1. The petitioner, Mst. Bilqees Begum daughter of Maulvi Allah Ditta Butt instituted a suit for declaration and permanent injunction against Haji Ghulam Rasool and another before the learned Civil Judge, Lahore on 2'8-5-1988. An amended suit was filed by the petitioner/plaintiff on 9-10- 1988. The suit was contested by the respondent No. l by filing written-statement on 9-10-1988. Out of the divergent pleadings of the parties, the following issues were framed by the learned trial Judge on 11-5-1989:
(1) Whether the suit is not maintainable in its present form?
2. (2)Whether the suit has been filed with the connivance and at the instigation of the defendant No.2?
3. (3)Whether the plaintiff has no cause of action and locus standi to file this suit?
4. (4)Whether the suit is time-barred?
5. (5)Whether the suit has not been properly valued for the purposes of court fee and jurisdiction?
6. (6)Whether the plaintiff is entitled to the decree as prayed for, (7)Relief.
7. The case was adjourned for recording evidence of the plaintiff, an application was moved by the petitioner under Order 6, Rule 17 read with section 151, C.P.C. for permission to amend the plaint on 6-3-1990. The application was contested by the respondent No.1 by filing written reply on 7-3-1990.
8. The learned Civil Judge vide his order dated 29-3-1990 allowed the petitioner-plaintiff to make necessary amendment in the plaint. As a matter of fact, the plaintiff wanted to challenge an appellate order having been passed by the learned Additional District Judge on 12-2-1989 through the proposed amendment. The respondent filed a revision petition under section 115 of the C.P.C. against the said order which was accepted by the learned Additional District Judge on 12-11-1990.
9. The plaint of the petitioner/plaintiff was also rejected vide the same judgment. This judgment has been assailed by the petitioner by filing this Constitutional petition before this Court.
2. It is contended forcefully by the learned counsel that the revision itself was incompetent because amendment was allowed by the learned trial Judge. The principal argument of the learned counsel is that there was no authority vested in the learned revisional Court to reject the plaint of the petitioner under Order 7, Rule 11, C.P.C. because admittedly no suit was pending decision before him. In other words the contention is that the relief which was not asked for by the learned counsel cannot be granted to him by the Court. In support of his plea, learned counsel has relied upon Pakistan through the Secretary, National Assembly v. Khondkar Ali Afzal and others (PLD 1960 SC (Pak.) 1, Ch. Ahmad Din and others v. The Australasia Bank Limited, Bhalwal (1971 SCMR 507), Khurshid Begum v. Munawar Bibi and others (PLD 1990 Lahore 73), Al-Mehran Builders v. Karachi Development Authority, etc. (1987 MLD 454) and Gaman, etc. v. Province of the Punjab etc. (1989 MLD 4605). Learned counsel appearing on behalf of the contesting respondent argues that the learned revisional Court was fully competent to reject the plaint because on the face of it, it did not disclose any cause of action. On merits, learned counsel states that he has purchased the property for a valuable consideration. He relies upon Abdul Aziz Shah, etc. v. Abdul Ghafoor and another (1985 SCMR 221), Muddasar Hussain v. Mst. Kaneez Fatima (PLD 1986 Lah. 140) and Gas Development Corporation v. Lt.-Col. S Ahmad (PLD 1970 Kar. 332) in support of his plea.
3. I have heard the learned counsel for the parties at considerable length and have also gone through the record with utmost care. It may be noted that the revision petition was assigned to learned Additional District Judge, Mr. Farman Ali by the learned District Judge for its hearing and disposal. The perusal of the record shows that the revision petition was filed against an interim order whereby the learned trial Judge allowed the petition/plaintiff to introduce certain amendment in the suit. In my view, the learned revisional Court surely travelled beyond its jurisdiction in rejecting the plaint itself. Admittedly the suit of the parties was not pending adjudication before the learned revisional Court. Even otherwise it is established that the suit was not assigned by the learned District Judge for its adjudication to the learned Additional District Judge within the meaning of section 24 of C.P.C. The revision alone was entrusted to him for its hearing. This being so, the learned Additional District Judge was required under law to hear and decide the revision and certainly not the suit. As already noted above, the suit was fixed for recording evidence of the petition-plaintiff on the basis of issues having arisen out of the, pleadings of the parties. The learned Judge, therefore, exercised the jurisdiction which was not at all vested in him by law. He was simply required to decide the revision petition pending before him within the meaning of section 115, C.P.C. This was not done by the learned Court below. It may also be observed that the learned revisional Court did not follow the earlier order of this Court dated 25- 10-1989, whereby a clear direction was issued to the learned trial Judge to decide the suit on or before 31-1-1990.. In other words, it was ordered by this Court that the suit between the parties shall be decided on its merits. In presence of the said direction by this Court, there was no other way open to the Courts below under the law but to decide the suit on its merits after recording evidence of the parties especially keeping in view the issue No.4. A property of substantial value is definitely involved in the suit. 1, therefore, hold the view that the judgment of the learned Additional District Judge does suffer from an illegality which is apparent on the very face of the record. By accepting this petition, the impugned judgment is hereby set aside by declaring it without lawful authority and of no legal consequence. The suit of the parties shall, therefore, be deemed to be pending adjudication on merits before the learned. Civil Judge. He is, however, directed to conclude the trial of the suit within next four months.