MUHAMMAD ARIF Versus ALLAH WASAYA
ABDUL LATIF KHAN, J.--- Through the instant revision petition, the petitioners namely, Muhammad Arif and 2 others have called in question the judgment and decree dated 17.1.2013 passed by the learned Additional District Judge, Paharpur, D.I. Khan vide which the appeal of the respondent was accepted.
2. The facts giving rise to the instant revision petition are that the respondent/plaintiff filed a suit against the petitioners/defendants for declaration, permanent and mandatory injunction in respect of suit property measuring 6 kanals, 17-1/2 marlas fully detailed in the heading of the plaint situated at Mauza Paharpur Chak Puran, Tehsil Paharpur District D.I. Khan to the effect that the respondent/plaintiff is owner, in possession of suit property while the petitioners/defendants have no concern whatsoever with the same. The mutation No.952 attested on 18.8.2001 in favour of the petitioners/defendants is illegal, against law and facts and ineffective upon the rights of the respondent/plaintiff. The petitioners/defendants contested the suit and submitted an application under Order VII, rule 11, C.P.C. for the rejection of plaint. The learned trial court after hearing arguments of the learned counsel for the parties, rejected the plaint vide judgment and decree dated 13.09.2012. The respondent/plaintiff aggrieved from the said order, preferred an appeal before the appellate court, which was accepted on 17.1.2013 and remanded the case to the trial court, hence the instant revision petition.
3. The learned counsel appearing on behalf of the petitioners contended that the appellate court has wrongly remanded the case to the trial court with direction to decide the matter in accordance with law, because the contents of plaint does not disclose any cause of action and that that the suit is hopelessly time barred. For the reason that the mutation No.952 was attested on 18.8.2001 and the instant suit was filed by the respondent/plaintiff on 24.3.2002. He contended that no issue of fraud and collusion has been raised by the respondent/plaintiff. He contended that further transaction made on behalf of the original mutation in favour of the others has not been challenged nor the beneficiaries of those mutations are made as party to the suit. He contended that the trial court has rightly rejected the plaint.
4. As against that, the learned counsel for the respondent/plaintiff contended that the trial court has wrongly rejected the plaint for the reason that the petitioners/defendants have not yet filed written statement. He argued that the disputed mutation was not in the knowledge of respondent and had acquired the knowledge some two months prior to the institution of the suit. He contended that the law requires adjudication on merits, not on technicalities and the matter in dispute requires pro and contra evidence and supported the judgment of the trial court, whereby the matter has been remanded to the trial court for decision on merits.
5. I have given my deep thought to the arguments of learned counsel for the parties and perused the available record with their assistance.
6. The perusal of record shows that the suit filed by the respondent/plaintiff for declaration to the effect that he is owner of the property mentioned in the heading of the plaint and mutation No.952 attested on 18.8.2001 was wrongly attested, which is against law and facts and ineffective upon the rights of the respondent/plaintiff and as such is liable to be cancelled. Serious allegations have been made in the plaint apart from the knowledge as mentioned in Para 5 that two months before the institution of suit, the respondent/plaintiff came to know about the illegal and wrong mutation and challenged the same through the instant suit within limitation, counting the same from the knowledge of the respondent/plaintiff. It is pertinent to mention that these allegations were rebutted by the petitioners/defendants by filing written statement, which was the requirement of law rather opted to file an application under Order VII, rule 11, C.P.C. and the trial court on acceptance the application, rejected the plaint of the respondent/plaintiff, which is not warranted by law for the simple reason that the contents of plaint have to be taken on its face value and the serious allegations made in the plaint were not rebutted, cannot be ignored altogether and that too without pro and contra evidence. The application of provision of Order VII, rule 11, C.P.C. is not be attracted in cases where the factual controversy is involved. Though apparently the suit has been filed with the delay but the contents of Para 5 of plaint reveals the knowledge of respondent/plaintiff, two months prior to the institution of suit, so there exists two version and without recording evidence proper appreciation cannot be made. Even otherwise, question of limitation being mixed question of law and fact and can be properly adhered to after for and against evidence.
7. Order VII, rule 11, C.P.C. is reproduced for ready reference:-
"
11. Rejection of plaint---The plaint shall be rejected in the following cases:-
(a) where it does not disclose a cause of action;
(b) where the relief claimed is under valued, and the plaintiff, on being required by the court to correct the valuation within a time to be fixed by the court fails to do so;
(c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the court to supply the requisite stamp-paper within a time to be fixed by the court, fails to do so;
(d) where the suit appears from the statement in the plaint to be barred by any law.".
8. It is by now established that in the light of referred provision plaint can only be rejected on the grounds mentioned therein and not otherwise. The disclosure of cause of action cannot be easily and readily accepted in cases where serious allegations are made and without recording evidence, the same cannot be acceded to by choosing easy path to get rid of the lis rather it is obligatory upon the court to ask for the defence and after affording opportunity of producing pro and contra evidence, the matter shall be decided and not to reject the plaint at outset without adhering to the legal provision applicable to the case. The same is the case with other conditions including the bar which is to be ascertained from the statement of plaint and if specific version is averred in the plaint, as in the instant case in Para 5 contains the allegations regarding the knowledge, two months prior to institution of suit, the same cannot be overlooked without being properly adjudged after asking for the defence and provision thereof through normal course provided for civil cases.
9. So far as non-impleadment of the beneficiaries subsequent mutations are concerned, the same cannot be taken as a ground for rejection of plaint as has been rightly observed by the learned appellate court. Order I, rule 9, C.P.C. provides that no suit shall be defeated by reason of the misjoinder and non-joinder of the parties and the same can be met with under rule 10 of Order I, C.P.C., which empowers the court to remedy as such defect. Order I, rule 9, C.P.C. is reproduced for ready reference.
"9. Misjoinder and non-joinder:---No suit shall be defeated by reason of the misjoinder or non joinder of parties, and the court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it" .
10. Order I, rule 10(2), C.P.C. empowers the court to add or strike down any party ought to have been joined or improperly joined and at any stage of the proceedings. Order I, rule 10(2), C.P.C. is reproduced for ready reference.
" 10(2). Court may strike out or add parties---(2) The court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely, to adjudicate upon and settle all the questions involved in the suit, be added".
11. The appellate court has on acceptance of appeal remanded the case to the trial court for decision in accordance with law and rightly done so, as the provision of Order VII, rule 11, C.P.C. are not attracted nor the lis can be hit under Order I, rule 9, C.P.C. and provision of Order I, rule 10(2), C.P.C. are there for redress, and warrants no interference, which is hereby upheld.
12. For the reasons mentioned above, the instant revision petition being bereft of any merit is hereby dismissed; leaving the parties to bear their own costs.
ZC/493/P Revision dismissed.