Ghulam Mustafa Mughal, J-- This appeal by leave of the Court has been directed against the judgment and decree of the learned High Court passed in civil appeal No. 162 of 2015, whereby, the appeal filed on behalf of respondents No. 1 to 6, herein, has been accepted.
2. The precise facts forming the background of the captioned appeal are that the suit land comprising khasra No. 211, measuring 4 kanal, 7 marla, situated in Garhi Dupatta was in the ownership and possession of the father of the plaintiff-appellants, herein, on the basis of private partition which was given by the father of the plaintiff-appellants, herein, for expansion and up-gradation of the local dispensary to the Health Department. It was agreed between the parties that unless the land is not awarded, the official respondents shall pay the annual rent to the father of the plaintiffs but later on, they did not fulfil their commitment. The father of the plaintiffs moved different applications to the concerned authorities and the matter was resolved ultimately in the year 1990 by the orders of the Deputy Commissioner. It was claimed that the father of the plaintiffs died in 1991 and at that time, the plaintiffs were minor and could not take up the matter with the official respondents.
However, after attaining the copies of the revenue record, it was transpired that the official respondents without any sale-deed/award have illegally got entered the suit land in their ownership in the revenue record. On the protest of the plaintiffs, they were told that the suit land was acquired by the Government through an award which was subsequently exchanged with the land comprising khasra No. 12, measuring 4 kanal, 7 marla, which was in the ownership and possession of the father of the respondents by the Health Department vide exchange- deed dated 15.5.1988. The plaintiffs again moved to the different authorities for copy of the exchange-deed and ultimately a photocopy was handed over to plaintiff No. 3, which reveals that the suit land of the father of the defendants No. 1 to 5, herein, has been exchanged by the Health Department with the land khasra No. 132, renumbered as 211, measuring 4 kanal, 7 marla. It was claimed that the exchange-deed is illegal, bogus and without lawful authority. As the land was not in the ownership of the Health Department, therefore, the said department was not entitled to execute the exchange-deed with the defendants No. 1 to 5, herein. The plaintiff- appellants, herein, have challenged the said exchange-deed on the ground of fraud and deception and for having been exchanged without any title. The suit was contested by the defendants by filing written statement, whereby, it was claimed that the plaintiffs have challenged the exchange-deed after the prescribed period of limitation. It was further claimed that the suit land comprising khasra No. 12, measuring 4 kanal, 7 marla was in the ownership of the father of defendants No. 1 to 5 which was exchanged with the Health Department with khasra No. 132, measuring 4 kanal, 7 marla, who was owner of the same on the basis of award. It was claimed that the plaintiffs have no cause of action and the suit is malafide. The defendants also moved an application for rejection of the plaint on the ground that the plaintiffs have no cause of action and the suit of the plaintiff- appellants, herein, is barred by law. The learned trial Court heard the arguments on this application and vide judgment dated 12.4.2015 rejected the plaint under Order VII, Rule 11, C.P.C. for want of cause of action as well as being barred by law. Feeling aggrieved from the aforesaid judgment, an appeal was taken to the learned District Judge, Muzaffarabad which was accepted vide judgment dated 3.10.2015, whereby, the trial Court was directed to decide the case after recording the evidence of the parties. The respondents, herein, challenged the judgment of the District Judge, Muzaffarabad dated 3.10.2015 by way of the appeal before the Azad Jammu and Kashmir High Court on 20.11.2015 and the same was accepted vide judgment dated 3.11.2016.
Resultantly, the judgment of the trial Court was restored.
3. Kh. Ansar Ahmed, the Advocate, appearing for the plaintiff-appellants, vehemently argued the suit land was in the ownership of the father of the plaintiff-appellants and now they are owner of the same which has never been acquired by the Health Department through any award or sale-deed, hence, the exchange-deed executed by the said department with the father of the private defendants was illegal, erroneous and without lawful authority.
The learned Advocate argued that the exchange-deed has been executed by the Health Department without obtaining the proper sanction of the Government. The learned Advocate further argued that the controversial facts pleaded and denied by the parties cannot be resolved without recording evidence, hence, the rejection of the suit for technical reasons was an arbitrary exercise of jurisdiction and the judgment of the trial Court is not covered by the provisions contained in Order VII, Rule, 11, C.P.C. He argued that as the father of the plaintiff- appellants was died in 1991 and thereafter, they being the minors could not brought the suit within prescribed period of limitation, hence, their suit is within limitation from the date when they got knowledge about the fake and fraudulent exchange-deed and bogus entries regarding the ownership of the respondents made in the revenue record on the basis of the said transaction. The learned Advocate further argued that an application for condonation of delay was also filed but the trial Court as well as the learned High Court has not considered the same. He further argued that the judgment passed by the learned District Judge, Muzaffarabad was in accordance with law and was liable to be upheld and the parties may be allowed to prove their case through evidence but the High Court fell in error while vacating the same.
