PLJ 2003 Lahore 148
Present: mrs. FAKHAR-UN-NlSA khokhar, J. NIAMAT ALI and 3 others-Petitioners
versus Mst. SARDARAN BIBI and 4 others-Respondents
C.R. No. 1321 of 1998, heard on 18.9.2002 (i) Civil Procedure Code, 1908 (V of 1908)--
—S. 12(2)-Re-agitating matter in the same Court, about same land, same
parties and same disputed mutations on the pretext that at the time of
filing
judgment and decree of 1971, provisions of S. 12(2) C.P.C. were not
available was not warranted
where earlier petition, which was contested,
issues were framed, evidence was led by
parties and same related to same
cause of action, related to same
subject-matter and parties, had been
dismissed. [P. 149] A
(ii) Civil Procedure Code, 1908 (V of 1908)--
—0. VIII, R. 11 & S. 115-Rejection of plaint by appellate Court
assailed-
Appellate Court while
deciding appeal exercises all powers of Trial Court
and can decide and reject plaint under O.
VII, R. 11 C.P.C. as being
barred by law-Fresh suit on same
subject-matter relating to same cause >-
of action between same parties was
barred under 0. VII, R. 11 C.P.C. and
same was rightly dealt with by Courts
below. [P. 149] B
2000 YLR 1971; 1994 SCMR 826 ref.
Sardar Muhammad Ramzan, Advocate for Petitioners. S. Abid Mumtaz Tirmizi, Advocate for Respondents. Date of hearing: 18.9.2002.
judgment
Brief facts in this Civil Revision are that the petitioners filed a suit v for declaration in respect of agricultural land measuring 124 Kanals. ' Khatooni No. 192, Khasra No. 38 Killa Nos. 15/1, 16, 17, 23, 24, 25 Square No. 40 Killa No. 15 and Square-No. 41 Killa Nos. 3, 4, 5, 7, 8, 9, 11, 12, 13 mauza Dheengar Batt Tehsil and District, Sheikhupura challenging the mutation of Inheritance No. 433 dated 6.10.1968 and decree dated 24.4.1971 and Mutation No. 13. There was a prayer of temporary injunction as well. The application for temporary injunction was dismissed by the learned trial Court vide judgment and decree dated 24.11.1997. The petitioners filed an appeal against the .said judgment in the Court of learned District Judge, Sheikhupura and he vide judgment and decree dated 20.7.1998 dismissed the appeal and also rejected the plaint under Order VII, Rule 11 CPC holding that suit is barred by law.
2.
Arguments advanced by learned counsel for the petitioners
are
that the
learned District Judge had no jurisdiction to reject the plaint
without
framing the issues and hearing the arguments on legal issues; that
Section
12(2) CPC was inserted vide Ordinance X of 1980 and the impugned
judgment
and decree was passed on 24.4.1971, therefore, the said provision
of law
had no effect retrospectively and application was dismissed on that
very
ground. The suit of the petitioners was not barred by lav/ but it is fully
maintainable under the law. The impugned judgment being passed contrary
to facts and law is not
sustainable.
3.
Learned counsel for the respondents submitted that decree
was
challenged
by filing a petition Under Section 12(2) CPC. He produced
certified
copy of petition u/S. 12(2) CPC and the decree passed on it. Filing of
this petition was admitted
before the learned trial Court as well as before the
learned . appellate Court, where
the petitioners have
challenged the
ownership
possessory rights over the
disputed property. He
has also
challenged the decree dated 24.4.1971.
He also challenged the mutation of
inheritance and mutation of
decree. This petition u/S. 12(2) CPC was
contested by the adverse party. Issues were framed and the parties
produced
their respective evidence and vide judgment
and decree dated 23.11.1995 the
learned Civil Court dismissed the
application u/S. 12(2) CPC. This was
instead of challenging the same before
the competent forum the instant suit
for declaration challenging the
decree was filed on 21.3.1996.
4.1 have heard the learned
counsel for the parties and have perused the record. This is admitted by the
learned counsel for the petitioner that the petitioner filed petition u/S. 12(2) CPC, which was contested,
issues were framed, evidence was produced
and vide judgment and decree dated 23.11.1995 it was dismissed. The petitioners cannot re-agitate the
matter in the same Court about the
same disputed land, same parties and same disputed mutations on the pretext that at the time of filing the
judgment and decree of 1971 the provisions
of Section 12(2) CPC were not available. He himself has exercised his right through filing a petition u/S. 12(2) CPC
challenging the judgment and decree
in the petition u/S. 12(2) GPC. This was the right legal course adopted
by him. "Ghulam Zohra and others vs. Faisal
Farooq and others" (2000
YLR 1971) and "Jewan and others vs. Federation of
5. The second contention of the petitioners that the learned
appellate
Court cannot reject the plaint is groundless and is not convincing.
The
learned appellate Court while deciding the appeal exercises all the
powers
of the trial Court and can decide and reject the plaint under Order
VII, Rule 11 CPC barred by
law. Undoubtedly the instant civil suit is barred
under Order VII, Rule 11 CPC and the
judgment passed by the learned
appellate Court is unexceptionable.
Civil revision is dismissed being devoid
offeree.
(A.P.) Revision dismissed.