2017 C L C 1593
[Balochistan]
Before Nazeer Ahmed Langove, J
ZONAL MANAGER CANTEEN STORE DEPARTMENT, QUETTA CANTT. ----
Petitioner
Versus
ABDUL REHMAN---- Respondent
Civil Revision No.163 of 2015, decided on 23rd June, 2017. Civil Procedure Code (V of 1908) ---
----O. VII, R. 11---Suit for declaration and injunction---Rejection of plaint ---Principles ---
Plaintiff claimed that he was running a shop in the Canteen Store Department (Cantonment)
under an agreement and due to his old age he had to employ his t wo nephews in shop so as to run
the affairs of business ---Canteen Store Department (CSD) issued a notice to plaintiff to vacate
shop in question---Trial Court allowed application filed by CSD and rejected the plaint but Lower Appellate Court set aside the order and remanded matter to Trial Court for decision afresh after affording opportunity to produce evidence by the parties ---Validity ---For rejection of plaint,
material available on record had intrinsic value and same was rightly appreciated by Trial Cou rt,
who had buried meritless litigation at its inception and no serious exception could be taken to such course ---Lower Appellate Court erred in law by holding that order passed by Trial Court
was not sustainable under law and matter was liable to be tried on merits ---Trial Court passed a
well-reasoned and speaking order which did not suffer from any illegality or irregularity and
same was not open to any exception, hence was maintained ---High Court set aside order passed
by Lower Appellate Court being with out any jurisdiction and based on non- appreciation of
evidence and record ---Revision was allowed in circumstances.
1999 SCMR 394; 2002 SCMR 338; PLD 2013 SC 239; 1994 CLC 1248 and PLD 1995
Lah. 181 ref.
Waseem Akbar Dumar for Petitioner.
Date of hearin g: 16th June, 2017.
JUDGMENT
NAZEER AHMED LANGOVE, J. --- Instant petition is directed against the order dated
26.05.2015, passed by the learned Additional District Judge -V, Quetta, with prayer, to set aside,
the same by upholding, the order dated 24.04.2015, passed by Civil Judge -III, Quetta.
2. Brief facts of the case are that, the plaintiff, namely Abdul Rehman, filed a suit for
declaration and permanent injunction with the averments that he is a businessman by profession,
applied for shop to the petitioner/defendant, after following procedural formalities, he was allotted a shop at CSD Quetta Cantt., vide agreement, executed, in month of June, 1997, in pursuance thereto, he started work, on canteen and proved himself, a good pay master, on
completion of 12 months of tenancy, the petitioner enhanced the rent at the rate of 10%. That the
plaintiff had incurred an amount of Rs.1500,000/ - (Rupees Fifteen Lac) on renovation of the
shop, that on account of his old age, he could not manage the affairs/business, as such, employed
his two nephews in the shop, so as to run the affairs smoothly. That on 20.01.2015 he was served with the following notice:-
"A contract between CSD and Snack Bar Shop has concluded on the name of Mr. Abdul Rehman son of Mr. Abdul Rahim. Through reliable sources, the undersigned has come to know that the above named individual has been died and you are running the shop illegally.
You are hereby instructed to vacate the shop by 31st January, 2015 and handover the keys to the undersigned. Al so ensure that utility bills are paid."
Hence the instant suit with following prayer:-
It is respectfully prayed that a decree may kindly be passed in favour of the plaintiff and against the defendant with the following effect:
(i) To declare that the plai ntiff is alive and the Notice dated 01.01.2015 issued by the
defendant for vacation of shop (Snack Bar) and dispossessing of plaintiff from the shop
in question is highly illegal, unlawful, and issued, without investigation that a live person has been show n dead which is highly objectionable.
(ii) Defendant be directed not to disturb the business of the plaintiff and he be
allowed to continue his business without any interference.
(iii) Interim Injunction may kindly be granted till the disposal of the suit in respect of
Unit/Shop (Snack Bar) CSD Quetta Cantt.
(iv) Any other relief which this Honourable Court may deem fit and proper in the
circumstances of the case.
3. After service of notice, the defendant/petitioner filed an application under Order VII,
Rule 11, C.P.C. with the contention, that since, the suit filed by the plaintiff is based on mala
fides and without any cause of action is liable to be dismissed, because he had violated the terms
and conditions of the agreement, whereby he had been allotted a shop at CSD, besides subletting the aforesaid shop, by violating the terms and conditions of the agreement, again.