4. Conversely, Ch. Muhammad Manzoor, the Advocate appearing for defendant-respondents No. 1 to 6, contended that totally baseless and unbelievable story has been built up for ill-gotten-gain and for brining the case within the period of limitation by the plaintiff-appellants, herein. The learned Advocate argued that the fact of the matter is that the land belonging to the father of the plaintiffs was acquired vide award No. 191-92, dated 26.1.1973 for up-gradation of the local Dispensary/Hospital. The said land was later on, exchanged by the Health Department which was lawful owner of the same on the basis of the award with khasra No. 12, measuring 4 kanal, 7 marla, which was in the ownership of the father of defendants No. 1 to 5, herein, in the year 1988. The exchange-deed, according to the learned Advocate, was executed after proper sanction of the Government, hence, the suit was hopelessly time-barred and there was no explanation that how the plaintiff- appellants, herein, came to know about the aforesaid transaction. The learned Advocate further argued that the application for condonation of delay was filed four months after the institution of the suit which was an afterthought. The learned Advocate contended that as the suit was hopelessly time-barred and was also not maintainable in view of section 18 of the Land Acquisition Act, 1894, therefore, it was enjoined upon the Court to satisfy itself about the maintainability of the suit before proceeding further.The learned Advocate argued that the judgment of the District Judge, Muzaffarabad was illegal as no reasons were recorded in the remand order.
5. We have heard the learned counsel for the parties and also gone through the record of the case. A perusal of the copy of award No. 191-92, dated 26.1.1973, reveals that the land belonging to the father of the plaintiff- appellants was acquired by the Government for up-gradation of the local dispensary. It appears that subsequently, for the sake of convenience, the said land was exchanged by the Health Department with the land of the father of the defendants No. 1 to 5, herein, in the year 1998, after approval of the Government. The possession of the land was also transferred to the parties.There is no explanation that how the matter did not come in the knowledge of the father of the plaintiff-appellants since 1988 till his death in 1991. It was categorically stated by the plaintiffs that they were minor but there nothing is mentioned that when they attained the age of majority and from that date their suit is within limitation. It was enjoined upon the plaintiffs to claim the exemption in limitation by pleading specifically. No exact date and time of knowledge is given by the plaintiffs.
They, in fact, have based their claim on a vague assertion. The learned Civil Judge as well as the learned High Court has considered every aspect of the case and came to the conclusion that the suit is barred by law and its continuation is wastage of time and abuse of the process of law.
6. The powers under Order VII, Rule 11, C.P.C. can be exercised where the plaint does not disclose cause of action for which the plaintiff has not only to challenge bundle of the facts but he is also required to show that some right had been infringed and right to seek relief was also in existence. The policy of law is that the incompetent suits should be laid at rest at the earliest moment so that no further time is wasted on that which was bound to collapse at the end. We may refer the following case law in support of the aforesaid view;
(i) Mst. Rahmat Bibi vs. Ramzani [PLD 1967 Lahore 1074],
(ii) Abdul Rahman vs. Wahid Bakhsh & 9 others [PLD 1977 Lahore 1243],
(iii) Burmah Eastern Ltd. Vs. Burmah Eastern Employees Union and others [PLD 1967 Dacca 190],
(iv) Syed Zahid Hussain and another vs. Capital Development Authority, Islamabad through its Chairman [1979 CLC 502], and;
(v) T. Arivandandam vs. T.V Satyapal and another [AIR 1977 Supreme Court 2421].
In the first case referred to hereinabove, at page 1074 of the report, it was observed as under:-- "..........A cause of action is the sum total of all those allegations upon which the right to the relief claimed is founded. It includes every fact which it would be necessary to prove, it traversed, in order to enable a plaintiff to sustain his action. In determining as to what is a cause of action, one is not concerned as to what is the nature of the defence that may be set up, but he has only to see what is alleged in the plaint. The facts that are alleged in the plaint and which require to be proved without proof of which the plaintiff would not be entitled to a judgment constitute the cause of action. Every such fact which it is necessary to prove, therefore, would form a part of the cause of action. It is, therefore, to be ascertained from the allegations in the plaint as to what is the cause of action in each case....."
