' KHADIM HUSSAIN M. SHAIKH, J.--- Through the captioned Civil Appeal, the appellant Abdul Rasheed has called in question the judgment dated 15.11.2011, passed by the learned Court of Additional District Judge, Naushehro Feroz, whereby he has dismissed Civil Appeal No, 68 of 2009 re: Abdul Rahseed v. Ali Bux and others, maintaining the order dated 24.11.2009, passed by the learned Court of Senior Civil Judge, Naushahro Feroz, whereby he rejected the plaint of FC Suit No,198 of 2009 re: Abdul Rasheed v. Ali Bux and others.
2. Briefly facts giving rise to the present appeal are that the appellant Abdul Rasheed had filed a suit being F.C. Suit No, 198/2009, re- Abdul Rasheed v. Ali Bux and others before the learned Court of Senior Civil Judge Naushehro Feroz. The case of appellant/Plaintiff Abdul Rasheed as set out in his plaint is that he is Mutawali and is in possession of Eidgah measuring 13600 S.Ft situated in Ward No,5, Bhiria Road Town, Naushehro Feroze, which hereinafter would be referred to as the suit property, that the plaintiff/appellant had constructed outer wall of the said Eid Gah by spending huge amount, that the defendants/respondents Nos.1 to 4 are claiming themselves to be its owners; that about one and half months prior to filing of the suit defendants/respondents Nos.1 to 4 in connivance of respondent No,6 interfered in the suit property and then went away issuing threats to the plaintiff/appellant, therefore, the plaintiff filed the suit No,198/2009 before the learned Court of Senior Civil Judge, Naushehro Feroz for declaration and permanent injunction praying therein that the plaintiff be declared as lawful Mutawali/Supervisor of the Markazi Eid Gah, Bhiria Road Town, and the defendants No,1 to 4 have no right, title or interest in the Markazi Eid Gah Bhiria and the permanent injunction against the defendants, be issued.
3. The suit of the plaintiff/appellant was contested by the defendants/respondents No,1 by filing written statement wherein they have denied the all allegations and claims of the plaintiff/appellant. It is further the case of the said Defendants that the Plaintiff belongs to Baloachistan; he neither remained in possession of the Suit Property; nor is Mutavali or Supervisor; his son namely Amanullah had filed a suit being F.C. Suit No,109/2009 re- Amanullah v. Ali Bux and others in the learned court of Learned Senior Civil Judge, Naushehro Feroz over the same subject matter of litigation between the same parties. The defendants/respondents Nos.1 to 4 had filed an application under Order VII, Rule 11, C.P.C. Seeking rejection of the plaint of F.C. Suit No,198 of 2009 re: Abdul Rasheed v. Ali Bux and others. After hearing the arguments of the parties' counsel, the learned Court of Senior Civil Judge, Naushehro Feroz rejected the plaint of F.C. Suit No, 198/2009, vide order dated 24.11.2009. The Plaintiff Abdul Rasheed filed appeal being Civil Appeal No, 68/2009 against the said order dated 24.11.2009, passed by the learned Senior Civil Judge, Naushehro Feroz, before the learned Court of District Judge, Naushehro Feroz, which was ultimately decided by the learned Court of Additional District Judge, Naushehro Feroz vide judgment dated 15.11.2011, whereby the said appeaL has been dismissed, thereafter, the appellant Abdul Rasheed has filed this appeal.
4. Learned advocate for the appellant has mainly contended that the learned Court of Senior Civil Judge Naushehro Feroz while rejecting the plaint of the suit of the appellant has failed to consider that the plaintiff is lawful Mutawali/supervisor of Markazi Eid Gah Bhiria road town i.e, the Suit Property; that the order of rejection of the plaint, passed by the learned Court of Senior Civil Judge Naushehro Feroz on 24-11-2009 and judgment dated 15.11.2011, passed by the learned Court of Additional District Judge Naushehro Feroz maintaining the order of the learned Court of Senior Civil Judge Naushehro Feroz are illegal. He, therefore, prays that the same may be set-aside and case may be remanded to the learned Court of Senior Civil Judge Naushehro Feroz for deciding the matter after evidence. On a query, learned advocate for the appellant states that the appellant has no title or right over the suit property, but, per him, he is only Mutawali in the suit property. On a further question, the learned advocate states that appellant has no document to prima facie show that he is lawful Mutawali in the suit property.
5. On the other hand, learned advocate for the Respondents has contended that from the face of record the suit being F.C. Suit No,198/2009 re-Abdul Rasheed v. Ali Bux and others, was barred under the provisions of section 42 of Specific Relief Act, 1877 and it is well settled law that in such eventuality the plaint of the suit is liable to be rejected, that the impugned Order dated 24-11-2009, passed by the learned Senior Civil Judge Naushehro Feroz rejecting the plaint and the judgment dated 15.11.2011, passed by the learned Court of Additional District Judge Nausherhro Feroz dismissing the appeal are legal, and he, therefore, prays that the present appeal filed by the appellant may be dismissed.
