Mian MUHAMMAD AKRAM And Others vs MUHAMMAD RAFI

This Writ Petition assails an order dated the 5th of March, 1988, of the learned District Judge, Sargodha, whereby, in revision, he rejected the plaint of the petitioners under Order VII, rule 11, C.P.C., holding that the suit was barred firstly by the provisions of the Displaced Persons (Compensation & Rehabilitation) Act, 1958, and secondly by limitation. Earlier, the trial Court had rejected the respondent-defendant's application under Order VII, rule il, C.P.C., observing that the objections to the maintainability of the suit required evidence as might be assessed in due course if these were taken up formally in the written statement. In its view the separate application was not called for.

2. It may be pertinent to see what the suit itself was. In brief, a big Mandi consisting of a number of houses/shops shown in site plan (Exh. E) dated the 17th of October, 1961, belonging to evacuees was transferred to the writ petitioners' etc. On the 11th of November, 1961, while the portion in dispute, allegedly one of the two main gates, was indicated therein as shop No.28. The petitioners assertion was that the Deputy Settlement Commissioner declared it to be the main gate rather than a shop and directed that it may be got vacated from possession of the mother of the respondent Mohammad Rafi. They added that though no Form for its transfer had till then been filed by the respondent, yet he subsequently got N.C.H. Form No. 370 filed on the 15th November, 1961, and sixteen years later obtained its transfer by virtue of order dated the 8th of February, 1977. They assailed it on the ground of fraud and misrepresentation emphasizing, in particular, that for sixteen long years after filing the Form, the respondent kept silent, and further that once the site was held to be the main gate, it could not have been subsequently much less, after the repeal of laws shown to be shop.

3.As already remarked, the trial Court refused to accept the application whereas the District Judge allowed the same.

4.There was a serious objection to the maintainability of the writ itself. Inasmuch as it was purporting to call in question what had been finally decided in a revision petition by the learned District Judge. The objection seemed formidable, for, it was ruled in Ghulam Hussain and another v.

Malik Shahbaz Khan and another (1985 SCMR 1925) that any matter finally decided in revision petition could not be challenged in writ petition. In Muhammad Zahoor and another v. Lal Muhammad and 2 others (1988 SCMR 322), it was reiterated that this rule could not be watered down except, of course, where the decision was either void or coram non judice. Looking at the impugned order from this angle, one does not find if it really was void or even coram non judice.

Rejection of plaint was within the competence of the trial Court as per Order VII, rule 11, C.P.C.,1 while in Revision the High Court may pass under section 115 (1), C . p . C . , such orders as it may deem fit including those of rejection of plaint. Thus, powers of the trial Court and those of the revisional Court are co-extensive. Section 115 (2) , C . P . C . , authorises the District Court to exercise those powers and, indeed, it did exercise the same in this case. It is difficult to hold that it was acting coram non judice. Nor was it really established if the impugned order was void. Reliance was basically placed on the contents of the plaint to conclude that the suit was hit by sections 22 and 25 of the Displaced Persons (Compensation & Rehabilitation) Act, 1958, as also limitation. Taking a subjective view of those contents was not necessarily something void. It involved formulation of opinion based upon the contents of the plaint and the mere fact that such opinion was erroneous or was susceptible to give way to the opposite view, would not necessarily make it "void".

