2010 M L D 1596
[Quetta]
Before Mrs. Syeda Tahira S afdar, J
ABDUL QADIR and 8 others ---Petitioners
Versus
SHER MUHAMMAD and 10 others ---Respondents
Civil Revision No. 171 of 2005, decided on 7th June, 2010.
(a) Civil Procedure Code (V of 1908) ---
----O. VII, R.7 & O. VI, R.17 ---Prayer clause in plaint ---Amendment in ---Relief was required
to be granted as prayed for in the plaint, but court was empowered to grant all those reliefs
which the justice demanded in the circumstances of the case, either specifically prayed or
otherwise ---Even in cas e any relief was omitted, the prayer clause could be amended as per
provisions of O. VI, R.17, C. P. C.
(b) Civil Procedure Code (V of 1908) ---
----O. VII, R.3 ---Description of suit property in the plaint ---Sufficient description for
identification of the property was required to be given in the plaint ---In case of failure of
describing the same properly, further and better particulars, could be asked from the
concerned party; or suit be allowed to be amended ---Such was no ground for dismissal of suit
on very initial stage; that too without recording of any evidence.
(c) Specific Relief Act (I of 1877) ---
----Ss. 42 & 54 ---West Pakistan Land Revenue Act (XVII of 1967), Ss.42 & 53 ---Civil
Procedure Code (V of 1908), O. VII, R.11, S.54 & O.XX, R.18 ---Suit for declaration,
permanent injunction and correction of revenue entries ---Rejection of suit---Partition of
property ---Both the parties claimed to be in possession of suit property ---Such being a factual
controversy, same could only be resolved afte r calling of evidence from both the sides ---Trial
Court, without considering that aspect, had simply rejected the suit relying on facts which
were yet to be established ---View taken by Qazi/Trial Court was not in accordance with
relevant provisions of law---Fact that as to which party was in possession, could only be
determined by recording of evidence and decision taken thereon ---Without calling record
from concerned Authorities and evidence, no decision could be arrived at ---Trial Court even
had failed to observe the provisions regulating the suits filed with prayer for partition ---
Section 54 and O.XX, R.18, C.P.C., were to be observed while deciding the issues of
partition, which the Trial Court had failed to keep in sight.
(d) Specific Relief Act (I of 1877) ---
----Ss. 42 & 54 ---Civil Procedure Code (V of 1908), O. VII, Rr. 1(i) & 11 ---Suit for
declaration and permanent injunction ---Valuation of suit---Rejection of suit for being under -
valued ---Though in the plaint, the suit had not been valued for the purpose of fixation of court
fee and assessment of jurisdiction, which was required to be made under O. VII, R.1(i),
C.P.C., but no suit could be rejected in case suit was under -valued or insufficiently stamped,
until and unless opportunity was given t o make good the deficiency to the plaintiff ---In case
the plaintiff would fail to make good the deficiency in time fixed by the court, the plaint
would be rejected.
(e) Civil Procedure Code (V of 1908) ---
----O. I, Rr.9, 10 & 13 ---Misjoinder or non j oinder of the parties ---Effect ---Order I, R. 9,
C.P.C. specifically provided that no suit would be defeated by reason of misjoinder or non
joinder of the parties ---Court was required to deal with the matter in controversy so far as
regarded the right and i nterest of the parties actually before it ---As Court could strike out or
add parties under O.I, R.10(2), C.P.C.
(f) Administration of justice ---
----Courts must not stress on deciding the cases on mere technicalities, but should try to
decide the sam e on merits.
(g) Civil Procedure Code (V of 1908) ---
----S. 115 ---Revision petition ---Appellate Court had arrived to a valid decision, which needed
no interference from High Court ---Revision petition being without merits, was dismissed,
while order o f the Trial Court was upheld.
Basharatullah for Petitioners.
Muhammad Aamir Rana for Respondents Nos.1 to 48.
Tahir Ali Baloch for Respondents Nos. 49 to 72.
Date of hearing: 18th December, 2009.
JUDGMENT
MRS. SYEDA TAHIRA SAFDAR, J .---The petitioners have preferred instant petition
being aggrieved of order dated 23 -5-2005 of Majlis -e-Shoora, Mekran at Turbat, whereby the
order dated 6 -10-2004 of Qazi Pasni was set aside, while the case was remanded to the trial
Court for deciding it on me rits. It is their contention that the appellate Court erroneously
come to the conclusion that deciding application under Order VII, Rule 11, C.P.C. issues
were required to be framed, further khasra numbers given in revenue record can be used for
identifica tion of property, moreover, non using of term rejected would not make order of trial
Court unlawful. Furthermore, the judgment in first filed suit will operate as res judicata in
second suit. They have prayed for setting aside of impugned order while order of Qazi Pasni
be restored.
The brief facts of the case are that the respondents/plaintiffs filed a suit seeking declaration,
permanent injunction and correction of revenue entries. According to them they being
residents of Nailant Kappar and Kulanchi wh ere they owned joint property while petitioners/
defendants are also residents of same area. It is their contention that the
petitioners/defendants in collusion with Tehsildar Bandobast entered their
(respondents/plaintiffs) property in their own names dep riving them of their rights despite the
facts that they have no right in the property. They prayed for declaration to the extent of their
title and entering the property in their names deleting thereby the names of defendants Nos. 1
to 39/including present petitioners. In rebuttal the defendants in their separate replies denied
title was well as possession of the respondents/ plaintiffs. Rather asserted that the property is
rightly entered in their names. Several legal objections in respect of maintainabili ty of suit
were raised.
