Stereo. H C J D A 38.

Judgment Sheet

IN THE LAHORE HIGH COURT LAHORE

JUDICIAL DEPARTMENT

C.R.No.436 of 2010
JUDGMENT

Muhammad Anwar and 27 others

VERSUS

Province of Punjab and 3 others

Date of hearing: 13.01.2015

Petitioner by: M/S Sh. Naveed Shahryar and Bashir Ahmad

Mirza, Advocates.

Respondent by: Ch. Aish Muhammad Khan Sara, Advocate (for

respondent No.4)
Dr. Muhammad Irtiza Awan, Advocate (for
respondent No.3).
Malik Abdul Aziz Awan, Assistant Advocate
General, Punjab.

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Muhammad Khalid Mehmood Khan, J. On 22.02.2005 the

petitioners filed a suit against the respondents for declaration with

permanent injunction praying that the Member, Board of Revenue /

Chief Settlement Commissioner, Lahore on 29.1.2005 passed order in

violation of the judgment dated 20.02.1998 of Lahore High Court

Multan Bench at Multan hence the order dated 29.1.2005 of

respondent No. 3 be declared without lawful authority. The

respondents filed contesting written statements, the learned trial court

framed the issues and fixed the case for recording the evidence. The

respondent before recording the evidence filed an application under

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section 151 CPC praying that the suit be dismissed with special costs

being not maintainable. The petitioners filed reply to the application

and opposed the application. The learned trial court after hearing the

parties on 20.5.2009 dismissed the suit. The petitioners filed appeal

against order dated 20.05.2009 which was dismissed on 03.12.2009,

hence, the present revision petition.

2. Learned counsel for the petitioners submits that learned trial

court as well as the learned first appellate court was not having

jurisdiction to dismiss the suit without recording the evidence

especially when the issues have already been framed; the learned trial

court maximum can reject the plaint that too under Order VII Rule 11

CPC and not under section 151 CPC. Learned counsel submits that

both the courts below have relied upon those documents for forming

its opinion which were not the part of record; the petitioners are non-

suited without holding any inquiry and that the two courts below acted

in violation of established principle of law that suit could not be

dismissed without recording the evidence. Learned counsel has relied

on Punjab Board of Revenue, Employees Cooperative Housing

Society Limited versus Additional District Judge, Lahore and others

(2003 SCMR 1284), Order II Rule 2 CPC, Q.B.E. Insurance

(International) Ltd. versus Jaffar Flour and Oil Mills Ltd. and others

(2008 SCMR 1037), Saleem Malik versus Pakistan Cricket Board

(PCB) and 2 others (PLD 2008 SC 650) and Federation of Pakistan

through Secretary Ministry of Defence and another versus Jaffar Khan

and others (PLD 2010 SC 604).

3. Learned counsel for the respondents submits that the learned

C.R.No.436/2010 3

courts below have rightly dismissed the petitioners’ suit as it was not

maintainable for the simple reason that the matter between the parties

was finally settled even at the level of Hon’ble Supreme Court of

Pakistan. Learned counsel submits that both the courts below were

having jurisdiction to treat the application of section 151 CPC, the

application under Order VII Rule 11 CPC, the suit was hit by doctrine

of resjudicata. He has relied on Arshad Ali and 6 others versus

Muhammad Tufail through L.Rs and others (2013 CLC 632), Ghulam

Rasool son of Kalu versus Ghulam Rasool and others (2007 SCMR

1924), Messrs Flying Kraft Paper Mills (Pvt.) Ltd. versus Central

Board of Revenue and others (2000 SCMR 945), Q.B.E. Insurance

(International) Ltd. versus Jaffar Flour and Oil Mills Ltd. and others

(2008 SCMR 1037) and Hussain Shah versus Bano Bibi and 9 others

(2007 CLC 680). Learned counsel adds that mentioning of wrong

provision of law is not fatal, the court has the power to treat the

application under correct provision of law.

