2015 C L C 752

2015 C L C 752

[Balochistan]

Before Muhammad Noor Meskanzai, CJ

ABDUL HAMEED and 9 others----Petitioners

versus

KHURSHEED AHMED and 12 others----Respondents

Civil Revision No.192 of 2006, decided on 30th January, 2015.

(a) Civil Procedure Code (V of 1908)---

----O. VII, R. 11(d)---Specific Relief Act (I of 1877), S.42---Suit for declaration---Plaint, rejection of---Scope---Decree with regard to suit property had already been passed---Present suit was incompetent---Court, on presentation of plaint was bound to apply its mind independently over the facts of the case and conclude whether the suit was competent and maintainable---Trial Court had failed to adhere to the provisions of O.VII, R.11, C.P.C. which was mandatory in nature and did not apply its judicial mind---Present case would fall within clause (d) of O.VII, R.11, C.P.C.---Court was required to remain within the domain of plaint while examining the same under O.VII, R.11, C.P.C. and conclude whether suit was not hit by the provisions of O.VII, R.11, C.P.C.---No other document except the contents of plaint or the admitted documents placed by the plaintiff was to be taken into consideration for such purpose---Court was bound to reject the plaint prior to issuing notice to defendant if on perusal, it was hit by any of the provisions of O.VII, R.11, C.P.C.---Deviation of procedure by the Trial Court had culminated in entertaining a non-maintainable suit and had initiated incompetent proceedings---Law did not allow the continuity of frivolous litigation and an incompetent suit should be buried at its very inception---Revision was dismissed, in circumstances.

            Raja Ali Shan v. Messrs Essem Hotel Limited and others 2007 SCMR 741; S.M. Shafi Ahmad Zaidi through Legal Heirs v. Malik Hassan Ali Khan (Moin) through Legal Heirs 2002 SCMR 338 and Nasrullah Khan v. Mukhtar-Ul-Hassan PLD 2013 SC 478 rel.

(b) Civil Procedure Code (V of 1908)---

----S. 12(2)---Allegation of practising fraud upon the court by the beneficiary of the proceedings was sin qua non for filing an application under S.12(2), C.P.C.

            Rehmatullah Barech for Petitioners.

            Shah Muhammad Jatoi for Respondents Nos.1 to 9.

            Tariq Ali Tahir, Addl. A.-G. for Respondents Nos.11 to 13.

            Date of hearing: 28th November, 2014.

JUDGMENT

            MUHAMMAD NOOR MESKANZAI, C.J.--- Instant petition calls in question the legality, propriety and validity of the judgment and decree dated 17th May, 2006, passed by the learned Majlis-e-Shoora, Lasbella at Hub, whereby the decree dated 17th March, 2006, passed by the learned Qazi, Lasbella at Uthal was reversed and the suit filed by the plaintiffs was dismissed.

2.         Facts of the case, in brief, are that the plaintiffs filed a suit for declaration, correction, cancellation of mutation No.18, Khasra Nos.119 and 120, Mouza Bhagyar and permanent injunction in the court of learned Qazi Lasbella at Uthal. It was the case of the plaintiffs that the plaintiffs and defendant No.6 (Hando son of Master) are owners of the lands bearing Khasra Nos. 119 and 120/3 measuring 17.3.19 acres to the extent of 3/4 and 1/4 respectively (hereinafter called the disputed lands). It was averred in the plaint that during settlement, the disputed lands were wrongly entered in the name of Government of Balochistan i.e. defendant No.7/respondent No.11 and taking benefit of the same defendants Nos.1 to 5 by manipulation, on the basis of a fake document got entered the disputed lands in their name from the court of defendant No.7 vide mutation No.47. It was further averred in the plaint that the defendants Nos.1 to 5 after fourteen years i.e. in the year 1991, by concealment of earlier decisions of the revenue courts, on the basis of earlier forged document approached to the court of Qazi by filing a suit for declaration and mutation. The defendant No.7 was also made party as defendant, who in connivance with the defendants No.1 to 5 concealed the factual position and acceded the claim of defendants Nos.1 to 5. Consequently, the learned Qazi decreed the suit of defendants Nos.1 to 5 and accordingly vide mutation No.18 the disputed property was entered in the name of defendants Nos.1 to 5. It was further averred that in the year 1995, the defendant No.6 in connivance with Muhammad Kazim son of Haji Muhammad Hashim Ronjha filed an application under section 12(2), C.P.C. in the court of Qazi claiming his ownership over the disputed property. The application was dismissed by the learned Qazi, against the dismissal the defendant No.6 filed an appeal before the Majlis-e-Shoora, a revision petition before the High Court and also civil petition before Hon'ble Supreme Court of Pakistan, but the same were decided against the defendant No.6. It was stated that the plaintiffs came to know about the alleged disputed mutations on receipt of the dispossession order issued by the revenue authorities etc.

