MUHAMMAEN IQBAL KALHORO, J.---The instant application is directed against the order dated 06.10.2012 passed by the learned 2nd Additional District Judge Ghotki in Civil Appeal No: 35/2012 and the order dated 16.05.2012, whereby the learned Senior Civil Judge Ghotki rejected the plaint in F.C. Suit No.31/12 for Declaration and Permanent Injunction filed by the applicant.
2. The case of the applicant before the learned trial court was that he was absolute owner of S. No. 687(1.11) acres Deh Odhar Wali purchased through an oral statement dated 06.8.1992 along with other survey numbers admeasuring total 07-06 acres. He was also owner of 20 ghuntas in S.No.528 (1.16) acres which he had acquired by way of purchase through a registered sale deed dated 19.06.1999, where after he got his entire land consisting of S. Nos.
528, 529, 530, 531, 154, 152, 687, 688, converted into plots and got such sketch prepared and approved by Town Municipal Administration with the title and name of "Shanti Nagar". The respondent No.1 had purchased 4-1/2 ghuntas from S.No.528(1.16) acres from defendant/respondent Nos.3 and 4 through a registered sale deed dated 19.09.2011 without showing its dimensions therein and on the basis of such registered sale deed the respondents Nos.1 and 2 with the help of respondents Nos.4 to 7 tried to encroach upon some portion of S.No.687, hence the plaintiff approached the D.D.0 (Revenue) Ghotki who referred the matter through a letter dated 28.5.2011 to the Survey Superintendent Khairpur to undertake the measurement at the site, who fixed the date for such purpose with intimation to all the parties concerned, but the same could not be done, where after some more efforts were made by the said officer to do the needful but to no avail due to some objections of the defendants Nos.1, 2, 4 to 7. Finally on 29.03.2012 the Survey team along with the field staff of the Mukhtiarkar Ghotki in presence of the parties, started making measurement of the land and though this time the job could be performed but was not completed as the defendants did not indicate to the team the demarcations at site already marked by them, resultantly the team returned back unsuccessfully. On 30.03.2012 the defendant No.1,2 and 4 to 7 on the basis of the registered sale deed forcibly tried to occupy the portion of S.No.687 by claiming the same to be an area having already been purchased by them, which was communicated to the applicant by his staff prompting him to approach the defendants with a request to stop them to occupy his land but without any result. It is alleged that behind the whole episode qua dispute over measurement of the suit land was Asst. Mukhtiarkar Ghotiki who was instigating the defendants to take law in their hands.
4.The defendant 1,2,4 to 7 filed their written statements denying the case of the applicant and additionally adding that they had no concern with the suit land i.e. S. No. 687, however an area in S. No. 528, consisting of Ruk house(0-04) ghuntas, warehouse (00-16) ghuntas, Sher Muhammad Mahar (00-20 ghuntas) and remaining land (00-16) ghuntas, belonged to the defendants No.3 to 7 which was purchased by the defendant No.1, through a registered sale deed. The applicant was not absolute owner of S.No.528 and had not got the map of Shanti Nagar approved from the competent authority. He had not made the persons from Syed community party in the suit from whom the defendant No.1 had purchased the land and was himself avoiding the demarcation which is evident from the reports of the Mukhtiarkar and police available on the record which show the attempts made for the demarcation were thwarted by the applicant because he wanted to encroach upon the land of the defendant No.1 . It is further maintained that there was no need of any demarcation of the land as time and again it had taken place at the site. The questions to the maintainability of the suit and to the jurisdiction of the court had also been raised by the defendants besides claiming that the suit was barred by misjoinder and non-joinder of the parties.
5.It appears that the learned trial court while hearing the arguments on an application U/O.
XXXIX, Rule 1 and 2 C.P.C. came to the conclusion that the suit of the plaintiff was not maintainable under section 42 of Specific Relief Act, 1877, thus proceeded to reject the same U/O. VII, Rule 11 C.P.C. vide order dated 16.05.2012 which was challenged by the applicant in Civil Appeal No.35/2012 but that too was dismissed by the learned II-Additional District Judge Ghotki vide order dated 06.10. 2012.
