' SARDAR ABDUL HAMEED KHAN, J.---This appeal has been directed against the order of District Judge Muzaffarabad dated 27-8-2010, whereby the suit for recovery of Rs.3,00,000 filed by the plaintiffs was rejected under Order VII, Rule 11 of C.P.C.
' The precise facts giving rise to the instant appeal are that the plaintiffs filed a suit for money amounting to Rs.3,00,000 against the defendants in the Court of District Judge Muzaffarabad. It was averred by the plaintiffs that the land comprising old survey Nos. 84, 85, 86 87, and 126 measuring 14 Kanals 16 Marlas situated in Mauza Khamdhrang (Shaukat Lines) Tehsil and District Muzaffarabad was in the possession and ownership of plaintiffs, before that this land was in the possession and ownership of the mother of plaintiffs Mst. Qasim Jan. It was also stated in the plaint that Abdul Wahab son of Ghulam Hussain father of defendants Nos. 1 to 8 got allotted the land in dispute on 21-1-1958 secretly and also obtained proprietary certificate with malicious practice, and then secretary transferred the suit land to one Shafiq-ur-Rehman Pervaiz son of Fazal-urRehman resident of Chatter. Dome (defendant No. 9) in lieu of Rs.2,00,000 vide sale deed dated 24-7-1998 without possession, as the possession was with the plaintiffs and said Shafiq-ur-Rehman also got attested mutation No. 143 in collusion with the Patwari. The plaintiffs stated that Shafiq-ur-Rehman did not pay the amount of sale deed, therefore, the defendants Nos. 1 to 8 filed a suit for cancellation of sale deed dated 24-7-1998 in the Court of Senior Civil Judge Muzaffarabad on 5-9- 2000. During the trial, the defendants Nos. 1 to 8 moved an application for withdrawal of the suit and permission to file afresh. This application was allowed and the permission was granted by the said Court on the payment of costs of Rs.200 on 9-6-2001.. The defendants Nos. 1 to 8 filed fresh suit on 30-3-2002 stating therein that defendant No. 9 got the sale deed dated 24-7-1998 registered fraudulently and without payment the amount, therefore, the same may be cancelled. It is stated that the land in dispute was remained in litigation between the parties for a long time in different courts upto Supreme Court. The plaintiffs stated that the defendants Nos. 1 to 9 asked the mother of the plaintiffs that they want to sale the land in dispute in lieu of Rs.13,30,000 so pay the 1/4th of the consideration amount and they will sale the whole property. The mother of the plaintiffs on the next day, paid Rs.3,00,000 to defendant No. 1, in the presence of witnesses, but the defendant No. 1 failed to act upon the compromise deed dated 9-2-2001 and the defendants Nos. 1 to 8 through defendant No. 1 transferred the same suit land to defendant No.
9. The plaintiffs prayed that a decree for recovery of Rs.3,00,000 may kindly be passed in favour of the plaintiffs and against the defendants.
' During the proceedings, the defendants moved an application under Order VII, Rule 11, C.P.C. After hearing the parties, the learned District Judge Muzaffarabad vide his judgment dated 27-8-2012, rejected the suit, hence this appeal.