3.         The claim of plaintiffs was refuted by the defendants Nos.1 to 5, as well as the defendants Nos.7 to 9 by way of filing separate written statements wherein besides raising a couple of legal objections the suit was contested on merits as well.

4.         Out of the pleadings of parties the trial court framed as many as six issues.

5.         After recording evidence pro and contra and recording the statements of parties the learned trial court decreed the suit vide judgment and decree dated 17th March, 2006. Feeling aggrieved of the same the defendants filed appeal before the Majlis-e-Shoora, Lasbella at Hub which was accepted vide judgment and decree dated 17-5-2006, hence; the instant revision petition.

            On 31st October, 2014 after hearing the parties at some length keeping in view the contents of the plaint, a question was posed to the learned counsel for the petitioners regarding competency and maintainability of the suit. For the sake of facility the order is hereby reproduced:---

            "During the course of arguments when attention of learned counsel for the petitioners was invited to the contents of plaint where there is a categoric admission to the effect that prior to filing of the suit in question, a suit pertaining to same subject matter was filed by the respondents Nos.1 to 5 against the Government of Balochistan perhaps in the year 1991. The suit was decreed and according to learned counsel for private respondents the appeal filed against the said decree was dismissed by the Court of Majlis-e-Shoora. The plaint further reveals that the said decree was called in question by filing an application under section 12(2), C.P.C. by Hando and one Kazim was dismissed by the Court of Qazi, however, civil revision was dismissed by this Court and order passed by this Court was maintained by the Hon'ble apex Court. Upon query, in such state of affairs how the fresh suit could be competent. Learned counsel for the petitioners requested for time to go through the proposition."

6.         Heard the learned for the parties. The learned counsel for the petitioners stated that the petitioners were ignorant of any proceedings i.e. the basic suit filed in the year 1991 or the subsequent application filed by Handu and Muhammad Kazim, therefore, the said judgment may not prejudice the right of the plaintiffs particularly when they have succeeded to establish their claim. It was maintained that the judgments referred to and relied upon by the Majlis-e-Shoora are not part and parcel of the record, the judgment rendered by the trial court reflects true prospect of the case, therefore, the appellate court erred in setting aside the judgment and decree of the trial Court. It was urged with vehemence that the impugned judgment suffers from non-compliance of Order XLI, Rule 31, C.P.C., as such; liable to be set aside. The learned counsel alternatively maintained that the suit could be treated as an application under section 12(2), C.P.C.

            The learned counsel for the respondents vehemently opposed the submissions by maintaining that the suit as per the contents of the plaint being incompetent was liable to have been dismissed. It was further maintained that without prejudice to the above submission even otherwise the suit is hopelessly barred by time as well; therefore, the judgment passed by the appellate Court is unexceptional.

