PLJ 2008
[D.I. Khan Bench]
Present: Muhammad Alam Khan, J.
MUHAMMAD MUSHTAQ--Petitioner
versus
Mst. ABDA NASREEN--Respondent
Civil Revision No. 178 of 2007, decided on 20.5.2008.
Civil Procedure Code, 1908 (V of 1908)--
----O. VII, R. 11--Specific Relief Act, (I of 1877), S.
42--Declaratory suit on the basis of gift--Rejection of plaint--Issues had
already been framed which had to be decided after recording of pro & contra
evidence--Disputed questions of facts were involved and a similar prayer had
already been turned down--Order of rejection of plaint was not
sustainable--Revision accepted. [P.
196] A
Civil Procedure Code, 1908 (V of 1908)--
----O. VII, R. 11--Rejection of plaint--Critaria
for--Held: Once issues are framed and Court enters upon recording of evidence,
then the matter has to be taken to its logical end and resort should not be
made to the summary provisions of law. [P.
196] B
Civil Procedure Code, 1908 (V of 1908)--
----S. 11 & O. VII, R. 11--Rejection of
plaint--Res-judicata--Court had already, after applying its mind, turned down
the request for rejection of plaint--Held: As the matter was between same
parties, with respect to the same gift deed and parties were litigating under
the same title, so subsequent order to reject the plaint would serve as res
judicata. [P. 196] C
Civil Procedure Code, 1908 (V of 1908)--
----O. VII, R. 11--Rejection of plaint--Scope--Held: If
the defendant agitates that even after the trial, plaintiff is going to be
unsuccessful, such fact cannot be considered as a ground for rejection of
plaint specially when issues have already been framed and the parties are put
to produce their evidence. [P. 196] D
1993 MLD 2464 & 1993 MLD 1005, ref.
M/s. Rustam Khan Kundi and Fazl-ur-Rehman Baloch,
Advocates for Petitioner.
Mr. S. Mastan Ali Zaidi, Advocate for Respondent.
Date of hearing: 20.5.2008.
Order
Muhammad Mushtaq petitioner has brought the instant
revision petition against Mst. Abida Nasreen through which he has challenged
the order dated 27.2.2007 of the learned District Judge, D.I.Khan vide which,
by concurring with the order of learned Civil Judge-I, D.I.Khan regarding
rejection of plaint, Appeal No. 12 of 2006 filed by the petitioner has been
dismissed.
2. Briefly
narrated the facts of the case are that Mushtaq son of Allah Bakhsh filed a
suit against Mst. Abida Nasreen and others for declaration to the effect that
he alongwith proforma Defendant No. 2 Muhammad Shahid is owner of the suit
house fully detailed in the head notes of the plaint. In the alternative relief
for possession by way of partition was also sought. The learned Senior Civil
Judge summoned the defendants-respondents, out of whom, Defendant No. 1 Mst.
Abida Nasreen appeared and submitted her detailed written statement on
18.5.1999. On the same date, alongwith the written statement an application was
also submitted for rejection of the plaint under the provisions of Order VII, Rule
11 CPC. The learned trial Court, after calling for the replication from
Muhammad Mushtaq plaintiff-petitioner herein, and hearing the learned counsel
for the parties, vide order dated 14.2.2000 dismissed the application and the
case was posted for filing of list of witnesses and evidence. From that date
onward, the case was being posted for recording of evidence. It is pertinent to
note that against that order, no appeal or revision has been filed which has
attained finality.
3. During the
course of trial, it so happened that Mst. Abida Nasreen again submitted an
application on 29.11.2005 praying therein that as the statement of Ehsan-ul-Haq
Petition Writer has been recorded wherein this witness admitted that the
gift-deed impugned in the civil suit does not find mention in his register,
thus, again it was prayed that the gift-deed being unregistered and the
plaintiff has filed the suit after five years of execution of deed, requested
for rejection of plaint under the provisions of Order VII, Rule 11 C.P.C. The
learned trial Court again, after calling for replication from the
plaintiff-petitioner and hearing their learned counsel and considering the data
available on the record, vide impugned order dated 18.1.2006 rejected the
plaint of the plaintiff-petitioner under Order VII, Rule 11 C.P.C. Feeling
aggrieved the petitioner filed an appeal before the learned District Judge,
D.I.Khan and the learned Appellate Court while concurring with the learned
lower forum, vide Appeal No. 12/2006 dismissed the same on 27.2.2007. Mushtaq
petitioner has filed the instant revision petition to impugn the orders of the
two Courts below.
