Mst. SHARIFAN BEGUM and others vs MUHAMMAD SHAHBAZ and others

ORDER

' The brief facts out of which the present revision petition arises are that respondents/plaintiffs filed a suit for declaration against the petitioners/ defendants to the effect that he alongwith his other brothers and father is owner of the property bearing Khasra No,192/2/2 measuring 80 Sq. Ft. Vide registered sale-deed No,2399-1, dated 1-9-1993 and also vide decree of Civil Court, dated 11-4-1989.

The contents of the plaint revealed that the property of the petitioners/defendants bearing Khasra No,195/5 situated in Block No,3 Sarafa Bazar is adjacent to the Property bearing Khasra No,192/2/2; the respondents/ petitioners Nos,1 to 3 have purchased the area measuring 1 Marla and 133 sq. Ft.

Vide sale-deed 2213, dated 28-6-1976 but with the connivance of the revenue staff Mutation No,15437, dated 11-8-1979 on the basis of the registered sale-deed was attested for the land measuring 1 Marla and 194 sq. Ft. Instead of the said actual area 1 Marla and 133 sq. Ft. The entries of Khasra numbers are different in the mutation as compared to the registered sale-deed. The defendants/ respondents have purchased property out of Khasra No,195/5 but Khasra No,192/5 was entered instead of Khasra No,195/5. The plaint further revealed that the plaintiffs/respondents moved a review application about Mutation No,15437, dated 11-8-1979 before the Collector who rejected the same with the remarks that he may seek remedy before the Civil Court; hence respondents/plaintiffs filed the civil suit against the petitioners/defendants. The petitioners filed an application under Order 7, Rule 11, C.P.C., that the suit was barred by law and limitation and no cause of action was accrued to the respondents/plaintiffs. The learned Trial Court accepted the application vide its order, dated 7-11-1996 and rejected the plaint on the ground that the respondents/plaintiffs got no cause of action. The respondents/plaintiffs being aggrieved by the order of the trial Court, filed an appeal before the learned District Judge, Sargodha, who entrusted the same to learned Additional District Judge which was accepted vide judgment and decree, dated 8-1-1998 in the following terms:-- "The plaintiff has certainly cause of action as he has danger or apprehension to interfere with the possession of the plaintiff on the basis of the wrong and incorrect entries in the mutation purporting to the title of the defendants. In view of above circumstances, the order of the learned trial Court regarding the rejection of plaint under Order VII, Rule 11, C.P.C, is not sustainable in the eyes of law."

' Hence this revision petition.

2. The learned counsel for the petitioners contended that contents of the plaint did not reveal any cause of action and the learned trial Court after applying its mind accepted the application and rejected the plaint without cogent reasons but the learned 1st Appellate Court did not apply its mind and accepted the appeal merely on conjunctures and surmises,

3. The learned counsel for the respondents contended that the learned 1st Appellate Court reversed the order of trial Court with cogent reasons, after applying its mind; whereas the trial Court decided the application without, application of mind.

4. I have given my anxious consideration to the contention of the learned counsel for the parties and perused the record. In the instant case the present application is for rejection of plaint under Order VII, Rule 11, C.P.C. It is settled principle of law that while considering the question of cause of action for rejection of plaint under Order VII, Rule 11, C.P.C. The Court has to apply its mind to the facts given in the plaint and not to the other matter and it has to be presumed that any allegation made in the plaint was true. Reference may be made to PLD 1976 Kar.

21. In the present case the point i,e, to be determined is whether prima facie the plaintiffs have any legal character which is being denied by the defendants for which they can seek declaration and consequential relief. The legal character as used in section 42 is used in the sense of status. On the attribute of the status that respondents/plaintiffs have danger or apprehension to interfere with the possession of the plaintiffs/respondents on the basis of the written and incorrect entries in the mutation supporting the title of the defendants/petitioners. The apprehension of the respondents/plaintiffs is revealed from the contents of plaint; therefore, the plaintiffs accrued cause of action. Cause of action means "the whole bundle of material facts which it is necessary for the plaintiff to prove in order to entitle him to succeed in the suit and which if not proved would giye the defendants a right to a immediate judgment". Reference can be made to PLD 1965 Lah.

172. Cause of action means the infringement of the right which furnishes occasion for the action, therefore, the contents of plaint revealed cause of action. By insertion of Article 2A of the Constitution the Court has taken into consideration the Injunction of Islam and Injunction of Islam did not allow to knock out the person on technicalities. The Honourable Supreme Court has considered Article 2-A of the Constitution and laid down a principle that right of the parties must be decided on merits instead of technicalities. Reliance is placed on PLD 1989 SC 532. I am of the considered view that the learned 1st Appellate Court reversed the order of Trial Court, after proper appreciation of the contents of the plaint and after applying its mind in accordance with law and dictum laid down by the superior Courts, therefore, 1st Appellate Courts' judgment is upheld.

' In view of what has been discussed above, this revision petition is dismissed with no order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.