6.Feeling aggrieved by and dissatisfied with the orders passed by both the learned courts below, the applicant has preferred this civil revision application.
7.It is not out of place to state here that during pendency of the instant application, the applicant died hence an application under order 22 rule 3 was filed for joining his legal representatives being CMA. No 93/13 which by consent was allowed vide order 08.04.2013 and in compliance of which amended title was filed on 05.08.2013.
7(sic) Learned counsel for the applicant has contended that while deciding the application U/O XXXIX Rule 1 and 2 C.P.C, the grounds which are to be taken in account are prima facie case in favour of the plaintiff; balance of inconvenience and the irreparable loss or injury, whereas the consideration for deciding the application U/O,VII, Rule 11 C.P.C. is altogether different. Per learned counsel while rejecting the plaint the averments made in the plaint coupled with the admitted facts are required to be looked into but in the present case the learned trial court as well as the appellate court have not only examined the averments of the plaint but the contentions raised by the defendants in their written statement have also been discussed which is against the scope and object of Rule 11 to Order VII, C.P.C. He further added in his arguments that the learned trial court before rejecting the plaint U/O VII, Rule 11 C.P.C. ought to have put the plaintiff on notice in order to facilitate him to satisfy it over the maintainability of the suit and non-affording such an opportunity to the applicant has amounted to condemning him unheard. Per learned counsel the findings of appellate court are not sustainable under the law as the appellate court while deciding the appeal has not formulated the points for determination, which is in violation of the mandatory provisions U/O XLI Rule 31 C.P.C. Per learned counsel the appellate court has erred in law by not attending to the contentions raised by the applicant, which has caused the miscarriage of justice. He lastly contended that the dispute between the parties over the demarcation of the land cannot permanently be settled down unless the proper opportunity is given to both the parties to present their case through evidence in respect of their claims as the best efforts put down by the plaintiff so far to get the controversy resolved through revenue authorities has not yielded any fruit. He in support of his arguments has relied upon the following case laws, 2003 M LD 109, 2004 M LD 1809, 2005 YLR 2167, 2011 CLC 88, 2003 CLD 335, 2005 CLC 1740, 1994 SCM R 826, 2013 M LD 1845, 2010 CLC 1931, 1996 SCM R 669 and 2005 CLC 1740.
8.On the other hand the learned counsel for the respondents intended that for the purpose of seeking relief U/O XXXIX, Rule 1 and 2, C.P.C, the plaintiff has to establish an arguable case in his favour and if he fails to prove prima facie existence of the right claimed by him in the suit, the plaint can be rejected by the trial court. He further added that in the counter affidavit filed on application for interim injunction, its maintainability was challenged by the respondents who happened to have questioned the maintainability of the suit also in their written statement therefore the applicant cannot claim to be oblivious of the basic questions casting doubt over his suit. He further contended that once the court comes to the conclusion that the suit is not maintainable, it can reject the plaint even in absence of any application filed in this regard, as not only under Order VII Rule 11 C.P.C. but under section 151 C.P.C., the plaint can be rejected. Per learned counsel the burden is always upon the plaintiff to prove as to under what law the court cannot reject the plaint as there is no bar provided under the law that the court cannot reject the plaint while hearing an interlocutory application. He expressed his view that when a thing is not expressly barred under the law would be considered permissible. The learned counsel further proceeded to refer to Section 117 of West Pakistan Land of Revenue Act, 1967 (for short, the Law), to emphasize his contention that the remedy for the applicant lies before the revenue officer and not before the civil court and in order to define the revenue officer, he drew my attention to sub Section
(23) to Section 4 and Section 7 of the law. Per learned counsel the applicant is the joint owner of the S.No.528 therefore in terms of Section 135 of the law he may apply to the revenue officer for the partition of his share in the land but before that he should apply for the bifurcation of the said survey number into different sub survey numbers so that the proper partition of the suit land shall take place as the parties are joint owners of said land which cannot be demarcated unless such division is carried out. He also added that the revenue officer is competent U/S 145 of the law to cause preparation of an instrument of partition and the date on which such partition is to take effect to be recorded therein. He lastly submitted that the plaintiff has no cause of action to file the suit for declaration and permanent injunction in respect of S.No.687 as the defendants have not denied his title over it. He in support of his arguments has relied upon PLD 1970 SC 180, 2001 M LD 1159, 2000 CLC 1524, PLD 1969 SC 65 and PLD 1991 K 365.