4. Trial Court, after hearing the parties and evaluating evidence, available on record,
allowed the application filed by the petitioner and rejected the plaint vide order dated 24.04.2015 passed by Civil Judge -III, Quetta.
Order/decree passed by the Civil Judge was assailed in appeal, while disposing of the
appeal, the appellate Court remanded the matter to the trial Court for decision on merits, after
affording opportunity of evidence to the parties. Hence this petition.
5. Learned counsel for the petitioner argued that the order impugned, passed, by the
appellate Court is contrary to law, facts and principles of natural justic e, because it is the demand
of the law and justice that incompetent suit should be buried in its very initial stage, he added
that in frivolous claims rejection of the plaint will save the precious time of the court, that after expiry of tenancy period i.e . 13th June, 1998 the plaintiff failed to get the tenancy renewed,
besides fell into the defective clause of subletting the shop to someone else, but this important aspect of the matter escaped notice of the appellate court which caused miscarriage of just ice.
The learned counsel relied upon the following judgments:
(1) 1999 SCMR 394; (2) 2002 SCMR 338; (3) PLD 2013 SC 239; (4) 1994 CLC 1248 (5) PLD 1995 Lahore 181
On the other hand, despite service, and repeated directions, the defendant did not bother
to appear before this court, nor his counsel honoured his repeated undertakings for various times
to file power in this behalf. In such circumstances, I have left with no other option, except to decide the case on merits.
6. I have heard learned counsel for the petitioner and gone through the record with due care
and caution, which reflects that the instant suit was filed for declaration and permanent injunction with the prayer mentioned hereinabove, contested on the point of maintainability,
which convinced the trial court by way of order dated 24.04.2015, whereby it rejected the plaint
however, the learned Additional District Judge -III, Quetta remanded the matter for decision on
merits, which in my opinion was not right, for the reasons that the very suit f iled by the plaintiff
was not maintainable. In various cases it is consistently held by the apex court of the Country that it is the requirement of law that incompetent suit should be buried at its inception and such a practice is in the interest of litiga ting parties and judicial institutions themselves, because
rejection of plaint would save the time and expenses of the parties, and courts, get more time to devote at, for the genuine causes, for rejection of plaint material available on record was intrins ic
value, rightly appreciated by Civil Judge -III, Quetta, the trial court had rightly buried meritless,
litigation at its inception, and no serious exception could be taken to the course adopted. While the appellate court erred in law by holding that the o rder impugned passed by the trial court is
not sustainable under the law and the matter is liable to be tried on merits.
7. Another important factor, was filing appeal, before the wrong forum, should have been
attended to by the appellate court. Definitely the value of suit is more than 05 lac but the appeal
was not filed before the proper forum, we know that the forum of appeal is to be determined according to the value of the suit as mentioned in the plaint, but this aspect of the matter too, escaped noti ce of the appellate Court.
8. The plaintiff/respondent did not approach the competent court of jurisdiction with clean
hands by concealing the material facts of having spent a huge amount, Rs.15,000,00 (Rupees Fifteen Lac) in renovation of the shop, surpri singly in appeal, it was mentioned as 150,000 (One
Lac Fifty Thousand Only), such a deviation itself is fatal and sufficient to belie the very stance of
the plaintiff, he subletted the shop to a 3rd party which otherwise amounts to clear violation of the terms and conditions of the agreement, executed between the parties.
9. So far as the amendment in the pleadings is concerned, if a proposed amendment, change
the entire complexion of the plaint and nature of the claim, so made, would not be permissible and should not be allowed.
It is observed with grave concern that demeanor of the respondent was not proper, despite
clear directions, made by this court on 29.06.2015 to appear in person but not complied with, same happened by filing no power on behalf of t he respondent Abdul Rehman, despite repeated
undertakings of the learned counsel.
10. Trial court passed a well -reasoned and speaking order, which does not suffer from any
illegality or irregularity thus is not open to any exception, hence is maintained, c onsequently, the
order dated 26.05.2015 being without any jurisdiction and based on non- appreciation of evidence
and record, passed by the Additional Sessions Judge -V Quetta, is hereby set aside, consequent
thereto, the order dated 24.04.2015, passed by the trial Court is restored.
Orders accordingly. The parties are left to bear their own costs.
MH/122/Bal. Revision allowed.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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