4. Malik Abdul Aziz Awan, learned Assistant Advocate General,

Punjab supported the arguments of learned counsel for the

respondents and relied on Abdul Majid and others versus Abdul

Ghafoor Khan and others (1982 PSC 292) and submits that the

impugned judgments are perfectly in accordance with law. The

argument of learned law officer is that the learned trial court as well

as learned appeal court rightly dismissed the suit as the petitioners

admitted the earlier litigation between the parties, hence, after

admission of facts there was no need to record any evidence.

5. Heard. Record perused.

C.R.No.436/2010 4

6. The petitioners claim that their predecessor-in-interest had

mortgaged land measuring 497 Kanals, 11 Marlas detail of which is

given in para-1 of the plaint in favour of Hindu mortgagee who left

Pakistan in 1947 and the property was declared evacuee. The

predecessor-in-interest of the petitioners vide mutation No.1628 got

redeemed the mortgaged land against consideration of Rs.2,51,000/-,

the mortgage money. The respondents filed an application for setting

aside the mutation of redemption which was allowed and the

petitioners were forced to purchase the redeemed land being the

available land under the repealed settlement laws. The respondent

filed an application before respondent No.3 claiming that they are in

possession of land measuring 48 Kanal 17 Marlas, being the part of

land allotted to petitioners which is declared evacuee land and the

respondents are entitled for its transfer as they are in its possession,

the respondent No.3 after holding detailed inquiry allotted land

measuring 8 Kanals, 10 Marlas out of Khasra No.19/3, Square No.16

to respondents. Lahore High Court Bench at Multan on the

respondents’ challenge again on 20.02.1998 directed respondent No.3

to probe the respondents claim against land and proceeds according to

law. Respondent No.3 after holding detailed inquiry found that

respondents possession is only on the land measuring 8 kanal 10

marla hence they are entitled only for the transfer of said land only the

respondent No.3 thus passed a transfer order in favour of respondents

accordingly. The petitioners through the present petition have

challenged the transfer of land measuring 8 Kanals, 10 Marlas

transferred in favour of the respondents, claiming that order dated

C.R.No.436/2010 5

29.01.2005 is in violation of order dated 20.02.1998 passed by Lahore

High Court Bench at Multan. The respondents controverted the

petitioners’ assertions. Learned trial court framed issues on

23.06.2006 and fixed the case for recording of evidence but before

recording evidence respondents filed application under section 151

CPC asserting that respondent No.3 allotted land measuring 8 Kanals,

10 Marlas vide order dated 29.01.2005 to respondents in pursuance of

order dated 12.2.1998 passed in W.P.No.132-R/1981, the petitioners

assailed the said order dated 12.2.1998 through CPLA No.635-L/1998

which was dismissed on 28.12.1998.

7. The respondents also assailed the order dated 29.01.2005 of

respondent No.3 passed in their favour through W.P.No.46-R/2005

which was dismissed on 17.01.2006. After the dismissal of

W.P.No.46-R/2005, the order of respondent No.3 dated 29.01.2005

for transfer of land measuring 8 Kanals, 10 Marlas in favour of

respondents attained finality. It is further asserted that M/S Atta Elahi

etc. also challenged the order dated 29.01.2005 through civil suit titled

“Mst. Atta Elahi versus Province of Punjab” at Pakpattan and it was

dismissed on 15.05.2006; the learned trial court while dismissing the

suit held that till the order dated 17.01.2006 passed in W.P.No.46-

R/2005 is in field no suit is maintainable. The petitioners filed reply to

the said application and admitted the litigation between the parties

decided by the High Court and Hon’ble Supreme Court of Pakistan

but claimed that the respondent No.3 has failed to pass an order as

directed by the High Court.

8. The argument of learned counsel for the petitioners is that the

C.R.No.436/2010 6

learned trial court while deciding the application under section 151

CPC has wrongly held that the suit is not maintainable and dismissed

the suit by invoking the doctrine of resjudicata; the doctrine of

resjudicata cannot be invoked without recording the evidence, the

learned appeal court also pressed in to service the doctrine of estoppal.