6. I have heard the arguments advanced by the counsel of the parties and have gone through the material available on record.
7. Perusal of record reveals that the learned Court of Senior Civil Judge Naushehro Feroz rejected the plaint of F.C. Suit No, 198/2009, vide order dated 24.11.2009 with the observations that previously F.C. Suit No,105/2009 was filed by Amanullah, the son of the Plaintiff Abdul Rasheed over the same subject matter of litigation stating that he is Mutawali of the Eidgah Bhiria road town and sought for declaration of his ownership and injunction against the Defendants; the plaint of previous F.C. Suit No,105/2009 was rejected vide Order, dated 17-09-2009, thereafter the plaintiff Abdul Rasheed has filed the present suit over the same subject matter and against the same Defendants, claiming himself to be Mutawali or supervisor of the Suit Property (Markazi Eidgah Bhiria Road). Likewise the learned Court of Additional District Judge, Naushehro Feroz vide judgment dated 15.11.2011, dismissed the Civil Appeal No,68/2009 filed against the said.Order dated 24.11.2009, passed by the reamed Senior Civil Judge, Naushehro Feroz, maintaining the order of the learned Court of Learned Senior Civil Judge Naushehro Feroz for rejection of the plaint, with the observations that the plaintiff has prayed that he may be declared as lawful Mutawali/Supervisor of Markazi Eid Gah and defendants Nos.1 to 4 have no right title over it as such in second part of his prayer he sought negative declaration. Admittedly, the appellant/plaintiff does not claim himself to be owner or claimant of lie suit property; that the learned counsel for the plaintiff also could not satisfy the Court that who had made the plaintiff Mutawali/Supervisor of Markazi Eidgah; that prior to filing of the suit by the plaintiff, his son Amanullah had also filed F.C. Suit No,105/2009 re-Amanullah v. Ali Bux and others in respect of the same subject matter wherein also the plaint was rejected under Order VII, Rule 11, C.P.C. Thereafter the plaintiff has filed the present suit who is father of Amanullah; that since plaintiff has no legal right or character over Markazi Eid Gah which is commonly used for offering Eid prayer by public in general, therefore, his suit before the learned trial Court was barred under Section 42 of Specific Relief Act, 1877.
8. Section 42 of Specific Relief Act, 1877 is attracted to a case in which the plaintiff approaches the Court for the safeguard of his right to legal character or property but where right of his own legal character or property is not involved, the suit is not maintainable.
9. It is well settled that Courts should look attentively to plaints at initial stage to find whether they attract application of Rule 11 of Order VII of C.P.C, if facts of the case justify application of Rule 11 of Order VII of C.P.C, it must be applied for rejection of the plaints, irrespective of fact whether it is stage of disposal of application for temporary injunction and it is somewhat earlier stage. It is also well settled that plaint can be rejected if it does not disclose cause of action or the same is barred by any law as enumerated in clauses (a) to (d) of Rule 11 of Order VII, C.P.C. If from the face of record 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 expenses and wastage of time of the litigants as well.
10. In case of S.M Shafi Ahmad Zaidi through legal heirs v. Malik Hassan Ali Khan (Moin) through legal heirs (2002 SCM R 338), the Honourable Supreme Court of Pakistan, has held that it is the requirement of law that incompetent suit shall be buried at its inception. It is in the interest of the litigating parties and judicial institution itself. The parties are saved with their time and unnecessary expenses and the Courts get more time to devote it for the genuine causes. It was further held therein that besides, averments made in the plaint other material available on record which on its own strength is legally sufficient to completely refute the claim of the plaintiff, can also be looked into for the purpose of rejection of the plaint. It does not necessarily mean that the other material shall be taken as conclusive proof of the facts stated therein, but it actually moderates that the other material on its own intrinsic value be considered along with the averments made in the plaint.
11. In view of what has been discussed above, I have felt no difficulty in reaching to the conclusion that the present case attracted application of Rule 11 of Order VII, C.P.C. And the Order dated 24-11- 2009, rejecting the plaint of F.C. Suit No,198/2009, passed by learned Trial Court and the impugned Judgment dated 15-11-2011, maintaining the aforesaid Order of rejection of the plaint, passed by the learned Court of Additional District Judge Naushehro Feroz are unexceptionable and the same also do not suffer from any jurisdictional defect. Learned advocate for the Appellant has also not been able to point out any illegality committed by the learned Courts below while passing the impugned Order and Judgment, therefore, this appeal is dismissed with no order as to costs.
Second .