MUHAMMAD NAEEM ANW AR, J:- This civil revision under Section 115 of the Civil Procedure Code, 1908 is directed against the judgment and decree of learned Additional District Judge-I I, Nowshera dated 08.11.2016, whereby the appeal of petitioners against the order of Civil Judge, Nowshera dated 24.1 1.2015 was dismissed.
2. This case has chequered history . In the year 2008 a civil Suit No.360/1 was instituted by petitioner No.1 against respondent No.1 to the effect that respondent No.1 be restrained from making any barrier/blockade in the way which leads to the petitioners' property. The suit was instituted on 15.11.2008, wherein it was contended that the property bearing Khasra No.709 was his ownership, whereas the property of respondent No.1 is situated on both sides of the public property bearing Khasra No.706, which is adjacent to a stream locally known as 'Lakhti'. Respondent No.1 appeared before the learned Civil Court and contested the suit. During proceedings of the suit a commission was appointed for determination of certain points, who submitted his report on the basis of which on 19.10.2009, suit of the petitioner No.1 was decreed in his favour against respondent No.1. The aforementioned judgment and decree was challenged by filing of civil appeal bearing No.43/13 instituted on 04.11.2009 by respondent No.1, which was accepted on 29.04.2010 and case was remanded back to the learned trial Court with direction to decide the case after recording of evidence pro and contra as per the respective contentions of both the parties and to decide the same in accordance with law. After remand, both the parties appeared before the learned trial Court, however, on 06.06.2012, the learned Civil Judge has dismissed the suit being not maintainable due to non- compliance of provision of Sections 91 and 92 of the CPC read with Section 172 of the Land Revenue Act, 1967.The order of learned Civil Judge was challenged by Civil Appeal bearing No.13/15 which was decided in such a way that if the plaintiff/appellant is interested to file a suit in respect of disputed thoroughfare/road then he has to first obtain permission from the Advocate General for filing of a civil suit and then to file the suit afresh if so desired and advised, with findings as mentioned above, the appeal was dismissed on 13.12.2012.
3. In order to seek permission as per observation made by the learned appellate Court in its judgment referred to above petitioner No.1 along with Mr. Aien Khan son of Malik Taj resident of Sherin Kotay of District Nowshera submitted application to the office of learned Advocate General KPK in order to get permission under Sections 91 and 92 of CPC, which was accorded through a letter bearing No.13952/AG dated 14.10.2013, on the basis of which petitioner No.1 had filed Civil Suit bearing No.860/1 against the respondents for perpetual injunction that they be restrained from amalgamation the boundary of public property (Public Path) and from making any blockade in the way/public path along with the relief for demolition of any blockade/barrier if the same would have been made during pendency of the suit. The contents of the plaint were almost the same as that were of civil suit bearing No.360/1 except Para No.8 of the plaint wherein the requisite permission under Sections 91 and 92 of the CPC being obtained, was specifically stated. The respondents have contested the suit by filing their written statement by taking therein legal objections of concealment of fact, Order-II Rule 2 of the CPC, resjudicata and non acquisition of the alleged public path by Government and the rejection of plaint under Order-VII Rule 11 CPC. The learned trial Court on 24.11.2015 through its order returned the plaint for its presentation before the proper forum, which order of the learned trial Court was challenged by filing of Civil Appeal bearing No.27/13 before the learned District Judge, which was entrusted to Additional District Judge-II Nowshera. The appeal was dismissed by the learned appellate Court while maintaining the findings of learned trial Court mentioned in order dated 24.11.2015. By way of filing of instant revision petition, the petitioners have assailed the finding of the learned trial Court dated 24.11.2015 and that of learned appellate Court dated 08.11.2016.
4 At the very outset, learned counsel appearing on behalf of respondents have raised the objection regarding non- maintainability of this revision petition while taking plea that when the plaint was returned by the learned Civil Judge, Nowshera through its order dated 24.11.2015, the said order was not appealable as such, the incompetent appeal was filed which ought to have been treated as revision petition, in consequence whereof the instant revision petition is self is misconceived.
5. Before entering into factual aspect of the instant revision, in order to meet the preliminary objection raised by the respondents, the provision of Order-XLIII of the CPC were gone through which deals with appeal from orders which reads as under:- "ORDER XLIII APPEALS FROM ORDERS 1.--Appeals from orders.--An appeal shall lie from the following orders under the provisions of section 104, namely:-
(a) an order under rule 10 of Order VII returning a plaint to be presented to the proper Court."
