PLJ 2023 Quetta 130
Present: Rozi Khan Barrech, J.
MUHAMAMD YAHYA KHAN--Petitioner
versus
AKRAM SHAH and others--Respondents
C.R.P. Nos. 614 & 672 of 2021, decided on 14.6.2022.
Civil Procedure Code, 1908 (V of 1908)--
----O.VII R. 11--Specific Relief Act, (I of 1877), Ss. 12, 39, 42 & 54--Suit for declaration cancellation of partition, transfer of mutation specific performance--Application for rejection of plaint--Allowed-- Appeal--Allowed--case was remanded--Challenge to--Written statements of petitioners are on record, and matter was fixed for evidence, but trial Court, despite involvement of serious disputed questions of facts in matter, has rejected plaint of Respondent Nos. 1 to 9 without assigning any valid reason-- As per observations and directions of this Court, all disputed questions of fact and law were directed to be resolved on merits, but trial Court has not considered this aspect of matter and accepted application under Order VII Rule 11, CPC of petitioners--Petition dismissed. [Pp. 132, 133] A & D
Maxim--
----Ubi jus ibi remedium--The maxim ubi jus ibi remedium (where there is right, there is a remedy) is a fundamental principle of law that any person having right has a corresponding remedy to institute suits in Court of law unless jurisdiction of Court is barred by virtue of provisions of this Section 9 of C.P.C. [P. 132] B
Civil Procedure Code, 1908 (V of 1908)--
----O.VII R. 11--Controversial questions--In case of controversial question of facts or law provisions of Order VII Rule 11, CPC could not be invoked; rather proper course for Court in such cases was to frame issues on such questions and decide same on merits in light of evidence. [P. 133] C
Mr. Muhammad Akram Shah, Advocate for Petitioners (in C.R.P. No. 614 of 2021).
Mr. Mohibullah, Advocate for Respondent Nos. 2-C to 20-F (in C.R.P. No. 614 of 2021).
Mr. Saif-ur-Rehman, Advocate for Respondent Nos. 11 to 17 (in C.R.P. No. 614 of 2021).
Mr. Muhammad Ali Rakhshani, Addl. for Respondent Nos. 18 and 19 (in C.R.P. No. 614 of 2021).
Mr. Jameel Ramzan, Advocate for Petitioner (in C.R.P. No. 672 of 2021).
None present for Respondents (in C.R.P. No. 672 of 2021).
Date of hearing: 27.5.2022.
Judgment
By this single judgment, I proposed to dispose of Civil Revision Petition Nos.614 of 2021 and 672 of 2021 arises out of order dated 22.09.2021 (hereinafter “the impugned Order”) passed by learned Additional District Judge, Kuchlak, (hereinafter “the appellate Court”) whereby the learned appellate Court while accepting the appeal filed by the plaintiff/Respondent Nos.l to 9 setting aside the order dated 26.06.2021 (hereinafter “the Order”) passed by learned Civil Judge, Kuchlak, (hereinafter “the trial Court”) and the case was remanded to the learned Civil Judge for trial.
2. Precisely, the facts necessary for adjudication of the instant petition are that the plaintiff/Respondent Nos. 1 to 9 in both Civil Revision Petitions filed a suit for declaration, cancellation, partition, transfer of mutation, specific performance, injunction and consequential relief before the trial Court against the petitioner asserting therein that the property in dispute bearing Khasra No. 1071, 1201/1132 situated in Mahal Viala Samali Tehsil and District Quetta was purchased by the predecessor-in-interest of plaintiff vide agreement dated 15.01.1995, however, subsequently the said agreement was not acted upon, and the property in question remained in the name of the predecessor of the private defendants.
3. The suit was contested by the petitioner/appellant by means, of filing separate written statements on legal as well as factual grounds. During the pendency of the suit, the petitioner applied for rejection of plaint through an application under Order VII Rule 11, CPC raising the plea that the “so-called agreements have no connection with the property in dispute mentioned in the plaint. On the first instance, specific performance of the agreements cannot be carried out as the agreements are vague and the khasra numbers mentioned above are not included in the agreement; furthermore, the provisions of Section 172 with regard to correction of entries is within the sole jurisdiction of revenue authorities as such the suit are barred under Section 172 of Land Revenue Act, 1967”.
