AHMAD ZAMAN KHAN, BARRISTER vs GOVERNMENT OF PUNJAB through Collector, Multan and 2 others

' Ahmad Zaman Khan, Bar-at-Law brought a civil action against the Province of Punjab, the District 'Collector, Multan and the Tehsildar, City Multan, for a mandatory injunction, with a prayer that the defendants be directed to correct the Revenue Record, so as to show the plaintiff as the exclusive owner of the land in dispute. Pleading that he had undergone lot of mental agony and financial loss, the plaintiff also laid a claim to five lac rupees as damages.

2. Defence of defendants Nos,1 and 2 was struck off, on account of their persistent failure in submitting the written statement. Defendant No,3 however filed his written statement; but the petitioner as plaintiff in the suit made a prayer that his name be deitted and the suit be decreed ex parte against the remaining defendants. The prayer was turned down by the learned Senior Civil Judge, Multan, vide order dated 30-3-1992, validity of which order has been assailed by the plaintiff-petitioner by way of the present revision petition.

3. The petitioner maintains that it is the option of the plaintiff to keep a person, a corporate body or an organization, in the array of the defendants, or to ask for deletion of the same, and the Court cannot stand in his way and the plaintiff has no compulsion in that regard, as it is he who controls the litigation, which he has set in motion.

4. I am afraid, the contention put forth by the plaintiff is not wholly correct. It is the Court which is seized of a cause that will control the litigation and dispose it of in accordance with law. The plaintiff cannot be permitted to hoodwink the process of law or abuse process of the Court for furtherance of his vested interests. The Court has to see to it if the lis lies, and if at all it has a sound basis and the plaintiff has established it on the strength of his evidence, and as to who amongst the defendants has to bear the brunt and be regarded as the judgment-debtor. Grant of injunction is a discretionary relief and even on equitable considerations the Court may not find itself inclined to exercise this discretion in favour of the plaintiff.

5. Defendant No,1 in the suit is the Province of Punjab; and as such the defendants who are actually sought to be injuncted are the District Collector, Multan and the Tehsildar, Multan. The entries in question, which have given cause of grouse to the plaintiff-petitioner, might have been made by the revenue officials at the lowest level, but the same must have been authenticated by the Tehsildar or the Assistant Collector. The District Collector, who acts in supervisory capacity, would also figure very much in the picture, if errors in the entries occurring in the Revenue Record are sought to be corrected by the aggrieved person. Tehsildar, City Multan was initially made a party to the suit (as defendant No,3); and the petitioner has no explanation to offer as to how he becomes unnecessary party afterwards. In para. No,4 of the plaint it is averred that defendant No,3 was responsible for preparing a wrong record and the District Collector (defendant No,2) was under a legal obligation to set it right. The plaintiff-petitioner claims to be absolute owner of the land in suit, but names of certain other persons as co-owners have been inserted in Revenue Record. So obviously, then, unless those persons are heard, no direction can be given to the defendants by the Civil Court to proceed in accordance with the plea and the desire of the plaintiff and strike off the names of all otheRs, They were certainly necessary parties to the suit. In passing an order to the contrary, on 15-6-1992, the learned Civil Judge, Multan, who then was seized of the case had fallen in error, and taking notice of the error suo motu; I would, in exercise of my revisional jurisdiction, direct the plaintiff-petitioner to pursue his cause, if he so wishes, by impleading all such persons as co-defendants.

6. Actually in the garb of a mandatory injunction the plaintiff was seeking to have him declared as exclusive and absolute owner of the land; and it should have been a suit for a declaration and injunction, and not for merely an injunction, and that too in mandatory form. How can the persons recorded as co-owners be deleted, as per plaintiff's request, unless it is first determined and declared that he is the owner, to the exclusion of every one else. The device adopted by the plaintiff to achieve his object must be regarded as surreptitious as also crafty, and a Court of law has to see to it if the same is permissible. Even it there is no contest put in by the persons or parties arrayed as defendants, it has essentially to be adjudged if the plaintiff's cause has any legal basis and if the prayer made can lawfully be granted. What is to be seen therefore is if an effective decree can be passed in the terms prayed for and only against the persons or the parties arrayed as defendants. If defendant No,3 is deleted and if the co-owners, at the same time, are not impleaded as codefendants, the plaintiff cannot succeed in his cause, even if he has a genuine grievance and a justifiable basis for his claim.

7. I find on record an application for review of the order dated 16-10-1991, made by the defendants Nos,1 and 2 on 15-6-1992. It is not known if the same has been disposed of, or is still pending. It appears, it has yet to be adverted to by the trial Court. Same seems to be the position of yet another application made for amendment of the written statement on 14-5-1992. The plaintiff has jumbled his prayer for mandatory injunction, for being recorded as the only owner of the land, with his claim to an enormous amount of damages, which the Province of Punjab will be liable to pay, in the event of the suit being decreed, a ad the defendants therefore have to be enabled to contest this claim of the plaintiff, having suffered to the tune of lacs, monetarily and mentally. Interests of justice warrant that even if defendants Nos,1 and 2 were at fault for slackness in the matter, they be permitted to participate in the proceedings. This Court has always insisted on decision of cases on merits rather than on technicalities. I would, therefore, direct that the defendants who now wish to contest the case and have made a prayer in all seriousness in that behalf' be allowed to do so by being permitted to file their written statements. The order striking off their defence is annulled; but the plaintiff will be compensated, for the default on the part of defendants Nos,1 and 2, who shall pay Rs,3,000 as costs.

8. The impugned order passed by the learned Senior Civil Judge, Mr. Allah Bakhsh Ranjha, on 30-3- 1992, in declining to delete the name of the Tehsildar from the array of the defendants does not suffer from any legal infirmity and does not call for interference by this Court.

9. The civil revision has no merit and is hereby dismissed. A copy of this order shall be conveyed to the trial Court. An effort shall be made to expedite disposal of the case, that has been pending since January, 1991. Next date in the Court below will be 28-2-1993.