ABDUL WAHEED vs Mst. RAMZANU and otherss

ORDER

' CH. IJAZ AHMAD, J.--- Brief facts out of which present petition arises are that the land in question was allotted to predecessorin-interest of the respondents Nos.1 to 6 Noor Muhammad as Urban Evacuee land measuring 105 Kanals, 6 Marlas in Mauza Dera Ismail Khan on 2-8-1958 which was subsequently confirmed in his name on 13-8-1958. Inspection team of Settlement Department detected, the irregularity of allotment in favor of the predecessor-in-interest of the respondents Noor Muhammad in view of instructions of the Central Government, dated 11-2-1959 and consequently, Deputy Rehabilitation. Commissioner cancelled the allotment vide order, dated 21- 9-1963. The predecessor-in-interest of the respondents being aggrieved filed appeal before the Additional Settlement Commissioner who accepted the same vide order, dated 3-6-1965. The aggrieved person filed revision petition before the Settlement Commissioner who dismissed the same vide order, dated 14-10-1965. The Chief Settlement Commissioner issued notice to late Noor Muhammad under sections 10 and 11 of the Displaced Persons (Land Settlement) Act, 1958 which was consequently recalled by the Settlement Commissioner vide order, dated 3-7-1971. The department being aggrieved filed constitution petition in the Peshawar High Court which was dismissed on 11-11-1973. Thereafter, Chief Settlement Commissioner on a Government reference cancelled the allotment from the name of the predecessor-in-interest of the respondents Nos.1 to 6 vide order, dated 25-4-1974. The predecessor-in-interest of the respondents and other aggrieved persons filed four constitution petitions before the Peshawar High Court. The learned High Court accepted the constitution petitions vide judgment, dated 6-3-1985 and set aside the order of the Chief Settlement Commissioner, dated 25-5-1974. The aggrieved persons Mst. Nawabzadi Sitara Begum filed civil petition before this Court which was dismissed vide order, dated 16-6-1985. It is pertinent to mention here that the allotment in favor of the late Noor Muhammad included an area of land measuring 4 Kanals, 15 Marlas comprised in Khasra No,2669, corresponding to old Khasra No,3882/1575. The land situated in the aforesaid Khasra was allotted to Waris Ali Shah against his alleged verified claim in spite of the fact that same had already been allotted to late Noor Muhammad. One Fazal Aleem Beg posing himself as general power of attorney of Waris Ali Shah allegedly sold the said land to several persons vide sale Mutation No,1047 attested on 3-6-1977. The predecessor-in-interest of the respondents Nos.1 to 6 filed a suit for declaration and for physical possession as a consequential relief on the ground that he was the owner of the land in question against Waris Ali Shah and others in the Court of Senior Civil Judge, D.I. Khan on 1-2-1986. During the pendency of the suit predecessor of the respondents the aforesaid Noor Muhammad died on 12-4- 1987. His legal heirs respondents Nos.1 to 6 were brought on record who appointed the petitioner as their special attorney on 5-5-1987 to conduct on their behalf the proceedings in the civil suit. Legal representatives of late Noor Muhammad except Muhammad Nadeem Rana and Muhammad Rafique executed agreement to sell with the petitioner on 27-8-1987. The contents of the agreement reveal that respondents agreed to sell land measuring 2 Kanals and 15 Marlas out of Khasra No,2669 in dispute on payment of Rs,2,01,590 at the flat rate of Rs,72,500 per Kanal to the petitioner. The entire aforesaid amount Rs,2,01,590 had been received by the respondents with further stipulation that the petitioner was acting as special attorney in suit relating to the property in question and he was bearing all the expanses thereof, so in case of a decision of the suit in favor of respondents Nos.1 to 6, they will be bound to execute the registered sale-deed as well as mutation failing which petitioner shall be entitled to get a registered deed executed through the process of law. Respondents Nos.1 to 6 filed application to revoke/cancel the power of attorney in favor of the petitioner and the petitioner had also filed application to be impleaded as co-plaintiff or defendant under Order VI, rule 17, C.P.C. Before the trial Court. The learned trial Court accepted the application of the respondent and dismissed the application of the petitioner. Petitioner being aggrieved filed civil revision before Peshawar High Court which was dismissed vide order, dated 23-5-1995. Petitioner being aggrieved filed C.P.L.A. No,78 of 1996 which was converted into Civil Appeal No,1738 of 1996 which was dismissed with certain observations vide judgment, dated 27-5- 2002. Petitioner had also filed a suit for specific performance against the respondent on the basis of the agreement executed between the parties on 27-8-1987. Petitioner submitted application before the trial Court under Order VI, rule 17, C.P.C. For amendment in the plaint on 12-7-2002 whereas the respondent had filed an application under Order VII, rule 11 of C.P.C. Read with section 151 on 4-7-2002 for rejection of plaint. The learned trial Court accepted the application of the petitioner for amendment in the plaint in view of judgment of this Court, dated 27-5-2002 with cost of Rs,500 to be paid to the respondents whereas application of the respondents under Order VII, rule 11 was rejected vide consolidated order, dated 16-11-2002. Respondents being aggrieved filed revision petition against the petitioner in Court of Additional District Judge, D.I. Khan which was dismissed vide order, dated 3-3-2003. The respondent being aggrieved filed Constitution Petition No,58 of 2003 in the Peshawar High Court which was accepted vide order, dated 21-4-2004 wherein the case was remanded to the District Judge, D.I. Khan to adjudicate in entirety upon C.R. Filed by the respondents. The learned District Judge after remand accepted the revision petition vide order, dated 15-7-2004. The petitioner being aggrieved filed Constitution Petition No,183 of 2004 in the Peshawar High Court. The learned High Court dismissed the same vide impugned judgment, dated 22-3-2005. Hence, the present petition.

