MUHAMMAD AKHTAR ETC. vs ABDUL HADI ETC.

ORDER

KARAM ELAHEE CHAUHAN, J.---In an earlier round of litigation which ended with order of this Court dated 16- 12-1979, passed in C. P. 401 of 1979 filed by the respondent (tenant) it was held that the present petitioner (landlord) was transferee and owner of the property in dispute and the respondent herein was his tenant.

2. It appears that thereafter tenant/respondent started another round of litigation and held a civil suit challenging the title and ownership of the respondent over again and for a declaration that all the earlier orders passed at various levels including the above-mentioned order of this Court was illegal and having been obtained by fraud etc. Were of no consequence. The suit and his first appeal were rejected but in a second appeal being R.S.A.. 473 of 1980 filed by the tenant/respondent the High Court remanded the case for its decision on merits in the light of the pleadings as contained in the plaint because according to the High Court the plaint could not be rejected under Order VII, rule 11. C. P. C. If the pleadings in the plaint made out a justifiable case and that at that juncture, it was held, a Court is not to attend to the defence or to the documents filed by the defence.

3. The landlord/petitioner has come up in a petition for special lave to appeal to this Court.

4. After hearing the learned counsel for the parties we are ---of the opinion that the view taken by the High Court on the facts and in the peculiar circumstances of this case is not maintainable.

Apart from the fact that Order VII, rule 11, C. P. C. Is not exhaustive of all the situations in which a plaint can be rejected or a suit can be dismissed summarily, even other was in this case the High Court did not notice the order of this Court date 16-12-1979 relevant para. 4 whereof read as follows :- "During the course of the hearing of this petition in the presence of the caveator it transpired that long before the institution of the petition a Permanent Transfer Deed had also issued in favour of the respondent landlords. Its date is 20-6-1974. This order had taken place in con tested litigation between the petitioners and the respondents. Thus it is clear that the title to the property vests in the respondents and that it so vested to the knowledge of the petitioners. We do not therefore consider this a fit case for grant of leave, and dismiss the petition."

It is obvious that after the aforesaid adjudication by this Court, a fresh suit to reagitate the same matter could not have been filed by the respondent which was nothing but an abuse of the process of law. Moreover in sub-section (2) of section 12 of the C. P. C. (1903) it is said down that "where a person challenges the validity, of a judgment, decree or order on the plea of fraud, misrepresentation or want of jurisdiction, he shall seek his remedy by making an application to the Court which passed the final judgment decree or order and not by a separate suit". The aforesaid provision was apparently not brought to the notice of the High Court. The result is that) we convert this petition into an appeal and accepting the same, set aside the order of the High Court and maintain the orders of the Courts below thereto whereby the plaint had been rejected and suit was dismissed in that form. Parties to bear their own costs.