent No. 1 filed his written statement counter affidavit to injunction application, the trial. Court while hearing injunction application, rejected the plaint under Order VII, Rule 11, C.P.C.
Vide order dated 31-1-2006.
4. In his written statement, the respondent No. 1 has denied execution of alleged sale agreement and possession of the plaintiff over the suit property. He has also denied the entries in the record of rights to be legal but admitted filing of appeal before DDO (Revenue) and subsequent order by EDO (Revenue). Respondent No. 1 has also raised plea regarding non-maintainability of suit.
5. Arguments advanced from both sides are considered and the material available on the record has also been perused.
6. By impugned order dated 31-1-2006, the learned Senior Civil Judge, Mithi, has rejected the plaint of first class Suit No. 81/2005. The penultimate paragraph of the said order is reproduced as under:- - "I have considered the arguments of learned counsel appearing for the parties and have perused the averments made by plaintiff in his suit. It appears that plaintiff has failed to pray for complete relief particularly not challenging the orders passed by DDO (R) and EDO (R), therefore, the suit is hit by Order II Rule 2, C.P.C. Accordingly, the plaint is rejected under Order VII, Rule 12, C.P.C.
Consequently, the application under. Order XXXIX, Rule 1 and 2, C.P.C. Becomes infructuous, which stands dismissed".
7. When the aforesaid order was impugned before the learned Appellate Court by the applicants/plaintiffs in Civil Appeal No.6/2006, the learned District Judge, Tharparkar @ Mithi, by maintaining the order passed by the trial Court formed opinion that the proper course for plaintiff/appellants (applicants) was to approach the Court for specific performance of contract in respect'of said agreement, allegedly executed by defendants/respondents. He has also observed that applicants have sought the declaration to be lawful and legal owners of suit land on the basis of sale agreement, allegedly executed somewhere in 1988 and said sale agreements were produced before the Mukhtiarkar, who effected mutation on the basis of sale-agreement, is not a documents of title and could not form basis for grant of declaration under section 42 of Specific Relief Act, as held in 2005 SCM R P-969; the learned appellate Court his also observed that the plaint can be rejected without filing of application under provision of Order VII, Rule 11 even at interlocutory stage.
8.
9. #TBS
10. A
11. B
12. #TBE
13. It is well settled that plaint can be rejected only if it did not disclose cause of action or the same is barred by any law as enumerated in clause (a) and (d) of Rule 11 of Order VII, C.P.C. Though, in order to invoke the applicability of clause (a), the Court shall look into the contents of the plaint only and shall examine the plaint on its face value. If the plaint by itself indicates any infirmity enumerated in-clauses (a) to (d) of Rule 11 of Order VII, C.P.C., then the Court shall order for rejection of the plaint as the fruitless litigation requires to be buried at its inception, to avoid wastage of time of Courts and unnecessary harassment of the opposite party. In the case of Haji Allah Bukhsh v. Abdul Rehman and others (1995 SCM R 459), the defence set up and documents annexed with the written statement cannot be looked into for rejection of plaint. It shall be advantageous to reproduce the prayer clause of Suit No. 81/2005 as under:--
(a) To declare that the defendant No.1, sold suit-land to the plaintiffs and received full consideration amounting to Rs.125,000 and executed sale agreement and the same was attested by the Assistant Mukhtiarkar and T.C.M., Diplo, on dated 22-3-1988, and the possession was handed over to the plaintiffs since then they are in cultivating peaceful possession, without any interference.
(b) Declare that the entry kept in record. Of rights bearing entry No.23, dated 25-6-1988, kept by defendant No.2, is legal, proper and in accordance with law, where the orders of defendants Nos.3 and 5, in appeal and revision are illegal ab initio, and void and against the law, facts and natural justice.
(c) Declare that the plaintiffs are bona fide purchasers, legal and lawful owners of suit land, the defendant No.1, has no right or title over the suit land, and that the act of defendant No.1, is illegal, mala fide against the law, facts and natural justice.
(d) Declare that the order of defendant No.4, is legal and proper.
(e) Grant permanent injunction against the defendants restraining and prohibiting them from interfering in the record of rights and in peaceful cultivating possession of plaintiffs, through themselves, their agents, servants, subordinates, men, whosoever, directly or indirectly whatsoever in any manner except due course of law.
(f) costs of the suit be borne by the defendants.
(g) Grant any other relief, which this honourable Court may deem fit and proper."
9. Proceedings before Revenue authority transpire that by order dated 29-9-2004, the Deputy District Officer (Revenue) Taluka Diplo, has cancelled entry, respecting Survey Nos. 12, 13 and NK No. 58 on PF XV as well as VF VII-B (entry No. 03), in the name of applicants.
The applicants have assailed the said order before District Officer, (Revenue), Tharparkar, Mithi, who by order dated 29-6-2005, has set aside the order passed by DDO (R) with observation that the aforesaid order of DDO (Revenue) Taluka Diplo, was allegedly passed ex parte, abruptly behind the back of appellant (applicants), under orders of transfer, thus it per se reflects as fallacious, faulty and non-maintainable in the eyes of law and, thereby the order. Of Deputy District officer (R)
Taluka Diplo, dated 29-9-2004, was set aside, whereby the entries in the record of right P.F. XV.B.
