2013 C L C 940
[Balochistan]
Before Ghulam Mustafa Mengal and Jamal Khan Mandokhail, JJ
HABIBULLAH KHAN ----Petitioner
Versus
MANAGING EDITOR AND RESIDENT DIRECTOR DAILY JANG and 2 others ----
Respondents
Constitutional Petition No.554 of 2010, decided on 17th December, 2012.
Civil Procedure Code (V of 1908) ---
----O. V11, R. 11 ---Specific Relief Act (I of 1877) S.9 ---Constitution of Pakistan, Art.199 ---
Constitutional petition ---Rejection of plaint ---Scope ---Suit for restoration of possession ---
Plaintiff was a contractor for the defendant working on the site of the suit property when the
work ceased due to financial difficulties of the defendant and after a prolonged period, the
defendant forcibly took possession of the property ---Plaintiff subsequently filed suit for
restoration of possession ---Trial court framed issue s, thereafter, rejected the plaint on ground
that under the agreement between the parties, the possession was to be restored to the owner ---
Validity ---Trial Court acted in a hasty manner as after framing of issues no evidence had been
adduced by any party ---Agreement between the parties was relied upon by the Trial Court
however, the same was not brought on record through evidence ---Proper course for the Trial
Court, in case of controversial questions of facts or law was to decide the case on merits in th e
light of evidence and departure from same would amount to depriving a person from his
legitimate right ---High Court declared impugned order to be illegal and remanded the case to
Trial Court for decision on merits Constitutional petition was allowed acco rdingly.
Petitioner in person.
Mehta W.N. Kohli for Respondents.
Date of hearing: 14th November, 2012.
JUDGMENT
GHULAM MUSTAFA MENGAL, J. --- This petition is directed against the judgment
and decree dated 29th August, 2009 passed by the lear ned Civil Judge, Quetta in Civil Suit
No.37 of 2008, as well as the order dated 20th May, 2010 passed by the learned Additional
District Judge -IV, Quetta in Civil Revision Petition No.32 of 2009, whereby the suit filed by the
petitioner was dismissed.
2. Facts of the case are that the respondent No.1 invited tenders for construction of a
building at Samungli Road, Quetta and being qualified the petitioner was awarded the contract
vide agreement dated 19th October, 1987 and accordingly the possession of th e site was
delivered to him on 24th September, 1988. Pursuant to the contract, petitioner had completed
80% work till 2nd September, 1992 and in the meanwhile the respondent No.1 got stopped the
work on account of non - availability of funds. It was stated that from the beginning of the work
i.e. 24th September, 1988 the petitioner had kept a watchman at the site to look after the two
trucks, machinery and other equipments, which were dumped on there. It was stated that the
petitioner had submitted running B ills Nos.17, 18, 19 dated 26th December, 1993, Bills Nos.18
and 19 regarding payment of outstanding amount. It has been stated that in between the night of
23rd/24th of February, 2008, respondents Nos.2 and 3 along with 4/5 guards came at the site and
on the dint of force removed the two watchmen deputed by the petitioner. On 24th February,
2008 the petitioner reported the matter in Police Station Saddar, Quetta. On refusal to entertain
the same, the petitioner vide application dated 26th February, 2008 ap proached the P.S. Bijli
Road, Quetta. Lastly, the petitioner instituted a suit for restoration of the possession to him.
3. After registration of the suit notices were issued to the respondents and on 24th May,
2008 the respondents Nos.2 and 3 filed thei r joint written statement and case was fixed for
arguments on legal objections. After hearing the learned counsel for the parties, the learned trial
Court accepted the application under Order I. Rule 10, C.P.C. filed by the respondents Nos.1 and
2 and stro ked the name of defendant No.1 vide order dated 30th June, 2008.
4. Out of pleadings of the parties the learned trial Court on 23rd July, 2008 framed the
following issues; ---
(1) Whether the suit of plaintiff is not maintainable in view of preliminaril y legal objections
'A, B, C and D' raised by defendants No.2 and 3 in their written statement?
(2) Whether the plaintiff is entitled for restoration of possession of building with goods,
machinery etc. lying stored in the building as before?
(3) Whethe r the plaintiff is entitled for relief claimed for?
(4) Relief?
5. Thereafter, the case was fixed for arguments on legal issues and after hearing the learned
counsel for the parties, the learned trial Court rejected the plaint of the petitioner vide or der dated
29th August, 2009.
6. The petitioner feeling himself aggrieved of the above said order filed an appeal before the
District Judge, Quetta, who transferred the appeal to the file of learned Additional District Judge -
IV, Quetta, who after hearing the learned counsel for the parties, dismissed the same vide order
dated 20th May, 2010, hence this Constitutional Petition.
7. The petitioner filed his written arguments. Mr. W.N. Kohli, learned counsel for the
respondents defended the impugned orders p assed by the Courts below and argued that the
learned trial Court has rightly rejected the plaint of the petitioner as no case was made out
against the respondent and upheld by the appellate Court. Both the orders of the Courts below
suffer no illegality, as such, no interference is required in the concurrent findings of the Courts
below.
8. We have perused the written arguments filed by the petitioner and heard the learned
counsel for the respondents as well as perused the record of the case.
9. Perusa l of the record shows that the learned trial Court has passed the impugned order in
a very hasty manner, as after framing of issues no evidence had been adduced by either party. It
is settled principle of law that cases should be decided on merits and in a ccordance with the law
after recording pro and contra evidence of the parties and technicality should be avoided. In the
instant case the petitioner claimed that he was in possession of the disputed building and he has
completed 80% work of the building ti ll 2nd September, 1992 and work was stopped by the
respondents on account of non -availability of funds and during the night of 23rd and 24th
February, 2008 the respondents Nos.2 and 3 along with 4/5 armed private guards came at the site
and forcibly dispos sessed the petitioner and in this regard he registered report to police. Along
with the plaint the petitioner has annexed bulk of documents. It was the case of respondents that
the contract was superseded by another agreement dated 5th January, 1994 betwee n the parties,
whereby the entire matter was settled and petitioner was paid Rs.72, 45,978.67. In pursuance of
clause 11 of the said agreement, the contractor handed over the possession of site to the owner of
the plot. Both the Courts below have relied on the said agreement, but the same was not brought
on record through evidence. We are of the opinion that in the case of controversial question of
facts or law, the proper course for a Court is to decide the case on merits in the light of evidence
and the d eparture of the same would amount to deprive a person from his legitimate right. In this
regard we are fortified by the judgment reported in 1994 SCMR 826 (Jewan v. Federation of
Pakistan), wherein it was held: ---
"The Court while taking action for reje ction of plaint under Order VII, Rule 11, C.P.C.
cannot take into consideration pleas raised by the defendant in the suit in his defence, as at that
stage the pleas raised by the defendants are only contentions in the proceedings unsupported by
any evidenc e on record."
10. Thus, in the circumstances of the case, the impugned orders dated 29th August, 2009
passed by learned Civil Judge -V. Quetta and order dated 20th May, 2010 passed by learned
Additional District Judge -IV, Quetta being not legal and prope r, are set aside and the case is
remanded back to the learned Civil Judge -V, Quetta for decision afresh on merit after recording
the evidence of the parties and hearing the arguments of the learned counsel for the parties, with
no order as to costs.
KMZ/ 14/Q Petition dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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