In the second case at page 1244 of the report, it was opined as under:-- "It is true that the cause of action, as generally understood means bundle of facts which if traversed a suitor claiming relief is required to prove for obtaining judgment. Nevertheless, it does not mean that even if one such fact, a constituent of cause of action is in existence, the claim can succeed. The totality of the facts must co- exist and if anything is wanting the claim would be incompetent. A part is included in the whole but the whole can never be equal to the part. It is also well understood that not only the party seeking relief should have a cause of action when the transaction or the alleged act is done but also at the time of the institution of the claim. For example, there may be a case where at the time when an action is brought, there is no right to seek the remedy though the remedy was available when the right was infringed. A suiter is required to show that not only a right has been infringed in a manner to entitled him to a relief but also that when he approached the Court the right to seek the relief was in existence."
In the third case referred to hereinabove, at page 190 of the report, it was concluded:-- "Although under order VII, Rule 11, of the Code of Civil Procedure, it is the duty of the Court to reject the plaint if, on a perusal thereof, it appears that the suit is incompetent, the parties to the suit are at liberty to draw Court's attention to the same by way of an application. The Court can, and, in most cases, does hear lawyers on the points involved in the application. The principles involved are two-fold: In the first place, it contemplates that a still-born suit should be properly buried, at its inception, so that no further time is consumed on a fruitless litigation. Secondly, it gives plaintiffs a chance to retrace his steps, at the earliest possible moment, so that, if permissible under law, he may find properly constituted case, Order VII, rule 11 of the Code, enumerates certain categories under which the Court is called upon to reject a plaint, but it is obvious that they are not exhaustive. It appears from the language of rule 11 of Order VII that it requires that an incompetent suit should be laid at rest at the earliest moment so that no further time is wasted over what is bound to collapse as not being permitted by law. A suit may be specifically barred by law and, in such an event, the matter would come under the express terms of clause (d) of rule 11 of Order VII of the Code. But, even in a case where a suit is not permitted by necessary implication of law in the sense that a positive prohibition can be spelt out of legal provisions, the Court has an inherent jurisdiction to reject the plaint. This really amounts to saying that Order VII, rule 11, is not exhaustive."
In the fourth case at page 505 of the report, it was observed as under:-- "8. There is force in the argument that the learned Additional District Judge had no jurisdiction to reject the plaint under Order VII, rule 11 since his jurisdiction was confined at the most to set aside the order of issuance of temporary injunction by the learned trial Court. But I am not in agreement that this was a case in which an issue on the question of Order VII, rule 11 ought to have been framed. The matter can be decided by the trial Court under Order VII, rule 11 on the strength of the allegations made in the plaint itself. It is the petitioners' own case that the allotment was made in their favour by the Minister who as stated above had no jurisdiction. It is not the case of the petitioners that any allotment was made by the Capital Development Authority. Similarly it is not the case of the petitioners that the possession of the area in dispute was given to them by the said Authority. They alleged to have taken possession by virtue of an agreement with H.G. Villani who in the circumstances of having surrendered his right had no right to pass over the possession of the area to the petitioners. It is, therefore, a case in which the learned trial Court ought to have passed an order dismissing the plaint under Order VII, rule 11. Though the Additional District Judge did not have the jurisdiction to do it but even it he had drawn the attention of the learned trial Court to this effect after holding that the plaint did not disclose a cause of action, it would have been incumbent upon the trial Court to reject the plaint. ...."
In the fifth case referred to hereinabove, at page 2421 of the report, it was observed as under:-- "...If on a meaningful ---not formal--reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, the trial Court should exercise its power under O.7, R. 11, C.P.C. taking care to see that the ground mentioned therein is fulfilled. The trial Courts should insist imperatively on examining the party at the first hearing so that bogus litigation can be shot down at the earliest stage..."
7. After contemplate perusal of the record and in light of the arguments advanced on behalf of the parties, we have no reason to differ with the conclusion reached at by the learned High Court. A suit which is on the face of it is time-barred or is incompetent and fictitious is liable to be burried from its inception. The continuation of such proceedings cannot be allowed for pleasing a party which ultimately has to fail. In the case in hand, the land in question was acquired by the Government vide award No. 191-92, dated 26.1.1973. The same was duly entered in the record of rights. Thereafter, the said land was exchanged with the land of the father of the respondents after approval of the Government. Neither the award nor the exchange-deed has been challenged by the plaintiff-appellants in time at the appropriate forum, therefore, their suit was barred by law and was also hopelessly time-barred. The trial Court, therefore, has rightly rejected the plaint while exercising the powers under Order VII, Rule 11, C.P.C.
In view of the above, finding no force in this appeal, it is hereby dismissed with no order as to the costs