6. When the preliminary objection was considered in the light of aforementioned provision of law it became crystal clear that the order passed by the learned Civil Judge, dated 24.11.2015, whereby the plaint was returned to the petitioners for its presentation before the Court of competent jurisdiction was found appealable. Thus the objection raised by the learned counsel for the respondent was overruled
7. It appears from the record that the findings of learned appellate Court in Civil appeal No.23/13 were that petitioner/plaintiff should get permission first and then to file civil suit, if so desires and advised. Though the appeal was dismissed, however, the aforementioned findings of the Court were unambiguous, the petitioner was permitted for filing a suit afresh subject to the permission from Advocate General, as such, after getting the said permission fresh suit was instituted. The worthy counsel representing the respondents has vehemently argued that prior to institution of fresh suit it was for the plaintiffs/petitioners to get their property demarcated first with respect to its boundaries to adjacent properties, regarding which they had contended that it was the public property, then they could institute the suit and secondly that the permission as required under the provision of Section 91 of CPC was not granted as such, therefore, the suit in hand was incompetent.
8. So far the first objection regarding the demarcation of property is concerned, the record shows that during the pendency of the earlier suit bearing No.360/1 a commission was appointed, on whose report the suit of the petitioner No.1 was decreed, however, in order to determine the boundaries or limits of the properties the commission could be appointed or demarcation could be ordered in accordance with Peshawar High Court Rules read with provision of land Revenue Act, 1967. The second objection was in respect of institution of the suit that the suit was not instituted by the person to whom the permission was accorded by the Advocate General, as such, the instant suit was incompetent. The learned counsel while taking the said plea have made reliance on the judgment reported in 1986 SCMR 423.When the form of the suit was gone through in Juxta-position with provision of Section 91 CPC it found that there is no defect in the form of the suit except that the permission was accorded in favour of plaintiff No.1 along with one other namely Aien Khan son of Malik Taj who was not party to the suit. The aforementioned provision of law does not debar the institution of suit by anyone or two, to whom the permission was so granted as no penal provision was there which could restrict the institution of the suit by anyone of them, when no penal provision is there then the said provision shall be considered as directory in nature. In order to test as to whether a provision of law is directory or mandatory, reliance is placed in the case titled. The collector of Sale Tax, Gojranwala Vs Super Ashia Muhammad Din & Sons (2017 SCMR 1427 ) "that when a statute required that a thing should be done in a particular manner or forms, it had to be done in such manner , but if such provision was directory , the Act done in breach thereof would not be void, even though non compliance may entail panel consequences, however , non compliance of mandatory provision would invalidate such Act".
Now, on the touch stone of said principle of law in juxta-position with the form of the suit, the objection of the learned counsel for petitioner seemed misconceived.
9. Besides the above, learned counsel for respondent placed reliance on a leave refusal judgment which could not be considered as precedent as it has been held by Sindh High Court in the case title Abdullah Vs State (2001 MLD 1554).
"That if leave to appeal was refused by the Supreme Court, order of refusal would not lay down any principle having the force of precedent. The refusal to grant leave has a limited effect, meaning thereby that the Hon'ble Supreme Court is not persuaded to exercise its discretion. It does not impugn even to the confirmation of view of the High Court which is sought to be assailed, while seeking leave to appeal".
This objection raised by learned counsel regarding maintainability of the suit on this score too is not sustainable.
10. The respondents have also raised an objection that the petitioners were estopped to sue as the earlier judgment whereby their appeal was dismissed has attained finality and no permission for filing of fresh suit was either sought or given, then in such eventuality the petitioners were debarred/ precluded from the institution of the fresh suit. Suffice it to say, that estopple has been defined in Osborn's Dictionary that "it is the doctrine of law which preclude a person from denying the truth of statement formally made by him". Keeping in view basic doctrine of estopple, contents of the plaint could not in any manner or by no stretch by imagination could be considered as an estoppels against the petitioner in filing of the suit against respondent. The petitioners have in their suit categorically mentioned that the suit was instituted after getting the requisite permission from the concerned quarter . Petitioner was given permission for filing of fresh suit subject to the said permission, as such, the principle of estopple does not lie against petitioners.
11. Lastly, the learned counsel representing the respondents have taken the plea that the plaint was hit by provision of Order-VII Rule 11 of the CPC as no cause of action accrued in favour of petitioner. I wonder that how the objection in respect of non-accrual of cause of action could be raised as against the petitioners.
There is a sky high difference between accrual of cause of action and disclosure of cause of action, the former shall be resulted into dismissal of suit whereas the latter shall be ended in rejection of plaint. A plaint may disclose a cause of action even in the case when no cause of action was ever accrued in favour of the plaintiff, if it was drafted properly. A cause of action might have accrued in favour of a person but the plaint was not drafted in such a skilful manner that may not disclose a cause of action, in such an eventuality the plaint could be rejected. While considerin g the contents of plaint it does disclose cause of action in favour of the petitioner . As such, the objection raised by the petitioner did not sustain.
12. For all that has been discussed above, it became clear that both the learned Courts below while applying the provision of Order-VII Rule 11 CPC have committed an illegality, as such, the instant revision petition is allowed, both the orders of the lower fora are hereby set aside. The plaint shall be deemed to be pending before the learned trial Court where the matter shall be decided after giving an opportunity of being heard to both the parties in accordance with law, however, as the instant matter remained pending adjudication amongst the parties since 2008, therefore, the learned trial Court is directed to conclude it within a period of six months, if not earlier.