' The above titled writ petition, under Section 44 of the Interim Constitution Act, 1974 has been filed to set aside the order passed by learned District Judge, Mirpur dated 25.09.2012, whereby revision petition filed by Munir Ahmed, petitioner herein, has been dismissed.
2. Facts culminating in to, the instant writ petition are that Mst. Zareena Begum, non- petitioner/plaintiff filed a suit for cancellation of gift-deed dated 30.05.2012 regarding suit land measuring 12 kanals 1 marla 7 sarsai, out of khewat Nos. 40,43,44 and 45, village Joian Tehsil Mirpur.
It was alleged by the non-petitioner/plaintiff that Munir Ahmed, the petitioner/defendant procured power-of-attorney dated 11.04.2002 in his favour with fraud and misstatement. Munir Ahmed, the attorney for Mst. Zareena Begum gifted the suit land to non-petitioners Abdul Hameed and Allah- Ditta later on 13.05.2002. Non-petitioner/ plaintiff Mst. Zareena Begum alias Razia Begum filed a suit for cancellation of gift-deed, before the Court of Civil Judge, Mirpur on 29.11.2008. During the proceedings, the petitioner/defendant filed an application under Order WI Rule 11, CPC for rejection of plaint, which was dismissed. The petitioner/defendant filed a revision petition before the Court of District Judge, which also failed, hence, the instant writ petition.
3. It has been averred in the writ petition that Mst. Zareena Begum, non-Petitioner No, 2 appointed the petitioner as her general attorney regarding the suit land vide deed dated 11.04.2005. The petitioner/attorney erected a house consisting of three rooms in the suit land and later on transferred the land to non-Petitioners No, 3 and 4, Abdul Hameed and Allah-Ditta through a registered gift-deed. It has been Aleged that after a lapse of more than 6 years, the nonpetitioner/plaintiff Mst. Zareena Begum filed a suit before the Court of Civil Judge in the year 2008, which was barred by limitation. The petitioner/defendant filed an application for rejection of plaint under Order VII Rule 11, CPC but trial Court dismissed the application on 19.06.2012 without talking in to consideration the facts and relevant law. The petitioner challenged the order of trial Court before the District Judge through revision petition but learned District Judge also did not apply his judicial mind to the facts of the case and the relevant law.
4. The parties have filed written arguments in support of their version. The petitioner has contended that under clause (d) of Order VII Rule 11, CPC when the suit appears from the statement in the plaint to be barred by any law, the plaint has to be rejected. It has further been contended that under Section 91 of the Limitation Act, limitation for cancellation of an instrument is 3 years, so suit filed by the non-petitioner/plaintiff is barred by limitation. It has also been alleged that the non- petitioner/plaintiff did not furnish any explanation for condonation of delay in filing the suit. Learned counsel for the petitioner has relied on 2002 CLC 1517, 2007 YLR 875 and 2006 M LD 810
5. Conversely, Mst. Zareena Begum, the non-petitioner, in her written arguments has contended that her husband has died and she has no offspring. It has been averred that Mst. Zareena Begum gave power-of-attorney to the instant petitioner for protection of her land but the petitioner/defendant taking benefit of the power-of-attorney, transferred tne !And to non- Petitioners No, 3 and 4 through gift-deed. It has further been agitated that a writ petition does not lie against concurrent findings of the Courts below. The non-petitioner has defended the findings of the Courts below by further averring that interim orders of a Civil Court cannot be challenged through writ petition. She has relied on PLD 1982 Lahore 281, PLD 1976 Lahore 1450, KLR 2000 Lahore 3, 1986 CLC 1813 and 1985 PLD 131.
6. I have gone through the written arguments and pleadings of the parties. As a rule of law, a writ petition does not lie against an interim order of a Civil Court unless the order has been passed without A lawful jurisdiction or is perfectly illegal. In the instant case, a Civil Court has jurisdiction to pass an order under Order VII Rule 11, CPC, so it cannot be said that the impugned order has been passed without lawful jurisdiction. It may also be stated that a Civil Court may pass an order irrespective of the fact that order has been rightly or wrongly concluded. The Code of Civil Procedure has provided a hierarchy of Civil Courts for remedy against an order of subordinate Court. So as a rule of law, a writ petition invoking extraordinary jurisdiction of the High Court does not lie against an order passed by a Civil Court whether interim or final. PLD 1985 SC 131 is a case wherein the proposition has been resolved. Hon'ble Supreme Court of Pakistan has recorded that increasing tendency to file constitutional petitions even when the Courts whose orders are challenged had jurisdiction to pass those orders, notwithstanding the fact that it has been held time and again that where a Court has jurisdiction to decide the matter, it can do so rightly or wrongly and the mere fact that the decision on a question of fact or law is not correct, does not necessarily render it without lawful authority and certainly not illegal.
7. The non-petitioner/plaintiff Mst. Zareena Begum has challenged the gift-deed on the basis of fraud and misstatement. This fact, obviously can be proved through evidence only. The Courts below have rightly concluded that it is not a pure question of law, which could result in non-suiting the plaintiff. The citations referred to by the petitioner relate to different points of law. 2006 M LD 810 Lahore provides that plaint can be rejected at initial stage where initiation of litigation would amount to abuse of process of Court. 2002 CLC 1517 Peshawar states that if a plea, is not raised in the pleadings, evidence cannot be led in support of that version. 2007 YLR 875 Karachi states down that parties cannot be allowed to lodge anything beyond their pleadings.
8. As stated earlier, the non-petitioner/plaintiff has challenged the validity of gift-deed on the basis of fraud and misstatement. So, she has a right to adduce evidence in support of her version. The judgments relied upon by the petitioner/ defendant are not relevant to the case at hand.
For the foregoing reasons, the instant constitutional petition does not merit further consideration. It is, therefore, dismissed in liming.