' Syed Nazir Hussain Shah Kazmi Advocate, the learned counsel for petitioner argued that an agreement executed by Sakina Bibi on 20-2-2001 in favour of Qasim Jan, the amount of Rs.3,00,000 was received by respondent Khurshid and others because the allotment of Mr. Wahab was cancelled and in the presence of judgment of cancellation of allotment, the suit in question was filed. The learned counsel argued that the suit was rejected under Order VII, Rule 11, C.P.C. The impugned order dated 27-8-2012 is not tenable in the eyes of law as being contrary to law as well as against the facts of the case, the learned District Judge also fell in error of facts. The learned counsel reiterated the contents of memo of appeal and grounds enumerated in it in details and contended that these facts and grounds narrated in the memo of appeal may be taken as integral part of his arguments. The learned counsel while referring the following case law maintained that the facts narrated in the plaint and rebutted by respondents are subject to proof by either side and the rejection of the plaint under clause (d) of Rule 11 of Order VII, C.P.C. Is not warranted by law:--
1. 2003 SCM R 1284
3. 2004 M LD 1081
4. 2003 SCR 37 ' Mr. Muhammad Yaqoob Khan Mughal Advocate the learned counsel for respondents rebutted the arguments advanced on behalf of petitioners. The learned counsel argued that allotment of Khani Zaman was of 1950 and Javaid Ayyub and others are the legal heirs of Khani Zaman. The learned counsel supported the impugned order and argued that the appellants/plaintiffs have established all the case with substantial proof wherein it is obvious that the matter has been previously adjudicated upon on merits in multi round litigation. The learned counsel referred the following case-law:--
(1) 2012 SCR 135
(2) 2003 YLR 1752 ' The learned counsel argued that the appellants have reopened the dispute which has been finally concluded in the earlier judgments of the superior Courts, hence the appeal may be dismissed with heavy costs.
I have gone through the record of the case and keeping in view the contentions of the learned counsel for the parties, it reveals that though the plaint which is consisting of 19/20 paras and plaintiffs/ appellants have given a new direction/cover to old and decided facts and tried to define that the present plaint is being filed on different cause of action than that has already been decided. There is no quarrel with the submission of the learned counsel for appellants/plaintiffs that the application under Order VII, Rule 11, C.P.C. Is not a free style provision of law. It is restricted to 4 conditions/grounds. As the point has been agitated by the respondents that this is a case which is hit by principle of res judicata has substance in it for the reason that the plaintiffs/appellants were bound by Order II, Rules 1 and 2, C.P.C. To state their whole claim in the suit filed before the Court in earlier round of litigation. The matter has been decided by operation of Order VII, Rule 11, C.P.C. Clauses (a) and (d) read with Order II, Rule 2, C.P.C. A minute scrutiny of the former pleadings of the parties and the judgments of all the Courts and lastly a comparative reading with the contents of the present plaint, it leaves no room to ascertain that the suit is barred by law. For convenience sake Order II, Rule 2 and Order VII, Rule 11, C.P.C. Is reproduced hereunder:-- ORDER II FRAME OF SUIT
1. Frame of suit. Every suit shall as far as practicable be framed so as to afford ground for final decision upon the subject in dispute and to prevent further litigation concerning them.
2. Suit to include the whole claim. (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.
' Relinquishment of part of claim. (2) Where a plaintiff omits to sue in respect of or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.
' Omission to sue for one of several reliefs. (3) A person entitled to more than one relief in respect of the same cause of. Action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.
' Explanation. For the purposes of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action.
' Illustration ' A lets a house to B at a yearly rent of Rs.1,200. The rent for the whole of the years 1905, 1906 and 1907 is due and unpaid. A sues B in 1908 only for the rent due for 1906. A shall not afterwards sue B for the rent due for 1905 or 1907.
' ORDER VII PLAINT
11. Rejection of plaint. The plaint shall be rejected in the following cases:--
(a) where it does not disclose a cause of action;
(b) where the relief claimed is under valued, and the plaintiff on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;
(c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff on being required by the Court to supply the requisite stamp paper within a time to be fixed by the Court, falls to do so;
(d) where the suit appears from the statement in the plaint to be barred by any law.
Keeping in view the above provisions of law it is concluded that the suit of the appellants was very rightly rejected by the trial court. The learned District Judge rejecting the plaint has committed no illegality, irregularity or perversity. No misreading or non-reading of the documents annexed with the plaint has been pointed out, rather from bare reading of the contents of the plaint it transpires that the suit is liable to rejection under Order VII, Rule 11, C.P.C. The case-law referred by the parties need not to discuss in detail for the above said reasons.
' What has been stated above the appeal is without any substance which is hereby dismissed with no order as to costs. 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.