7.         I have considered the arguments advanced by the learned counsel for the parties and gone through the available record. The perusal of record reflects that there can be no two opinions that the suit was absolutely incompetent. A bare reading of paras-5, 6 and 7 of the plaint would reveal that there is a categoric admission of the plaintiffs that a decree with respect to the disputed property in favour of the respondents Nos.1 to 5 has been passed by Qazi Lasbela way back in the year 1991. Secondly, an application under section 12(2), C.P.C. assailing the said decree was filed by the respondent No. 6 Handu and one Muhammad Kazim. The application under section 12(2), C.P.C. was also dismissed by the trial Court and the order was upheld even by the Hon'ble apex Court. It is really painful to observe that the petitioners while filing this petition have not annexed all the copies of documents mentioned in the plaint and that of the application under section 12(2), C.P.C., however, the contents of the plaint would have not allowed the suit further to have been proceeded with. For the sake of convenience the relevant Paras from the plaint are hereby reproduced:

8.         Now the question that crops up is whether in view of clear, categoric and unequivocal admission by the plaintiffs regarding the filing of the earlier suit and the application under section 12(2), C.P.C. by respondent No.6, the present suit could have been competent and maintainable? the unhesitant and legal answer to the query shall be in negative. Furthermore; the law stands settled on the subject that on presentation of plaint, the procedure provided by the C.P.C. within the meaning of the provisions of Order VII, Rule 11, C.P.C. being mandatory requires the court to apply its mind judiciously over the facts of the case and thereby to conclude whether the suit is competent and maintainable or otherwise? Analyzing the plaint, at such touch stone, it can safely be concluded that the trial Court completely failed to adhere to this mandatory provisions of law. The trial Court did not apply its judicial mind. Bare reading of Order VII, Rule 11, C.P.C. reveals that the plaint shall be rejected in the following cases:---

"(a)       …………………………………………………………………………….

(b)        …………………………………………………………………………….

(c)        …………………………………………………………………………….

(d)        where the suit appears from the statement in the plaint to be barred by any law."

9.         The case in hand on all fours falls within the seisin of clause (d) of Order VII, Rule 11, C.P.C. No doubt, while examining the plaint under Order VII, Rule 11, C.P.C., the court is required to remain within the domain of the plaint and to conclude therefrom as to whether the suit is not hit by the provisions of Order VII, Rule 11, C.P.C. Of course, no other document except the contents of the plaint or the admitted documents in support of the plaint placed by the plaintiff(s) is to be taken into consideration for such purpose. Had the trial Court applied judicial mind over the facts of the case there would have been no occasion for the trial court even to have had issued notices to the respondents. The non-compliance of this mandatory provision reflects the incompetence and inefficiency of the Presiding Officer. The law casts a duty upon the Courts to reject a plaint, if on a perusal thereto, it is hit by any of the provisions of Order VII, Rule 11, C.P.C. prior to issuing notice to defendant. By holding the view I am fortified by the dictum laid down in the judgment titled as `Raja Ali Shan v. Messrs Essem Hotel Limited and others' reported in 2007 SCMR 741 (relevant at page-750) wherein it was observed as under:---

"10.      It is pertinent to mention here that in view of the Order VII, rule 11, C.P.C. it is the duty of the Court to reject the plaint if, on a perusal thereto, it appears that the suit is incompetent, the parties to the suit are at liberty to draw Courts' attention to the same by way of an application. The Court can, and, in most cases hear counsel on the point involved in the application meaning thereby that the Court is not only empowered but under obligation to reject the plaint, even without any application from a party, if the same is hit by any of the clauses mentioned under rule 11 of Order VII, C.P.C."

10.       The deviation of the procedure by the trial Court culminated in entertaining a non-maintainable suit and initiating incompetent proceedings which remained pending almost for 14 years. The precious public time was wasted, parties stood subjected to mental agony and heavy costs which is neither the aim of law nor the object of justice. The law does not allow the continuity of frivolous litigation, an incompetent suit must be buried at its very inception. In this regard I am supported by the judgment of the Hon'ble apex Court reported in 2002 SCMR Page-338 (S.M. Shafi Ahmad Zaidi through Legal Heirs v. Malik Hassan Ali Khan (Moin) through Legal Heirs relevant at page 342), wherein it has been held as under:---