2. Learned counsel for the petitioner submits that the trial Court was justified to accept the application of the petitioner and rejected the application of the respondents in terms of the observations of this Court vide judgment dated 27-5-2002. He further urges that the learned revisional Court as well as the learned High Court erred in law to reverse the order of the trial Court dated 16-11-2002. He further urges that in respect of the property in question the predecessor-in- interest of the respondents Nos.1 to 6 became owner in terms of the judgment of Peshawar High Court, dated 6-3-1985 which was upheld by this Court vide order, dated 16-6-1985. He further submits that both the Courts below erred in law to reject the plaint of the petitioner in violation of the Para meters prescribed by the Legislature in its wisdom under Order VII, rule 11, C.P.C. He further urges that the trial Court was justified to allow the petitioner to amend the plaint in view of Order VI, rule 17, C.P.C. Which was necessary for the purpose of determining the real questions in controversy between the parties whereas the revisional Court erred in law to reverse the order of the trial Court.

In support of his aforesaid contention, he relied upon the following judgments:--

(i) S. Sibtain Fazali v. Star Film Distributors and another PLD 1964 SC 337; (ii) Mst. Ghulam Bibi and others v. Sarsa Khan and others PLD 1985 SC 345; (iii) Abdul Karim v. Fazal Muhammad Shah PLD 1967 SC 411; (iv) Shah Muhammad v. Inayat Ullah and others PLD 1953 Lah.

87.

3. The learned counsel for the respondents submits that petitioner secured observation in the earlier round of litigation by concealing material facts. He further urges that both the Courts below have scrutinized all the record available before them and passed the impugned judgments keeping in view the long-standing litigation between the parties. He further urges that learned trial Court erred in law to dismiss the application of the respondents and accepted the petitioner's application for amendment of the suit whereas revisional Court as well as the learned High Court had reversed the same with cogent reasons. Both the Courts below have given concurrent findings of fact against the petitioner, therefore, petition is liable to be dismissed.

4. We have given our anxious consideration to the contentions of the learned counsel of the parties and perused the record ourselves. It is better and appropriate to reproduce the operative part of the impugned judgment of learned Peshawar High Court to resolve the controversy between the parties:- "From the above, it can be concluded that the respondents Nos.1 to 6 were not the owners of the property at the time of execution of deed in 1987. Only a suit was pending in the Court which, if decided in their favor, would entitle the present petitioner to step into their shoes but the said suit was withdrawn in 1991. Therefore, the possibility of getting the ownership of the land had vanished.

