RASAAL HASAN SYED, J.---Petitioner in the instant civil revision assails judgments and orders dated 15.03.2 019 and 05.12.2019 of the learned courts below whereby the plaint in a suit for declaration was rejected and appeal thereagainst also failed.
2. Facts as are discernable from the material documents available with the revision petition are that the petitioner instituted a suit for declaration to the effect that the petitioner and private responden ts were the joint-owners of land in dispute; the orders of respondents Nos.2 to 5 were nullity at law, without jurisdiction, against settled rules, a result of conspiracy and fraud in pursuance whereof suit land bearing khasra No.67/10/2 measuring 02-K-02-M was illegally included in the Wanda of respondent No.6 and that the orders were liable to be annulled; and as consequential relief, the petitioner claimed that respondents be restrained from allocating or encumbering the land or from changing the character and causing any damage thereto. Separate written statements were filed by respondents Nos.1 to 5 and respondent No.6. In the course of proceedings of the suit an application under Order VII, Rule 11, C.P.C. was moved by respondents Nos.1 to 5 for rejection of plaint which was allowed and, in result, the plaint was rejected as being barred by limitation. Appeal filed by the petitioner also ended in dismissal. In the instant revision petition, these orders are subject-matter of challenge.
3. Learned counsel for the petitioner submitted that the impugned judgments and orders of the learned courts below were based on conjectures and surmises; the learned courts below did not apply judicial mind to the facts of the case; the record available before the learned courts below was misread; the judgments were contrary to rule settled by the Superior Courts and that the application under Order VII, Rule 11, C.P.C. was not tenable as similar application moved by respondent No.6 was earlier dismissed vide order dated 29.06.2017; which order was also affirmed in revision vide order dated 26.06.2018 of the learned Addl. District Judge and that even subsequent thereto another application under Section 151, C.P.C. moved by respondent No.6 for similar relief was dismissed by the learned Civil Judge on 20.06.2018. In view of the earlier orders as affirmed in revision, it was argued that the third application made by respondents Nos.1 to 5, was not maintainable nor the learned trial court could ignore the earlier orders or review the same and, in view thereof, the impugned judgments/orders being illegal and untenable, were liable to be annulled.
4. Learned counsel appearing for the contesting respondents as also the learned A.A.G supported the orders of the learned courts below and submitted that the plaint was rightly rejected as suit was filed beyond the period of limitation.
5. Points raised from both sides have been given due consideration. Record annexed with the revision petition has been examined; perusal whereof reveals that the suit of the petitioner was for declaration to the effect that the petitioner and private respondents were joint owners of suit land; orders of respondents Nos.2 to 5 were nullity law and without jurisdiction and that the alleged proceedings as well as the orders therein were result of fraud and conspiracy and that the suit land was illegally included in the portion of private respondents. Bare reading of the contents of the plaint manifests that the petitioner challenged the order and proceedings on the grounds of fraud and conspiracy and for being a result of undue influence of a former officer i.e. DCO/EDO(R), respondent herein, who was statedly related to private respondent and plea raised, inter alia, was that the petitioner was not heard or associated in the material process and as a result of fraud and conspiracy a major valuable part of the land was allocated to respondent No.6 in violation of the foundational rule regulating such matters and that the proceedings and orders were without jurisdiction. It appears from the file that initially respondent No.6 moved an application under Order VII, Rule 11, C.P.C. seeking rejection of plaint on the grounds that the proceedings were held by the Revenue Courts having exclusive jurisdiction in the matter; the order could not be challenge in the Civil Court and that the suit was barred by law. The plea raised did not find favour with the court and the application was dismissed vide order dated 19.06.2017. It was observed by the learned Civil Judge in his order that the controversy raised in the pleadings pertained to facts that could only be resolved after framing of issues and recording evidence and that since issues of law and fact were involved in the matter , the plaint could not be rejected without allowing the petitioner an opportunity to substantiate his case. Order dated 29.06.2017 of the learned Civil Judge was challenged in revision which too was dismissed by learned Addl. District Judge, D.C. Khan vide order dated 26.06.2018 whereby the order of the learned Civil Judge dated 29.06.2017, dismis sing the application under Order VII, Rule 1 1, C.P .C., was af firmed. The operative part of the order dated 26.06.2018 is to the following ef fect:- "6. In the instant suit for declaration the plaintif f/respondent has challenged the findings of the revenue officers on the basis of mala fide and lack of jurisdiction. The plaintif f/respondent has alleged that the revenue officers had no jurisdiction to adjudicate about the land in question as the same was residential and commercial property . Plaint discloses that the matter requires factua l investigation; during course of argum ents, it is frankly conceded by learned counsel for the petitioner that in the light of divergent pleadings of the parties the learned trial court already framed issues and at present the case in hand is fixed for evidence of responde nt/plaintif f. It is settled law that where issues have been framed, the parties must be allowed to lead evidence and the plaint cannot be summarily rejected.