            "Provisional transfer order does not, ipso facto, confer absolute title over the property. Admittedly, this case is not governed by section 9 of the Special Relief Act. Without clear title the suit for possession could not be filed. The Government gave the land to the Society and the latter surrendered it back to the former. The predecessor-in-interest of the petitioners had no independent right. His right, if any, was through the Society, and it ceased to exist before it became perfect and enforceable in law. It is the requirement of law that incompetent suit shall be buried at its inception. It is in the interest of the litigating parties and the judicial institution itself. The parties are saved with their time and unnecessary expenses and the Courts get more time to devote it for the genuine causes. The findings of learned Single Judge and of Division Bench are based upon material available on record and no legal infirmity has been pointed out. Under the circumstances, the plaint was rightly rejected "

11.       Now adverting to the second limb of the argument that the suit might have been treated as an application under section 12(2), C.P.C. This argument looses its significance for a variety of reasons. Firstly; because for filing of an application under section 12(2), C.P.C., the allegation of practicing fraud upon the court by the beneficiary of the proceedings is sine qua non. Applying this principle the contents of the plaint absolutely do not contain any allegation of practicing fraud upon courts by the respondents Nos.1 to 5. Secondly; an application under section 12(2), C.P.C. had already been filed by the present respondent No. 6 and one Muhammad Kazim, the application was dismissed by the trial Court and as per the contents of the plaint (para-7) the dismissal order was maintained up to the Hon'ble Supreme Court. Thirdly; the suit, even if treated as an application under section 12(2), C.P.C. the same is hopelessly barred by time because in the plaint the plaintiffs had not stated that they were ignorant and unaware about the suit filed by the respondents Nos.1 to 5 and the subsequent application under section 12(2), C.P.C. filed by the respondent No.6 and Muhammad Kazim. Though in the plaint the plaintiffs have stated that they were ignorant of the entries, however; no statement regarding non-awareness or ignorance of the proceedings i.e. suit and application under section 12(2), C.P.C. is available. Fourthly, according to the plaintiffs own admission the judgment on such an application has attained finality up to the Hon'ble apex Court, how an application under, section 12(2), C.P.C. could be filed in the trial Court because in the given circumstances of this case the trial Court is not the proper forum for such an application, particularly when no such request had been made, even before this Court an half hearted and alternative argument was made. In view of above stated circumstances the trial Court could not treat the suit as an application under section 12(2), C.P.C. Reliance is placed on the judgment titled as Nasrullah Khan v. Mukhtar-Ul-Hassan reported in PLD 2013 SC page 478 (relevant at page 479). Relevant observations there from are reproduced herein below:---