9.Learned A.A.G. has adopted the same arguments advanced by the learned counsel for the respondents.
10.In rebuttal the learned counsel for the applicant contended that the Assistant Mukhtiarkair Ghotki was approached for measurement of the land bearing S.No.528 but he himself vide his letter dated 16.02.2012 referred the matter to the Survey Superintendent Khairpur.
11.I have examined the case in the light of the arguments advanced by the learned counsel and have carefully gone through the material available on the record, the law and the decisions relied upon.
12. Admittedly every suit has to be commenced by presenting a plaint in terms of order IV CPC. The plaint shall contain the necessary particulars as provided under order VII CPC and if found lacking in this respect, can be rejected U/O VII Rule 11 C.P.C. in following cases:-
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 to 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, fails to do so;
(d) Where the suit appears from the statement in the plaint to be barred by any law.
13. There is no cavil to the proposition that the court is empowered to reject the plaint suo mow without there being an application filed by the defendant in this connection when it comes to the conclusion that the plaint filed by the plaintiff does not disclose any cause of action, the exercise of such powers is in conformity with the settled principle of law that incompetent suits shall be taken off the file at its inception and the plaintiff be allowed to retrace his steps. The plaint can be rejected at any stage even before issuing summons to the defendants or latter on at any time. And while hearing the appeal or revision application, the appellate court or for that matter the revision court can also reject the plaint. It therefore, emerges that no brackets appertaining to the time or stage are prescribed under the law for rejecting the plaint. Mainly it depends upon the court to examine the plaint to determine the question qua the A maintainability of the suit at very initial stage when the plaint is presented to it and if it infers the suit is not maintainable, it can reject the plaint without hearing the plaintiff but after such initial examination, if the court proceeds to issue the summons to the defendants, it shall lead to an irresistible conclusion to the ex facie existence of a cause of action entailing an elaborate inquiry into the matter, irrespective of the fact as to whether during the trial the plaintiff will be able to prove it or not. In such eventuality viz, the suit admitted after initial scrutiny and summons issued to the defendants denoting commencement of trial, the plaint shall not be rejected summarily without allowing the plaintiff an opportunity of hearing. As per the scheme of law, while rejecting the plaint only the averments made in the plaint and the documents filed with it are to be examined along with the admitted facts, therefore a bounden duty under the law is cast upon the court to examine the plaint minutely to determine about its maintainability in terms of 0.VII R. 11 C.P.C. before issuing summons to the defendant. Since filing an application by the defendant under this rule has never been considered a requirement of law and the court on its own motion can proceed to reject the plaint would not mean that the plaintiff can be non-suited without being notified about the prospective penal action against him.
The Court while hearing an interlocutory application if determines that the plaint in terms of order VII R. 11 shall be rejected then in order to maintain the judicial impartiality shall occasion a fair opportunity to the plaintiff to bring forth his point of view or to remedy the defects by making necessary amendments in the plaint, instead of throwing him out in hasty manner.
14. Bare perusal of impugned order dated 16.05.2012 passed by the trial court reveals that the court that while deciding the application U/O XXXIX Rule I and 2 C.P.C. rejected the plaint by holding that the suit of the plaintiff was barred U/S 42 of the Specific Relief Act, 1877. The record in hand does not manifest that before the plaint was rejected, the plaintiff was put on any notice by the court to address on the questions regarding maintainability of the suit.