7. The crux of the above discussion is that, the petitioner has failed to point out any illegality pervasive of law and facts in impugned order passed by learned trial court and the learned trial court has committed no illegality , irregularity while passing the impugned order for rejection of application for rejection of plaint under Order VII, Rule 11 of C.P.C. As such, impugned order passed by learned trial court is upheld. Resultantly , instant civil revision fails and as such same stands dismissed, being meritless..."
6. From the order-sheet of the suit it appears that on 29.03.2018 the learned Civil Judge framed the following Issues: "ISSUES:-
1. Whether orders passed by defendants Nos.2 to 5 regarding partition of the suit property situated in khatta No.548/523, land measuring 01 kanal 01 marla, in Mouza Gaddai Gharbi Tehsil and District Dera 3hazi Khan are against law and facts, inef fective upon the rights of the plaintif f, if so its ef fects? OPP
2. If issue No.1 is decided in af firmative, whether plaintif f is entitled for declaration as prayed by him? OPP
3. Whether shares/W andajat of each co-sharer in the joint khatta where established according to their possession, therefore, suit of the plaintif f is not maintainable? OPD 1 to 5.
4. Whether all the proceedings for partition conducted by Revenue Officers were within domain of their jurisdiction, therefore suit of the plaintif f before the civil court is not maintainable? OPD 6
5. Whether suit of the plaintif f is liable to be dismissed due to mis-joinder and non-joinder of the necessary parties?
OPD6
6. Whether suit of the plaintif f is time barred? OPD6
7. Whether no court fee has been leveled, so, suit of the plaintif f is liable to be dismissed? OPD6
8. Whether defendant is entitled to get special costs of Rs.25,000/- under section 35-A CPC from the plaintif f?
OPD6
9. Relief. "
7. Issues framed covered the controvers y as to whether the order was against the law; proceedings and orders were without jurisdiction and as to whether the suit was maintainable and was within time. Case was set up for evidence and the petitioner/plaintif f but curiously respondent No.6 cannot move second application under Section 151, C.P.C. for rejection of plaint which too was dismissed by the learned Civil Judge vide order dated 10.01.2018 observing that the application under Order VII, Rule 11, C.P.C. submitted by Syed Allah Ditta Shah/respondent No.6 had already been dismissed vide order dated 29.06.2017 and that a second application with similar facts could not be maintained. It was specifically observed in the order that the averments in the plaint to the effect that the orders passed by the Revenue Authorities were against law and facts and without jurisdiction, would require evidence for determination; therefore, the application of respondent No.6 had no merit which was accordingly dismissed with this observation.
8. Despite the fact that the plea for rejection of plaint had been twice rejected and order dated 29.06.2017 refusing rejection of plaint was affirmed in revision by the learned Addl. District Judge, yet respondents Nos.1 to 5 filed an application under Order VII, Rule 11, C.P.C. raising the plea that the Revenue Court had full jurisdiction in the matter , impugned orders were passed in accordance with law and that the orders could be challenge within one year under Article 14 of The Limitation Act, 1908 which having not been done, the suit was allegedly barred by time and that in terms of Section 172 of The Land Revenue Act, 1967 the Civil Court had no jurisdiction and also that the orders were correctly passed by the Revenue Courts and that the suit being against law and facts, the plaint was liable to be rejected. The application was resisted and was inter alia stated to be mala fide .