9. The question arose whether the suit can be dismissed without

recording the evidence or there is a difference between the dismissal

of suit and rejection of plaint? Order VII Rule 11 CPC finds

mentioned the words “the rejection of plaint”, meaning thereby if the

ingredients in Order VII Rule 11 CPC are available in the plaint, the

court has the jurisdiction and powers to reject the plaint. The dismissal

of suit connotes that it is a final determination of controversy between

the parties meaning thereby the learned trial court can dismiss the suit

only after holding inquiry and recording the evidence. The rejection of

plaint provides or opens the door for the petitioners for filing a fresh

suit but in a case of dismissal of suit no fresh suit can be filed and

only statutory remedy is available against dismissal order. It is a

settled principle of law that doctrine of resjudicata can only be

invoked after recording the evidence and when the evidence is

recorded the documents could be read and relied upon for delivering

the judgment, in this case no evidence has been recorded nor any

document has been exhibited on record. The court dismissed the

instant suit on the ground of resjudicata without providing an

opportunity to the petitioner for repudiating the allegation.

10. It is settled principal of law that to decide the fate of plaint

under Order VII Rule 11 of the Code of Civil Procedure, averments in

C.R.No.436/2010 7

the plaint have to be read without looking at the defense and it has to

be seen whether on the basis of averments made in the plaint, Order

VII Rule 11 is attracted or not and from the averments made in the

plaint whether the jurisdiction of the Court is made out or not and

whether the suit is barred by any law or plaint does not disclose any

cause of action. Rejection of a plaint is a serious matter as it non suits

the plaintiff and eliminate the cause of action. It cannot be ordered

without satisfying the requirement of the above said provision.

Whether a plaint discloses a cause of action or not is a question of

fact, but whether it is factual controversy or not must be traced from

reading the plaint itself, for the said purpose the averments made in

the plaint in their entirety must be held to be correct. The test is, if the

averments made in the plaint are taken to be correct in their entirety, a

decree would be passed or not. In ascertaining whether the plaint

shows a cause of action, the court is not required to make an elaborate

enquiry into doubtful or complicated questions of law or fact. The

court should not even tentatively ascertain whether the claim set out in

the plaint by the Plaintiff is likely to succeed, the court has merely to

satisfy itself that the allegations made in the petition, if accepted as

true, would entitle the petitioner to the relief he claims. If accepting

those allegations as true no case is made out for granting relief no

cause of action would be shown and the petition must be rejected. The

court should not take into consideration the defenses which the

defendant may raise upon the merits; nor is the court competent to

make an elaborate enquiry into doubtful or complicated questions of

law or fact. If the allegations in the petition, prima facie, show a cause
C.R.No.436/2010 8

of action, the court cannot embark upon an enquiry whether the

allegations are true in fact, or whether the petitioner will succeed in

the claims made by him.

11. Therefore, if the plaint discloses some cause of action or raises

some questions which require to be adjudicated or decided by the

judge, the mere fact that the case is weak and not likely to succeed is

no ground for striking it out. But in the case of dismissal of suit the

consequences are different the effect of dismissal of a suit is

altogether different and distinct from the effect of rejection of the

plaint, for concluding whether the plaint discloses cause of action or

not. ? the pleas and documents of the defendants are not to be

considered. In case plaint is rejected under Order 7 Rule 11, CPC,

filing of a fresh plaint in respect of the same cause of action is

specifically, permitted under Rule 13 of Order 7, CPC. But where the

suit is dismissed, this will preclude the plaintiff to file a fresh suit on

the same cause of action. Rejection of plaint takes away the very basis

of the suit rendering as if there was no suit at all or that no suit was

instituted. Order of dismissal of suit while recognizing the existence

of a suit indicates its termination. While deciding the application

under Order 7 Rule 11, CPC, learned trial court ought not and could

not have dismissed the suit.

