2020 C L C 1458
[Balochistan]
Before Abdul Hamid Baloch, J
KHAERI KHAN and 5 others ----Petitioners
Versus
MUHAMMAD SIDDIQUE alias SIDDIQO and 8 others ----Respondents
Civil Revision Petition No.(S)04 of 2018, decided on 25th November, 2019.
(a) Specific Relief Act (I of 1877) ---
----Ss. 42, 8 & 54--- Civil Procedure Code (V of 1908), O. VII, R. 11--- Suit for declaration,
possession, mesne profits and permanent injunction---Rejection of plaint ---Report of local
commissioner ---Scope ---Petitioners as sailed order of trial court whereby plaint was rejected
under O. VII, R.11, C.P.C.---Validity ---Trial Court had to look into the contents of the plaint
and examine the same on its face value ---Trial Court could have rejected the plaint if it
manifested any infirmity as enumerated in O.VII, R.11, C.P.C. to avoid wastage of time and
unnecessary harassment of the opposite party--- None of the clauses of O.VII, R.11, C.P.C.
were attracted in the present case rather the order of the trial court was based on the r eport of
local commissioner ---Report by local commissioner could not have been made a basis for
decision of the case rather it was the duty of the trial court to examine the local
commissioner followed by an opportunity of cross -examination to the parties ---Revision
petition was accepted and the matter was remanded to the Trial Court for decision on merits.
Haji Allah Bukhsh v. Abdul Rehman and others 1995 SCMR 459; Mst. Siraj Zarnani
v. Azher Iqbal 2004 MLD 337 and Mst. Mehran Afzoon v. Mst Khatoon 2013 YLR 2185 ref.
(b) Civil Procedure Code (V of 1908) ---
----O. VII, R. 11--- Rejection of plaint--- Requirements ---Court has to look into the contents
of the plaint and examine the same on its face value ---Court shall reject the plaint if it
manifests any infi rmity as enumerated in O.VII, R.11, C.P.C. to avoid wastage of time and
unnecessary harassment of the opposite party.
Haji Allah Bukhsh v. Abdul Rehman and others 1995 SCMR 459 and Mst. Siraj
Zarnani v. Azher Iqbal 2004 MLD 337 ref.
(c) Administration of justice ---
----Matter to be decided on merits and technicalities were not to be hurdle in the way of
justice.
Munir Ahmed v. District and Sessions Judge Lasbella at Hub 2015 CLC 1053 ref.
Ali Hassan Bugti for Petitioner.
Ahsan Rafiq Rana for Responden ts.
Date of hearing: 25th October, 2019.
JUDGMENT
ABDUL HAMEED BALOCH, J. ---This order shall dispose of Civil Revision
Petition No. 04 of 2018, which is directed against the order and decree dated 20th January,
2018 (impugned order) passed by the learned Additional District Judge, Dera Bugti at Sui
("appellate court") in Civil Appeal No. 13 of 2017 whereby the appeal filed by the petitioners against the order and decree dated 24.08.2017 passed by the learned Civil Judge, Dera Bugti at Sui (trial court) in Civil Suit No.05 of 2017 was dismissed.
2. Brief facts of the case are that the petitioners filed a "Suit for Declaration, Possession
Mesne Profits and Permanent Injunction" against the respondents before the trial court. The trial court issued notices to the respondents with direction to submit their written statements. The respondents on receipt of notices submitted their joint written statement followed by an application under Order VII, Rule 11, C.P.C. for rejection of the suit. During trial the
petitioners also submitted an application for appointment of local commissioner, which was accepted and Mr. Ghulam Mustafa Jakhrani Advocate was deputed as local commissioner, who visited the suit land and submitted his report. The trial court on recei pt of local
commissioner's report and after hearing both the parties vide order and decree dated
24.08.2017. accepted the application under Order VII, Rule 11, C.P.C. and rejected the suit with cost of Rs.40,000/ -.
3. Being aggrieved from the order and dec ree passed by the trial court the petitioners
assailed the same before the appellate court, which too was dismissed vide impugned order and decree, hence this Revision Petition.
4. Heard. Record perused. The perusal of record reveals that the petitioners f iled a suit
against the private respondents, which was contested by the private respondents by way of filing written statements followed by an application under Order VII, Rule 11, C.P.C. During proceedings the petitioners filed an application for appointm ent of local commissioner which
was accepted and local commissioner visited the site and submitted his report. The trial court on receipt of report of local commissioner and hearing both the parties accepted the application under Order VII, Rule 11, C.P.C. and the suit filed by the petitioners was
rejected. Appeal filed thereon was also dismissed by the appellate court being barred by time. The Order VII, Rule 11, C.P.C. being relevant is reproduced as under: -
11. Rejection of plaint: "The plaint shall be rejected in the following cases.
(a) Where it does not disclose a cause of action;
(b) Where the relief claimed is undervalued, and the plaintiff, on being required by
the Court to correct the valuation within a time to be fixed by the Court, fails to do so;
(c) Where the relief claimed is properly valued, but the plaint is written upon paper
insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp -paper within a time to be fixed by the Court, fails to do so;
(d) Where the suit appears from the statement in the plaint to be barred by any law."
5. In view of above to invoke the applicability of clause (a) the Court shall look into the
contents of the plaint only and shall examine the plaint on its face value. If the plaint by
itself manifests any infirmity as enumerated in. clauses (a) to (d) of Rule 11 of Order VII, C.P.C. then the Court shall order the rejection of the plaint to avoid wastage of time of Courts and unnecessary harassment of the opposite party . In this regard reliance is placed on
the case of Haji Allah Bukhsh v. Abdul Rehman and others (1995 SCMR 459) and on the case of Mst. Siraj Zamani v. Azher Iqbal (2004 MLD 337).
6. But contrary to the above since the clauses (a) to (d) of Rule 11 of Ord er VII, C.P.C.
do not attract in the instant case rather the order of the learned trial court is based on the report of local commissioner. Mere submission of report of local commissioner cannot be based for decision of a case rather it was the bounded dut y of the trial court to examine the
local commissioner followed by affording opportunity of cross -examination to the parties.
Reliance is placed on the case of Mst. Mehran Afzoon v. Mst. Khatoon 2013 YLR 2185.
7. As far as the order of the appellate court is concerned, the appellate court dismissed
the appeal being one or two days' time barred. It is settled principle of law that the matter should be decided on merits and technicalities should not be hurdle in the way of justice. The learned appellate cour t has arrived at wrong conclusion, and decided the appeal on
technicalities. In this regard reliance is placed on the case of Munir Ahmed v. District and Sessions Judge Lasbella at Hub (2015 CLC 1053).
In view of above the revision petition is accepted a nd both the orders of the courts
below are set -aside. The matter is remanded to the trial court with direction to frame issues,
and after providing proper opportunity of producing the respective evidence to the parties, decide the matter on merits strictly in accordance with law.
SA/172/Bal. Petition accepted.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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