ABDUR RAUF SHAH Versus ABDUL QAIYUM SHAH

HAIDER ALI KHAN, J.--- The petitioner invoked constitutional jurisdiction of this court praying that:

"It is humbly prayed that the impugned judgment and decree of Additional District Judge-I, Lakki Marwat in C.R. No.17 of 2012 dated 23.10.2012 may kindly be declared as against the principles of justice and be set aside by restoring the order of trial court dated 06.06.2012 and other efficacious remedy which this honourable Court deems fit in the circumstances of case, be granted."

2. In essence grievance of petitioner is that he instituted as suit for declaration and permanent injunction regarding market situated in Sarai Naurang, fully detailed in the plaint, is joint ownership of the parties, wherein petitioner has constructed 150 shops. The electricity meters and income tax papers are also in the name of petitioner. On 10.03.2010 an agreement was reached between the parties with the intervention of the elders and petitioner was held as owner of one half of the suit market, whereby respondent was directed to pay Rs.75,00,000/- to petitioner up to 10.09.2010, failing with petitioner shall not deliver the possession of the suit market, but said amount has not been paid. Respondent was requested time and again to transfer one half of the suit market in the name of petitioner and not to interfere in possession of petitioner or harass the tenants.

3. The suit was resisted by the respondent by submitting written statement, wherein he raised various legal and factual objections. In reply to Para No.4, he denied any arbitration between the parties. Respondent moved an application for rejection of suit under Order VII, Rule 11 of the Code of Civil Procedure, 1908. The application was contested by submitting replication. The learned trial court after hearing arguments of learned counsel for the parties dismissed the application vide order dated 06.06.2012. Feeling aggrieved, the respondent preferred revision petition before the learned Additional District Judge-I, Lakki Marwat, who after hearing arguments of both sides, accepted the petition and thereby rejected the plaint under Order VII, Rule 11 the Code of Civil Procedure, 1908 vide impugned order dated 23.10.2012, hence, the instant writ petition.

4. Arguments heard and record perused.

5. It has been keenly observed that there was no binding arbitration agreement between the parties, who are real brothers inter se regarding suit property. Even the informal arbitration referred to in Para No.4 of the plaint by petitioner has very clearly been denied by the respondent/ defendant in his written statement, while replying to Para No. 4 of the plaint stated that:

6. The purported arbitration referred to by petitioner/plaintiff and the courts below are in fact private agreements negotiated by well wishers of both parties. From which both the parties resiled and refused to admit, therefore, present suit was brought by plaintiff/ petitioner against respondent/defendant.

7. The learned revisional court fell in error of law and facts by accepting application for summary rejection of the suit under Order VII, Rule 11 of the Code of Civil Procedure, 1908, as a result whereof plaint of petitioner was rejected. Reliance is placed on case titled "Nazar Hussain and 4 others v. Fazal Ellahi and 5 others" (2007 CLC 1018 Lahore) and "Trading Corporation of Pakistan (Pvt.) Limited v. Messrs Nidera Handelscompagnie B.V Meent 94, P.O Box 676, 3000 AR Rotterdam the Netherlands and another" (2007 CLC 462 Karachi), wherein it is held that:

"From the above discussion, it is clear that since the plaintiff has challenged the contract as a whole the bar contained in section 32 of the said Act will not come in its way and the suit for the relief that no binding contract was concluded between the parties, is maintainable."

8. Therefore rejection of plaint by invoking provision of Order VII, Rule 11 of the Code of Civil Procedure, 1908 is without lawful authority and has no legal effect, resultantly, this writ petition is allowed, impugned order dated 23.10.2012 of learned revisional Court is set aside and learned trial Court is directed to proceed with the case strictly on merits and in accordance with law by giving opportunity to both the parties to adduce evidence in line with their plaint and written statement already submitted without any further delay. No order as to costs.

ZC/204/P Petition allowed.