4. The application under Order VII Rule 11, CPC found favour with the learned trial Court, which rejected the plaint vide order dated 26.06.2021. In appeal, the order was set aside, and the case was remanded to the learned trial Court in accordance with the law.
5. Arguments from both sides, pro and contra, have been heard, and relevant record annexed with the revision petition was carefully perused.
6. I have also gone through the contents of the plaint with the able assistance of the learned counsel for the parties and came to the conclusion that in order to reject a plaint, the same must be shown to be barred under some law on the basis of averments made in the plaint; Court at that stage would be neither entitled to look into the pleas raised by the defendant nor could examine the merits of allegations made in the plaint. It is a settled proposition of law that every allegation made in the plaint has to be accepted as correct while rejecting the plaint under Order VII Rule 11, CPC; the fact that the plaintiff might not ultimately succeed in establishing the allegations in the plaint could not be a ground for rejecting the plaint under Order VII Rule 11 CPC.
7. As observed above, in this matter, written statements of the petitioners/defendants are on record, and the matter was fixed for evidence, but the learned trial Court, despite the involvement of serious disputed questions of the facts in the matter, has rejected the plaint of the plaintiff/Respondent Nos. 1 to 9 without assigning any valid reason. During the course of arguments, I have specifically asked the question from the learned counsel for the petitioners to point out any averment of the plaint, which appears to be hit/barred by any law, but he has no satisfactory answer with him; however, he submitted that subject matter of the suit pertains to correction of mutation entries, and in this respect, revenue authorities ought to have been approached. I am not impressed with these arguments, for the reasons that jurisdiction of the Civil Court under Section 9 of CPC is very much clear that Civil Court has the jurisdiction to try any suit which comes within the ambit of Section 9, CPC with respect to any official act by the defendants. The maxim ubi jus ibi remedium (where there is right, there is a remedy) is a fundamental principle of law that any person having the right has a corresponding remedy to institute suits in the Court of law unless the jurisdiction of the Court is barred by virtue of the provisions of this section, Civil Courts are granted general jurisdiction to try all suits of a civil nature in respect of the enforcement of civil rights unless their jurisdiction is either expressly or impliedly barred. The term Jurisdiction refers to the legal authority to administer justice in accordance with the means provided by law and subject to the limitations of Special Tribunals, the Civil Courts being Courts of ultimate jurisdiction, will have the jurisdiction to examine the acts of such forums to see whether their acts are in accordance with law or are illegal or even mala fide.
8. After going through the pleadings of the parties, it appears that there is a title dispute between the parties and serious disputed questions of facts are involved in this matter in respect of ownership of the property in dispute.
9. The genuineness of the alleged agreement required evidence, and without recording of evidence, the dispute between the parties cannot be resolved.
10. In case of the controversial question of facts or law provisions of Order VII Rule 11, CPC could not be invoked; rather proper course for the Court in such cases was to frame issues on such questions and decide the same on merits in the light of the evidence.
11. It is worthwhile to mention here that the matter with regard to the rejection of the plaint was previously raised in the first round of litigation, and the application under Order VII Rule 11, CPC was dismissed on 04.02.2017, whereafter the same was assailed before this Court by the parties in Civil Revision No. 37/2017 and 62/2017, and thus this Court disposed of both the Civil Revisions by common judgment dated 17.12.2018 with the following observations:-
“Perusal of pleadings of the parties and the available record reveals that while rejecting the application under Order VII Rule 11, CPC through a speaking order, the trial Court has not committed any illegality or irregularity warranting interference by this Court in its provisional jurisdiction.
For the above reasons, both the Civil Revision Petitions are dismissed with no order as to cost. The earlier interim order dated 23.02.2017 passed by the Court stands re-called.
The trial Court is directed to proceed with the trial expeditiously. The trial Court is expected to decide the suit on merits in accordance with law at the earliest”.
12. As per observations and directions of this Court, all the disputed questions of fact and law were directed to be resolved on merits, but the learned trial Court has not considered this aspect of the
matter and accepted the application under Order VII Rule 11, CPC of the defendants/petitioners.
In view of the above circumstances, the Impugned order dated 22.09.2021 passed by the learned Additional District Judge, Kuchlak, is not suffering from any illegality and irregularity and is not liable to be interfered with; therefore, the civil revision petitions filed by the petitioners are hereby dismissed, and the impugned order is maintained. Parties to bear their own costs.
(Y.A.) Petition dismissed
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