KHAIRAT MASIH through L.Rs. vs AZIZ SADIQ-7

ORDER

' This revision petition assails judgment/order dated 27-9-2003 passed by the learned Additional District Judge, Lahore, accepting appeal of the respondent and remanding the case to the trial Court with a direction to frame all the necessary issues, to record evidence on merits to hear the parties and to decide the case afresh.

2. Precisely, relevant facts are that the respondent entered into a tie of marriage with Mst. Barkat Bibi, mother of Khairat Masih deceased, predecessor of the petitioners, in the year, 1963. The said predecessor of the petitioners' at that time, was a child of 4/5 years old, was born from earlier husband of Mst. Barkat Bibi and respondent was his step-father. According to the respondent, he brought up Khairat Masih deceased, like his own child, during this brought up, he occupied a plot in Kachi Abadi, Shah Jamal, Lahore, in the year 1966. Government of the Punjab, in the year 1979-80 decided to provide alternative accommodation to the inhabitants of Kachi. Abadi, Shah Jamal, Lahore, in LDA quarters, Township Scheme and price of a quarter was fixed at Rs.17,500, out of which, an amount of Rs.7,000 was subscribed by the Government of Punjab and the balance amount was to be paid through loan of House Building Finance Corporation, arranged by Lahore Development Authority, payable by the allottee through instalments. In this manner, the respondent claimed ownership of quarter No.171-A, Township Scheme, Lahore, whereafter he claimed to have transferred it, out of love and affection with predecessor of the petitioners, in his name. The respondent claimed that transfer in favour of Kairat Masih was Benami and real owner is the respondent.

3. The petitioner's predecessor being a defendant in the suit contested it by asserting that the respondent has no cause of action to file the suit, besides the objection of maintainability of the suit on account of earlier withdrawal of a similar suit vide order dated 9-1-2002 wherein, no permission was granted for filing fresh suit. The petitioners' predecessor on merits, claimed that he purchased this quarter out of his own labour and efforts. This suit of the respondent was also claimed to be barred by limitation. C.P.C. Was filed by the deceased defendant that plaint is liable to be rejected as the suit is barred by limitation, as well, under the principle of res judicata. This application was contested by the respondent and the leaned trial Judge who was seized of the matter, accepted the application of the petitioner and rejected the plaint of the respondent under Order VII, rule 11, C.P.C. Vide his judgment/order dated 20-11-2002.

5. The respondent aggrieved of the decision of the trial Court dated 20-11-2002 filed an appeal before the Additional District Judge and succeeded in having the said decision annulled, as his appeal was accepted and the case was remanded vide judgment/order dated 27-9-2003, as noted above. It appears that Khairat Maish, died in the meanwhile and petitioners who are his heirs/legal representatives have now filed this revision petition, challenging the appellate judgment/order, remanding the case to trial Court, as noted above.

6. Learned counsel for the petitioners submits that suit of the respondent was barred by limitation, as well as, under the principle of res judicata and Order II, rule 2, C.P.C., as such, plaint was rightly rejected by the learned trial Judge but on appeal, a well reasoned judgment, has erroneously been reversed by the Appellate Court. He further submits that no fruitful purpose' will be served on account of remand of the case which cannot succeed on merits, as well, because the petitioners predecessor was not a Benamidar.

7. I have anxiously considered the arguments of the learned counsel for the petitioners and have examined the record appended herewith. Appellate Court has taken the view that both the grounds urged in support of rejection of plaint i.e. Limitation and res judicata cannot be decided without recording of evidence. Undeniably, limitation is a mixed question of law and facts and cannot be determined without recording of evidence. Under law, limitation for filing of a declaratory suit, the like one in hand, starts from the date of denial of title of the plaintiff, which in the instant case was pleaded to be in the year, 1999. From this time, suit which was filed on 28-10- 2001, appears to be within limitation. Be that, as it may, if the petitioner can show at the trial, by evidence that from the very beginning their title had been hostile, obviously, thereafter the suit can be held to be barred by limitation. The proposition that plaint cannot be rejected on the ground that it is barred by limitation, it being a mixed question of law and facts, is settled by this time. My this view gets support from the judgments in the cases of Tariq Mehmood v. Najam-ud-Din (1999 SCM R 2396) and Abdur Rahim v. Karachi Development Authority (1988 CLC 1207).

8. Coming to the other ground on which the plaint was rejected by the learned trial Judge that the suit is hit under the principle of res judicata, as the respondent earlier filed a suit for permanent injunction and withdrew it on 18-7-2001 without permission to file fresh suit, on the basis of same cause of action, second suit is barred. Since earlier suit was withdrawn and was not decided on merits, principles of res judicata are not applicable. A reference can be made in the case of Punjab Board of Revenue, Employees Cooperative Housing Society, Limited v. Additional District Judge, Lahore (2003 SCM R 1284). The petitioner urged bar contained in Order XXIII, Rule 1(3), C.P.C. Or under Order II, rule 2, C.P.C. Earlier suit was simplicitor for permanent injunction, on the basis of his ownership whereas this suit has been filed for declaration, challenging ownership of the petitioners as Benamidars. A suit which has not seen adjudication and decision on merits of the case, can in no manner, create bar, envisaged by Order H, rule 2, C.P.C. Hence, bar contained in both these provisions of law, referred to above, are not applicable. Both the grounds on which the plaint was rejected by the trial Court could only be determined by recording of evidence and has so been held by the Hon'ble. Supreme Court of Pakistan. All the above findings are tentative in nature but plaint, in this case, does disclose a cause of action and prima facie, was not barred by any law hence, plaint, therein, could not have been rejected. The order of remand, subject of attack in this revision petition, has caused no prejudice to the petitioners as both these grounds, have been put to issues and after recording of evidence of the parties, shall be decided by the trial Court, on merits.

9. Learned counsel for the petitioner complains that determination of suit on merits will delay the decision and since controversy between the parties can be resolved on the basis of the above discussed to legal points, those may be ordered to be treated as preliminary. Provisions of Order XIV, rule 2, C.P.C. Are clear on the subject whereunder the petitioners, after framing of entire issues, as directed by the Appellate Court, can move an application to trial Court, for treating issues of law, as preliminary and to decide those before proceeding with the merits of the case. These provisions are mandatory in nature and can in no manner be ignored by the trial Court.

10. For what has been discussed above, I am of the considered view that the Appellate Court has taken a rightful decision and has correctly remanded the case for decision, as observed by it. No illegality or irregularity has been committed by the Appellate Court,, in absence of which no interference is called for in the revisional jurisdiction of this Court. This revision petition has no merit in it and is, accordingly, dismissed IF. In limine with no order as to costs.