12. The Court while deciding the suit have to consider the

admissions as a whole and not in part. The provisions of Order XII

Rule 6 are discretionary and not mandatory and it is not incumbent on

the courts in all cases to pass a judgment upon admission especially, if

a case involves questions which cannot easily be sorted out while

C.R.No.436/2010 9

applying the Rule 6 Order XII Code of Civil Procedure, if the case is

such that it is not safe to pass a judgment on admission, the court may

in exercise of its discretion refuse to finally dispose of the same. It is

no more res integra that before a court can act under Order XII Rule 6,

admissions must be clear and unambiguous. When the admission is

not clear and unequivocal and the pleadings of the parties raise serious

preliminary pleas which are likely to non-suit a party, a court in its

discretion can refuse to pass a decree. It can also be not disputed that

the court is vest with discretion to ask for independent corroboration

of a fact not specifically denied in the pleadings considering the

peculiar nature of the facts and circumstances of the case. At the same

time, the court can suo moto pass judgment under Order XII Rule 6

where the parties have conceded the rights of other parties.

13. In the present case, the petitioners themselves have admitted

the facts of the final disposal of litigation between the parties

regarding same land. The petitioners have admitted that their mutation

of redemption was set-aside and they purchased the land being

available land, the Chief Settlement Commissioner (respondent No.3)

allotted land measuring 8 Kanals, 10 Marlas to respondents vide order

dated 29.01.2005. The respondents challenged the order dated

29.01.2005 through W.P.No.46-R/2005 claiming that they are entitled

for the transfer of land measuring 48 Kanals, 10 Marlas and not 8

Kanals, 10 Marlas; the said writ petition was however dismissed on

17.01.2006 meaning thereby the order dated 29.01.2005 attained

finality. Admittedly the petitioners have not assailed the order dated

29.01.2005 and the said order still holds field. The other issue as to
C.R.No.436/2010 10

how the Chief Settlement Commissioner passed order dated

29.01.2005 is also an admitted fact between the parties. The order

dated 29.01.2005 was passed in pursuance of order dated 12.02.1998

passed in W.P.No.132-R/1981 whereby this Court directed the Chief

Settlement Commissioner to re inquire the matter and then allot the

land to respondents according to their entitlement. The order dated

12.02.1998 was also assailed through CPLA No.635-L/1998 which

too was dismissed on 28.12.1998. Admittedly in these proceedings as

well as in proceedings in W.P.No.46-R/2005 the petitioners were

party so the dispute between the parties was finalized to the extent of

land measuring 8 Kanals, 10 Marlas.

14. Now the question is whether the judgment of High Court as

well as the Hon’ble Supreme Court of Pakistan is binding on the civil

court or not. The answer is in the affirmative. The matter between the

parties is finally settled and finally laid to rest to the extent of land

measuring 8 Kanals, 10 Marlas, hence, no civil suit was maintainable

against the order of transfer in favour of respondents.

15. The only question which require consideration is whether the

suit was dismissed or the plaint was rejected. As the respondents filed

an application under section 151 CPC by placing on record all the

facts finally settled between the parties and petitioners admitted all

these facts, hence, no question for further determination of any issue

arose. The learned civil court was thus within its rights to reject the

plaint under Order VII Rule 11 CPC. The dismissal of the suit for

invoking doctrine of resjudicata was not the correct interpretation of

law by the two courts below. The two courts below should have
 C.R.No.436/2010 11

treated the application under section 151 CPC the application under

Order VII Rule 11 CPC and should have rejected the plaint. Hence, I

accept the revision petition to the extent that the impugned orders

dated 20.05.2009 and 03.12.2009 will be deemed to be passed under

Order VII Rule 11 CPC and the plaint will be deemed to be rejected.

16. The revision petition is allowed in the above-said terms.

(Muhammad Khalid Mehmood Khan)

Judge

Announced in open Court on Feb. 11th of 2015

JUDGE

Approved for reporting

Najum*