5. A perusal of the plaint did show that the respondent had filed N . C . S . Form No.370, dated the 15th of November, 1961, for transfer of shop No.28 which again on the showing of the petitioners in para. II of the plaint, was set up by converting the main gate soon after partition. It transpires that he kept on occupying it continuously and that is why on the basis of such a long possession he finally got it transferred on the 8th of February, 1977. The main objection against the said order was that it was obtained sixteen years after the filing of the Form and that too when the evacuee laws stood repealed. Para. III of the plaint avers that the form remained unattended for sixteen long years with the Settlement Authorities. This narration itself pre-supposed that it had been actually filed as early as the 15th of November, 1961. It is apparent that failure on the part of the Department to attend to the respondent's Form for such a long period could not have any adverse effect against his interest and it was still open to him to draw their attention towards its impending disposal. Counsel for the petitioners submitted that leaving the Form undisposed of did not constitute a "pending proceeding" contemplated by section 2 (2) of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975. He however, did not cite any authority supporting his view point. Filing of the Form was itself a proceeding inasmuch as it was intended to make a claim for transfer of a particular property. Its disposal was the obligation of the respondent-Department and if they could not do it at proper time, they could do it even after the repeal as a pending matter Legally there may be no objection in disposing of the same as a pending claim. The corollary would be that the order so passed by the Notified Officer could not be challenged before a Civil Court The learned District Judge took note, among other things, of this fact to conclude that the order was immune from the plenary jurisdiction of the trial Court. It will be realized that this view did not offend against any provision of law: rather it was conformable to the intent of subsections

(3) and (4) of section 2 of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, which made any order passed by a Notified Officer to be virtually final for all purposes. It is true that one way could have been to invoke Order VII, rule 11,1 C . P . C . , in the written statement but there is no embargo upon bringing it through a miscellaneous application. The learned District Judgel was amply justified to entertain it and his order does not suffer from any legal flaw.

6. The plaint affirms that the so-called main gate was converted, into a shop bearing No.28 soon after Partition. The order dated the 8th of February, 1977, of the Notified Officer was primarily based upon the consideration that the shop was being used as such for the last thirty years. He discussed in detail the implications of the order dated the 11th of November, 1961, wherein this site was left out undisposed of on an impression that the occupant Mohammad Shafi, who had died by the time, had not filed any Form. The order dated the 8th of February, 1977, atates that the policy was to allot property in accordance with use it was put to at the time of Partition. Since the petitioners' own case in the plaint was that the deceased Mohammad Shafi and, after his demise, his son Mohammad Rafi had been all along using the site as shop eversince the Partition, its disposal as such a shop could not be possibly objected to. They allowed its user for a long period of thirty years and did not challenge it. The order dated the 11th of November, 1961, appeared to have been passed in the absence of the respondent who immediately filed a Form after obtaining condonation of delay and the same was obviously left unattended. The order dated the 8th of February, 1977, was challenged by the present suit filed on the 27th of October, 1986, that is after the lapse of ten years.

Article 14 of the Limitation Act was manifestly attracted and the limitation started from the date thereof. The contention that Article 95 applied starting limitation from the date of knowledge of the alleged fraud was misplaced, in that it related only to a decree (evidently of a Civil Court), It did not cover an order passed by a Rehabilitation Officer which conversely was more appropriately dealt with by Article 14 prescribing a period of one near for its impeachment. In para. VI of the plaint fraud was not asserted in relation to the said order and the only plea taken was that pendency of sixteen long years of the Form amounted to waiver. No authority was cited in support of the argument that pendency of a matter would really constitute waiver. Inaction on the part of an official agency is generally not allowed to create an adverse effect against a party who by having asserted his claim in time could not he denied the same because he failed to get a decision thereon in time. The learned District Judge was not much wrong in holding that the suit was barred by limitation though he failed to mention a particular Article.

7. Section 92, C . P . C . , was also employed to dismiss the suit observing that the number of people asserting a right of passage over the site could come in a snit after obtaining the consent of the Advocate-General. It was thought that obstruction of the passage created a public nuisance.

Counsel was right in urging that each of the petitioners-plaintiffs had an independent right to get the nuisance cleared and, therefore, the suit brought in '.Heir own individual right was quite competent. I agree with his view on the point but rejection of the plaint on oft=.e;= grounds did not appear exceptionable.

8.Lastly, it was emphasized that to invoke Order VII, rule 11, C.P.C., the Court had to confine itself to the contents of the plaint, and could not rely upon extraneous matters. The concept has undergone a change, in that even material produced in defence could also be kept in mind for rejecting a print. The dictum of the case! Re:Muhammad Akhtar etc, v. Abdul Hadi etc. (1981 SCMR 878) was a clear authority to support it.

9.There is no substance in the writ petition and the same is dismissed leaving the parties to bear their own costs.