4. Pre-admission
notice was issued to the respondent pursuant to which S. Mastan Ali Zaidi
Advocate appeared on behalf of Respondent No. 1.
5. It was
submitted by the learned counsel for the petitioner that the trial Court could
not reject the plaint without framing of issues and giving opportunity to the
parties to lead pro and contra evidence with respect to their contentions. It
was also argued that disputed questions of law and facts were involved and the
learned trial Court could not summarily reject the plaint especially in the
circumstances when a similar prayer of Respondent No. 1 for rejection of the
plaint had been turned down by the learned trial Court on 14.2.2000, against
which, the remedies of appeal and revision have not been exhausted by the
respondent which had attained finality and would definitely serve as
res-judicata and the learned trial Court as well as the learned Appellate Court
have fallen into an error in non-suiting the plaintiff-petitioner.
6. S. Mastan Ali
Zaidi, learned counsel for the respondent submitted that once it is proved on
record that the plaint does not disclose a cause of action and on the evidence
so far recorded if no prima-facie case was in existence in favour of the
plaintiff-petitioner, the learned trial Court has rightly rejected the plaint
in spite of the fact that a similar prayer of Respondent No. 1 had already been
turned down by the learned trial Court.
7. I have given my
anxious consideration to the facts and circumstances of the case.
8. The learned
trial Court had called for the written statement out of which contentious
issues had been framed which had to be decided by the learned trial Court after
recording of pro and contra evidence. As the disputed questions of facts were
involved, so, the learned trial Court was not justified to summarily non-suit
the plaintiff-petitioner by way of rejection of the plaint especially in the circumstances,
when once, a similar prayer had been turned down by the learned trial Court and
thus, the Appellate Court too, has fallen into an error in maintaining the same
order.
9. It is an
established principle of law that once issues are framed and the Court inters
upon recording of evidence, then, the matter has to be taken to its logical end
and resort should not be made to the summary provisions of law as contained in
the Code of Civil Procedure.
10. In the
case-in-hand, annexed with the written statement was an application for
rejection of the plaint and the learned trial Court, after applying its mind,
had earlier turned down the request for rejection of the plaint vide order
dated 14.2.2000 and the subsequent order will definitely serve as res judicata
as the matter was between the same parties with respect to the same gift-deed
and the parties were litigating under the same title.
11. The learned
trial Court, after framing of the issues, ought to have recorded the evidence
and decided the matter on merits as held in the case of M/s. Hoechst Pakistan
Ltd: Vs. M/s. Cooperative Insurance Societies and others (1993 MLD 2464
Lahore).
12. Furthermore,
the law is clear and crystal on the point that for the rejection of plaint the
same must be shown to be barred under some provisions of law. The Court must at
that stage has only to see the averments
made in the
plaint and the
same has to be accepted, on its face value, to be correct. If the
defendant agitates that even after the trial the plaintiff is going to be
unsuccessful, this fact too, cannot be taken into consideration because the
same is not a ground for rejection of the plaint especially when issues are
framed and the parties are put to produce their respective evidence pro and
contra as held in the case of Ghulam Dastagir and others. Vs. Mst. Marian and
others (1993 MLD 1005 Karachi).
13. In view of the
facts and circumstances of the case narrated above, the revision petition is
accepted, the impugned orders of the Courts below are set-aside and the case is
sent back to the learned Civil Judge-I, D.I.Khan for decision of the same on
merits after affording the parties an opportunity to lead evidence in support
of their respective contentions. The parties are directed to appear before the
trial Court on 07.6.2008.
(J.R.) Petition Accepted