9. The learned Civil Judge allowed application under Order VII, Rule 11, C.P.C. of respondents Nos.1 to 5 vide impugned order dated 15.03.2019 observing that in the instant case the limitation was not a mixed question of law and facts rather it was a question of law and that Article 14 ibid. provided for one year of limitation from the date of order while the suit was filed after more than one year which consequently was barred by time; in result, the plaint was rejected. The order of the learned Civil Judge was affirmed in revision by the learned Addl. District Judge vide impugned order dated 05.12.2019.
10. Facts noted supra make it discernable that the suit of the petitioner for declaration was to the effect that the orders passed by respondents Nos.2 to 5 were nullity in law, without jurisdiction, conclusive and a result of undue influence, conspiracy and fraud, apart from being violative of the settled rules and policy and against the rule of natural justice. First application under Order VII, Rule 11, C.P.C. was filed by respo ndent No.6 seeking rejection of plaint which was decided by the learned Civil Judge vide order dated 29.06.2017 with the observation that the question raised in the plaint required evidence for final determination and that the matter could not be resolved by arguments simpliciter . So much so that in the order dated 26.06.2018 in revision petition, the learned Addl. District Judge observed that in the suit the orders of the Revenue Officers were challenged on the basis of mala fide and lack of jurisdiction and that the petitioner had alleged that the Revenue Officers did not possess any jurisdiction to adjudicate the subject-matter and that the controversy in issue would require factual investigation and could not be resolved on the basis of mere arguments. It was observed that counsel for the respondents, who had challenged the order of the learned trial Court in revision, had also frankly conceded that in light of the pleadings, issues had already been framed and case was fixed for evidence; and even otherwise, it was settled law that where issues had been framed, parties must be allowed to lead evidence and that the plaint could not be rejected summarily and that no illegality could be shown in the order of the learned trial court rejecting the application under Order VII, Rule 11, C.P.C. Even subsequent application filed under section 151, C.P.C. seeking rejection of plaint on similar grounds was dismissed by the learned Civil Judge vide order dated 10.1.2018 with the observation that the second application on similar facts was not maintainable nor the matter already decided could be re-agitated and further that the orders passed by the Revenue Authorities had been challenged as being against the law and facts and without jurisdiction which required evidence for decision. In view of the three orders i.e. order dated 29.06.2017 and 26.06.2018 of the learned Civil Judge (dismissing the application seeking rejection of plaint) and also the order dated 26.06.2018 of the learned Addl. District Judge in revision (whereby the order of dismissal of the application for rejection of plaint was affirmed by taking in view that in the suit the orders were challenged on the grounds of being mala fide and lack of jurisdiction, and those questio ns raised could not be resolved without framing of issues and evidence and that the issues having already been framed parties should be allowed to complete the trial); the filing of subsequent application on behalf of respondents Nos. 1 to 5 seeking rejection of plaint could not be deemed to be a fair or bona fide exercise. Being parties to the suit they could have urged their viewpoint including the objection of limitation while supporting the earlier application of respondent No.6 but having failed to do so the learned Civil Judge should not have entertained the subsequent application under Order VII, Rule 11, C.P.C. of respondents Nos.1 to 5; let alone to accept it. Proper course for the learned trial court was to allow the parties to complete their evidence and, thereafter , to press the questions of law on all issues instead of rejecting the plaint outright. The learned Addl. District Judge also committed serious error of law and jurisdiction in affirming the order of the learned Civil Judge, little appreciating that the earlier application for rejection of plaint was dismissed and that the order was affirmed in revision by a court of equal and competent jurisdict ion i.e. the learned Addl. District Judge and in the presence of the earlier order , the learned Civil. Judge or, for that matter , the learned Addl. District Judge could not possibly sit in appeal over previous orders, to ignore the same for untenable reasons or could pass an order contrary to the same.