9. 4792/23 and form VII-B(entry No. 3) dated 28-7-1999, in the name of applicants was maintained to stand good.
10. Perusal of the record further reveals that the said order dated 9-6-2005 by District Officer (Revenue) was challenged before executive District Officer (Revenue) Tharparkar Q Mithi, who after hearing the parties, observed that the sale agreement in respect of Survey Nos.,- 12, 13 and 58, of the petitioner designedly attested by Assistant Mukhtiarkar, Diplo-on 22-3-1998 is purely forged and fabricated one on the very face of affidavits. He has set aside the earlier- order of District Officer (Revenue) with the following observation:- "On the contrary, as a statutory Law, in case of every sale of property valued upto rupees 100, Statement is to be recorded on Statement-Rook, maintained for the purpose, after preparation of new record (V.F.VII-A/B), while in case of Sale for more than Rs.100, the sale-deed is to registered, compulsorily. While in the instant case, the mis-chief-monger Tapedar RehmkiBazar, having obtained Order of Mukhtiarkar Diplo, on defunct P.F.XV. On 25-6-1988 as per above Sale- Agreement allegedly attested by Assistant Mukhtiarkar Diplo, on 22-3-1988, maliciously transcribed the said entry of P.F.XV. B.No.4792A28 (entry No.23) on V.F. VII-B' (entry No. 3) on 28-7- 1989, illegally, over riding the earlier entry in V.F.VII-A, in the name of petitioner. Which was allegedly verified by the Mukh: Diplo inadvertently."
11. It appears that both parties have exhausted their legal efficacious adequate remedy available to them by filing the relevant proceedings before the Revenue Department as mentioned supra. It - also appears that there are conflicted views of revenue department with regard to the entries made in the record of right and genuineness of the said entries or otherwise, cannot be determined without adducing evidence, more particularly, the respondent No. 1 has contested the suit by filing his written statement and counter affidavit to the application under Order XXXIX Rules 1 and 2, C.P.C. Both lower Courts did not point out that in the prayer clause necessary relief was sought by the plaintiff in his suit as it appears that he has prayed for whole claim, therefore, c provisions of Order II, Rule 2, C.P.C. Cannot be invoked.
12. It is settled that principal object behind all legal formalities is to safeguard the paramount interest of justice as in the interest of natural justice, the Court to import certainty, consistency and uniformity to D administration of justice and to secure it against arbitrary, errors of individual judgment and mala fide. In KashiParsad v. Bhanshidar (AIR 2001 Maddhya Prdesh 185), in suit for declaration and possession by virtue of temporary partition, concurrent findings were recorded by Courts on the basis of evidence that plaintiff has 1/7th joint share in disputed property but this fact, however, was not specifically pleaded in relief clause of plaint. It was held that appellate Court should not have refused the same on technical ground that it was not specifically sought for in the relief clause of plaint, particularly, in order to avoid further vexatious litigations between the parties.
In the case of Javed lqbal's case (PLD 2006 SC 66), leave to appeal was granted by the apex Court to consider the question, inter alia as to whether a suit for declaration seeking ownership was competent on the basis of agreement to sale, whether form of a suit was a technical and the same be converted into a suit for specific performance of contract in the absence of any prayer by Respondents to convert the suit for declaration into suit for specific performance without seeking any amendment for 12 years.
13. In Lachman Das v. Serva nand (1995 SCM R 435) while dealing with the powers of this Court, it was held that nothing in the rules would be deemed to limit or otherwise affect the inherent powers of the Court to make such orders as may be necessary in the ends of justice or to prevent the abuse of process of the Court. In 1997 SCM R 1692 (Province of Punjab v. Abdul Majeed), principle of law was expounded by the apex Court in the following words:-- "The power conferred on the Appellate Court under Order XLI, Rule 33, C. P.C. Is of the widest amplitude and in exercise of this power the Appellate Court is competent to grant relief to a party, notwithstanding the fact that such party failed to prefer an appeal or submit any cross- objection. However, in equity, justice and good conscience and the fact that withholding of relief would result in a contradictory, unworkable or impossible order/decree. Therefore, when the Appellate Court reaches a conclusion in a case that by withholding the relief to a non-appealing respondent or to a respondent who omitted to file cross-objection grave hardship or injustice is likely to result to it or that the judgment or orders will be rendered contradictory, it will be a good ground for exercise of power under Order XLI, Rule 33, C.P.C. To grant appropriate relief to a non- appealing respondent or to a respondent who omitted to file cross-objection in the appeal."
14. Crux of the aforementioned discussion is that the impugned order of the Appellate Court is not sustainable in law and is hereby set aside. Resultantly, the trial Court is directed to proceed with this old matter, on its own merits and expedite to conclude the trial, preferably within a period of six months.
15. Revision Application is disposed of in the manner indicated, above.