            "Heard. On the analysis of the law cited before us, we find that the judgment reported as Muhammad Aslam (supra), has no nexus to the proposition at hand with respect to those decisions which are affirmed in appeal or the revision, and there is no element of modification or reversal; because, there can be no cavil to the proposition and the two opinions with regards to the situation that where a decree/order has been modified or reversed by the Appellate or the Revisional Court, it shall be that decree/order, which shall be final in nature, for the purposes of section 12(2), C.P.C., and accordingly the application can only be initiated before such forum which has altered the verdict. As in Aslam's case, the decree was modified by the learned High Court, so it was rightly held by this Court that the application (12(2), C.P.C.) could competently be filed before it. In the other judgment reported as Khawaja Muhammad Yousaf v. Federal Government through Secretary, Ministry of Kashmir Affairs and Northern Areas and others (1999 SCMR 1516); the facts of the matter are:--- the order passed by the Board of Revenue (BOR), when challenged in the learned High Court, in its constitutional jurisdiction, was not interfered with (note: however from a portion of this judgment an impression can also be gathered that such order of BOR was reversed by the learned High Court); the application before the learned High Court under section 12(2), C.P.C. filed by an aggrieved person was allowed by the said Court and the question which came up for the resolution before the apex Court was "which of the judgments/orders can be treated as final judgment/order in terms of subsection (2) of section 12, C.P.C.". And this court held "If this Court merely reaffirms a judgment or order of a High Court by refusing leave (emphasis supplied by us), the final judgment in terms of subsection (2) of section 12, C.P.C. will be of the High Court and not of the Supreme Court. However, if the Supreme Court, reverses a judgment of a High Court and records a finding on question of fact or law contrary to what was held by the High Court, in that event the final judgment or order would be of the Supreme Court for the purpose of subsection (2) of section 12, C.P.C. In this view of the matter, the final judgment in the case in hand was of High Court as it reversed the findings recorded the forums provided under the Settlement Law" (note: the underline portion of the judgment does not seem to be in line with the facts of the case; as the order of the BOR was upheld by the High Court). In the case of Sarfraz ibid, the judgment in appeal passed by the learned District Judge was challenged before the learned High Court in revision which was withdrawn, thus it was enunciated "whereas the revision filed before the High Court was withdrawn on 17-6-1989 without deciding it on merits, therefore, High Court had no jurisdiction to entertain and decide the application" (note: i.e. the application was under section 12(2), C.P.C. The other cases which have been cited at the bar by the learned counsel for the petitioners, more or less, are in the same context and in line with the law laid down in Khawaja Muhammad Yousaf dictum. But in none of the matters, the principle of merger has been taken into account, which concept/rule is imminently established and recognized by now, and is lucidly comprehended and is applied in our system of dispensation of justice and the jurisprudence. It is well settled on the basis of merger principle, that when a judgment and decree of a Court below is assailed in appeal or revision before the higher forum and it is affirmed by that (higher) forum, for all intents and purposes, the decree/order of the forum below merges into the decree of the higher forum, meaning thereby, that it is integrated, implanted, inculcated, infixed and instilled into the decree of the higher forum and becomes the decree/order of the later forum for all legal intents and implications. It is on account of this established principle (of merger), that in the case reported as Maulvi Abdul Qayyum v. Syed Ali Asghar Shah and 5 others (1992 SCMR 241) it has been held "It appears that in holding that the period of limitation for execution of the decree commenced from the date of the decision by the Appellate Court, the rule that the decree of the Court of first instance, merged into the decree of Appellate Court, which alone can be executed, was not present to the mind of the learned Judge. It is to be remembered that till such time, an appeal or revision from a decree is not filed, or such proceedings are pending but no stay order has been issued, such decree remains capable of execution but when the Court of last instance passes the decree only that decree can be executed, irrespective of the fact, that the decree of the lower Court is affirmed, reversed or modified.' This is the crux of the matter. From the above it is clear that for all legal purposes, it is the final decree/order of the last Court in the series, even if such decree etc. be of affirmation, which has to be executed and should be considered and treated to be the final judgment/ decree/order in terms of section 12(2), C.P.C. for approaching the forum. Thus, notwithstanding the reversal or modification of the decree/order, if the decree/order of a forum below, which has been affirmed by the higher forum on merits, both on the points of the facts and the law involved therein, it shall be that decree/order, which attains the status of the final decree/order etc. within the purview of section 12(2), C.P.C. It is so because the higher forum has not only endorsed the point(s) of fact and law and has agreed with the reasoning and conclusion of the lower forum, but may be, has upheld the decision(s) challenged before it, by substituting and supplying its own reasons and by substantially doing away with the reasoning of the decision(s) challenged before it. Thus, it would be ludicrous to conceive and hold that the questions of facts and law which have been finally approved, endorsed, affirmed and settled by the higher forum should be allowed to be examined, annulled and obliterated by a forum below, whose decision stands affirmed in the above manner. Therefore, we are of the considered view that the impugned judgment in this case has been rightly founded on the principle of merger; however before parting it may be observed that in the case Khawaja Muhammad Yousaf (supra), an exception has been taken to the rule of merger in relation to the apex Court, particularly in respect of those judgments/orders which are affirmed by this Court in the sense that leave has been refused."

            For the fore going reasons, since the suit was incompetent and not maintainable, therefore, merits of the case discussed by either of the forums below would not help the petitioners. Thus; it is concluded that as per the contents of the plaint the suit in hand stands hit by the provisions of Order VII, Rule 11, C.P.C. clause (`d'), so the findings of the appellate court with regard to issue No. 2 are maintained, thus the revision petition has no force which is dismissed with no order as to cost.

AG/21/Bal.                                                                                           Revision dismissed.