11. Even otherwise, the main emphasis of the learned courts below was Article 14 ibid. which contemplates to the effect that the order or act of an officer of the Govern ment in his official capacity could be set aside within one year from the date of the order . The provision of Article 14 was the date of the order . The provision of Article 14 was considered in the case of "Malhar v. Government of Sindh and others" (2005 CLC 285) wherein a civil suit for declaration with perpetual/mandatory injunction against the order of the Government and other officials, in respect of agricultural land; the orders of various authorities were challenged on the ground that the same were illegal, void, mala fide, inoperative and not binding. After survey of the reported cases, it was observed that the plaint in the suit was governed by Article 120 ibid. It was further observed to the effect that Article 14 will be applicable to a suit where the relief sought in the plaint was to get an order of the nature mentioned in column 1 of Article 14 set aside; but where in a suit for declaration, the relief sought was declaratory in nature and the impugned acts and orders were challenged on grounds being void, without jurisdiction or mala fide then, looking at the nature of the relief sought, the provision of Article 120 will govern which provides for six years as limitation period. It was further observed to the effect that whether or not a plaintif f could maintain or will succeed in a declaratory suit for seeking specific relief or that the impugned orders passed were liable to be set aside, will be different proposition of law which will be examined by the courts below when the suit proceeds on merits. In "FA. Khan v. The Government of Pakistan" (PLD 1964 SC 520) the honorable Apex Court observed to the effect that a declaratory suit contesting dismissal, filed by the government servan ts, will be governed by Article 120 which period shall start from the date of dismissal and where there is an appeal, from the date the appellate forum upheld the same. In "Province of East Pakistan v. A.K.M. Razaul Karim and another" (PLD 1969 Dacca 280) it was observed that Article 14 ibid did not apply to the suit brought to challenge transactions incorporated in the revenue record on grounds that rendered the transaction void in law including fraud and that the right to sue in such cases accrued from the date of discovery of fraud.
12. In the instant case, the petitioner has challenged the orders of respondents Nos.2 to 5 on grounds of being illegal, without jurisdiction, result of fraud and conspiracy , in consequence of undue and illegal A influence by a former higher Revenue Officer and reflected act of favoritism to respondent No.6 and, as such, was liable to be cancelled. As to whether the petitioner could succeed in a declaratory suit by proving the grounds raised will be a different proposition which will be examine d by the learned courts below , after recording evidence. At this stage, as per contents of the plaint, suit was appare ntly not for setting aside of any order simpliciter; but is for the annulment of the order on account of lack of jurisdiction, fraud, conspiracy and other grave allegations which, if proved, would have serious effects; while deciding application under Order VII, Rule 11, C.P.C. only statements in the plaint were to be taken into consideration. The question as to whether the suit should be regulated by Article 14 or Article 120 of The Limitation Act, 1908 could not be decided without recording of evidence and it was for this reason that learned Civil Judge as well as learned Addl. District Judge in the initial orders of rejecting the application under Order VII, Rule 11, C.P.C. observed that issues were interrelated and could not be decided without evidence.
Perusal of the pleadings of the issues framed unequivocally shows that issues framed were interlinked and that it is only after recording evidence that the court would determine as to whether the orders of respondents Nos.2 to 5 were without jurisdiction, collusive or a result of fraud; and, if not, which article will regulate the limitation for the purposes of the suit. Issues having already been framed and the case set up for evidence, the learned Civil Judge having already declined the rejection of plaint vide order dated 29.6.2017 the orders having been affirmed in revision by the learned Addl. District Judge, the subsequent order of the learned Civil Judge and also the learned Addl. District Judge on the application under Order VII, Rule 11, C.P.C. of respondents Nos.1 to 5, in the given circumstances, are not tenable. The learned Civil Judge acted illegally and with material irregularity while ignoring the earlier orders on illegal assumptions in rejecting the plaint while learned Addl. District Judge also failed to exercise jurisdiction in accordance with law by illegally refusing to interfere in the order of the court below; both orders on the face of it are legally unsustainable.
13. For the reasons above, instant revision petition is allowed , judgments and orders of the learned Court below impugned herein are set aside and the application under Order VII, Rule 11, C.P.C. of respondents Nos.1 to 5 is dismissed . In result, the suit will be deemed to be pending which will be decided by the learned Civil Judge after recording evidence and findings on all issues including the issue of limitation in accordance with law .