The petitioner's request for his impleadment as a party therein failed upto the level of the Honourable Supreme Court. The said suit was dismissed as withdrawn. Therefore, there was no title or possession of the respondent No,

1. So, the petitioner is merely asking for moon in the void. The persons from whom he intends to derive title were neither the owners thereof at the time of execution nor they are owners today nor even there is any likelihood of their ownership in future. So, the plaintiff was left with no cause of action at all and his misrepresentation in the Honourable Supreme Court that a suit for specific performance of contract was pending was a nullity. There was neither any such suit nor a suit of performance of an impossible contract was permissible under the law."

5. In case the aforesaid operative part be read with judgment of the Peshawar High Court, dated 6- 3-1985 and the order of this Court, dated 16-6-1985 then it appears that the judgment of the learned Peshawar High Court dated 6-3-1985 and order, dated 16-6-1985 were not brought to the notice of the learned High Court wherein it was specifically held that the predecessor-in-interest of the respondent was owner of the property in question by observing that the matter was settled qua the ownership of the predecessor-in-interest of the respondent Noor Muhammad firstly vide order, dated 14-10-1965 passed by the Settlement Commissioner subsequently, notice issued to the predecessor of the respondents on 3-7-1971 which was thereafter discharged. The ownership of the late Noor Muhammad was upheld by the High Court vide judgment dated 11-11-1973. The same error was committed by the revisional Court. It is a settled principle of law that observation of this Court is binding on each and every organ of the State by virtue of Articles 189 and 190 of the Constitution. The observation in the order, dated 27-5-2002 having binding effect even otherwise where the cause of action is disclosed in plaint, plaintiff has a right to have a fair trial of his case, to produce evidence and having a judicial opinion of a Court on merits of his cause. It is also a settled principle of law that plaint can only be rejected when the averments made therein if accepted in mode and form, do not entitle him to a relief . Provisions of Order VII, rule 11, C.P.C. Could be invoked if there was no room for any other possible approach to the case and no triable issue was made out in case or suit was clearly hit by any mandatory provisions of law justifying rejection of plaint.

We have given due consideration to all the judgments previously passed by different fora qua the property in question. B As mentioned above, for the purpose of determination whether plaint discloses a cause of action or not, Court has to presume that every averment made in the plaint is true, therefore, power to reject the plaint under Order VII, rule 11 must be exercised only if the Court comes to the conclusion that even if all the allegations are proved, the plaintiff would not be entitled to any relief whatsoever. Meaning thereby, the power to reject a plaint should not be exercised except in a clear case. None of the grounds mentioned in Order VII, rule 11, C.P.C. Existed to non suit the petitioner/plaintiff as law laid down by this Court in Mst. Karim Bibi and others v. Zubair and others 1993 SCM R 2039. It is an admitted fact that dispute in the present case related to a very valuable property. Contents of plaint also disclosed triable issues, therefore, question whether there was a concluded contract for sale between parties could not have been resolved without proper trial, settlement of proper issues and recording of evidence. We are of the view that trial Court was justified to dismiss the application of the respondent, under Order VII, rule 11, C.P.C. Whereas the revisional Court and learned High Court erred in law to reverse the same without adverting to the real controversy between the parties in view of aforesaid discussion read with contents of agreement dated 27-8-1987.

6. In view of what has been discussed above, this petition is converted into appeal which is allowed to the extent that the order passed by the learned trial Court under. Order VII, rule 11, C.P.C. On 16-11- 2002 is upheld and orders of the revisional Court, dated 15-7-2004 and the learned High Court dated 22-3-2005 are set aside. Controversy qua the amendment of the plaint shall remain open in the interest of justice and fair play and the parties are at liberty to avail appropriate remedy before the trial Court in accordance with law. The learned trial Court shall, of course, after framing the issues and recording the evidence decide the suit without being influenced by the observation of this Court.