The rejection of plaint on an application moved for seeking interim relief must have caused surprise and shock to the plaintiff who was caught unattended by the court as neither he was afforded an opportunity to make his submissions or point of view known to the court nor was allowed time to bring his suit within the four corners of maintainability by resorting to curative measures to remove defects in the plaint by invoking provisions of Order VI Rule 17.
Such an exercise of powers can neither be considered fair nor proper. Besides it cannot be deemed as a judicial act as it violates the basic principle of <i>"Audi alteram partem". </i> The fairness demands that the trial court instead of rejecting the plaint straightaway while hearing an interlocutory application for interim relief should have invited the plaintiff to make out his case on the maintainability and in case any curable defect was found in the plaint, it ought to have allowed the plaintiff to take necessary steps stipulated under the law to do away with those discrepancies. Manifestly the fact, that the plaint at the first instance was examined and admitted as a result whereof summons were issued to the defendants who filed their written statements accordingly was lost sight of conveniently by the court while rejecting the plaint. It tends to show that the court actually acted behind the plaintiff which is unwarranted under the law. The object for which the whole judicial system has been painstakingly established is to administer impeccable and substantial justice which would, inter alia, call for patient and attentive hearing of disputes between the parties by the courts. Technical knock-out of the parties in the suit has never been looked upon by the superior courts favorably as it militates against the very concept of dispensation of justice. The courts are required to strike balance between "justice hurried is justice buried and justice delayed is justice denied".
For reliance the case of Mushtaq Hussain V/S Province of Punjab through Collector Jehlum can be cited.
"11. But when a plaint is rejected after the commencement of the suit while deciding an application under Order XXXIX, Rules I and 2, C.P.C, the Court acts at the back of the plaintiff.
Because the case is then fixed for passing of an interlocutory order and not for determination of the question pertaining to the maintainability of the suit."
15.In 2005 YLR 2161 the Lahore High Court in a case of Muhammad lqbal v. Lahore Development Authority and others has observed in para No.3 as under:-- "3. Admittedly after the institution of the suit, together with the application for the grant of temporary injunction, the learned trial court issued summons/notices to the respondents and where 'after hearings the parties only on the application for stay, rejected the plaint. To my mind, the learned trial court could not have rejected the plaint/suit, while hearing only the application for the grant of temporary injunction. It is settled law that the court is not justified to reject the plaint or to dismiss the suit, while dismissing the injunction application or hearing the appeal or revision against an interim order. If any case-law is needed cases reported as Zafar Ahmed Ansari v. Auqaf Department through Chief, Administrator, Punjab and 4 others 1996 CLC 892, Abdul Saleem and others v. Muhammad Sharif 1989 MLD 332, Mst. Zainab Jan v. Abdul Rashid 1981 CLC 1012, Mst: Khurshid Begum and 7 others v. Inam Rabbani and another 1979 CLC 57 0 and Muhammad Hussain and 54 others v. Federal Government, Pakistan through Secretary Communication and Works and 2 others 1980 CLC 1656 can be referred."
16.The another important aspect of the case which skipped the attention of both the courts below was the determination of the question about the entitlement of applicant to the relief of injunction after he was found disentitled to the relief of declaration. The courts below ought to have proceeded to decide that the relief of injunction claimed by the applicant in his suit could not be granted without granting him relief of declaration. The relief of injunction could be separate, distinct and independent of declaration. The reliance is placed in the case of Dr. Mohomed Aqeel Khan and another v. Mst. Dr. Shaharyar and 2 others 1987 ML]) 2809. The learned appellate Court, it appears, while dismissing the appeal filed by the applicant has not adverted to such well entrenched principles of law and instead of rectifying the legal error committed by the learned trial court maintained the said order.
17. In view of above, I find that both the learned courts below have passed the orders impugned here in excess of jurisdiction, which are, thus, set aside. The present application is allowed with the result the trial court shall provide an opportunity to the plaintiff to satisfy it on the question of the maintainability of the suit and then shall proceed to decide the same in accordance with law.