During pendency of suit several applications under Order VII Rule 11, C.P.C. were moved by
the defendants whereby objections to the effect of suit being hit by law of estoppel, non -
joinder of parties, non -payment of court -fee, non -correction of plaint and being hit by section
12, C.P.C. were raised. The applications were contested by the plaintiffs. The trial Court after
hearing the parties accepted the applications and dismissed the suit under Order 7 Rule 11,
C.P.C. being not mai ntainable through order made on 6 -10-2004. The learned trial Court
thereby held that as the suit is in respect of declaration and correction of entries, while prayer
is to the extent of ejectment, as there is contradiction as such suit is not maintainable.
Secondly the boundaries of property in question are not given in plaint, thus for want of
proper description of property in question suit is not maintainable. Further, as per plaint the
defendants are in possession of property in question, as such suit fo r mere declaration is not
maintainable; rather they were required to file, suit seeking ejectment. As another suit for
same property is already filed by Haji Sher. Muhammad, 'which is pending, thus on same
subject matter two suits are not maintainable. Fur ther, due to the fact that previously the
father of defendants Nos.31 to 38 filed a suit against some plaintiffs and defendants wherein
it was contended that the property was already partitioned, which proved the fact of partition.
Furthermore, without ass essing the valuation suit is not maintainable. Plaintiffs also failed to
implead daughters of Mir Qasim due to non -joinder of necessary party suit cannot proceed.
The suit was dismissed by the trial Court accepting above mentioned grounds. Feeling
aggrieve d of the same the respondents/plaintiffs preferred appeal before Majlis -e-Shoora,
who after hearing the parties accepted the appeal through order dated 23 -5-2005, holding
therein that the trial Court failed to consider the relevant provision of Civil Proce dure Code
"and came to wrong conclusion. Further, ordered for remand of the case for deciding it on
merits. The petitioners are aggrieved of this order while submitted present petition seeking
setting aside of order of appellate Court and restoration of or der of the trial Court.
In matter in hand the trial Court held that the suit is not maintainable under provision of
Order VII, C.P.C. The trial Court has dismissed the suit on mere legal objections as discussed
therein. As far as objection in respect of contradiction existed in contents of the plaint is
concerned, the same is to be dealt under Order VII, Rule 7, C.P.C. Surely relief is required to
be granted as prayed for in the plaint, but a Court is empowered to grant all those reliefs
which the justice demands in the circumstances of the case either specifically prayed or
otherwise. Even in case any relief is omitted, the prayer clause can be amended as per
provisions of Order VI, Rule 17, C.P.C. The trial Court failed to consider this aspect of the
case, nor attended to the relevant provision of law. As far as objection regarding providing of
proper description of property in question in the plaint is concerned, Rule 3, Order VII,
C.P.C. is relevant, it is though mandatory that sufficient description fo r identification of the
property is required to be given in the plaint, but in case of failure of describing the same
properly further and better particulars, may be asked from the concerned party, or suit be
allowed to be amended. It is no ground for dism issal of suit on very initial stage, that too
without recording of any evidence. The trial Court made an error while recording findings to
this extent. As far as plea in respect of possession of property in question is concerned, both
the parties claimed t o be in possession of the same. It is a factual controversy which can only
be resolved after calling of evidence from both the sides. The trial Court without considering
this aspect simply rejected the suit relying on facts which are yet to be established. The view
taken by learned Qazi is not in accordance with relevant provision of law. The fact that which
party is in possession can only be determined by recording of evidence and decision taken
thereon. As such is the case in respect of findings about eff ecting of disputed entries and
partition between co -sharers. Thus without calling record from concerned Authorities and
evidence no decision can be arrived at. Even the trial Court failed to observe the provisions
regulating the suits filed with prayer for partition. Section 54, C.P.C. and Order XX Rule 18,
C.P.C. are to be observed while deciding the issue of partition, which the trial Court failed to
keep in sight, thus comes to the conclusion which is contrary to relevant provision of law.
Though in the plaint the suit has not been valued for purpose of affixation of court -fee and
assessing of jurisdiction, which is required to be made under Order VII, Rule 1(i), C.P.C. But
no suit can be rejected .in case suit is under valued or insufficiently stamped un til and unless
opportunity is given to make good the deficiency to the plaintiff, in case of his failure in time
fixed by the court the plaint shall be rejected. But in present, case though objection is raised
from defendant's side, but the trial Court nei ther come to the conclusion that there is
deficiency in payment of court -fee or suit is under valued, nor any opportunity was given
despite the same the plaint was rejected. Order made is in violation of relevant provision of
law. The trial Court further f ailed to observe this provision of law and come to a wrong
decision. Further, the assessment and value is to be determined only after procuring of
evidence which is yet to be called. As far as objection in respect of filing of previous suit
with same subje ct-matter is concerned. The learned appellate Court specifically discussed this
aspect of the case and arrived to the conclusion, also perusing the record of said cases, the
mentioned suits are of distinct cause of actions. Thus not barred under section 11 , C.P.C. The
learned appellate Court decided this issue properly and comes to right conclusion. It is also
finding of trial Court that suit is not maintainable due to non -joinder of necessary parties.
Order 1 Rules 9, 10 and 13, C.P.C. are relevant in resp ect of non joinder, misjoinder of
parties and raising objections to said extent. But it is specifically provided in Rule 9 that no
suit shall be defeated by reason of misjoinder or non -joinder of the parties, rather the Court is
required to deal with the m atter in controversy so far as regards the rights and interest of the
parties actually before it. Further, as per Rule 10(2), C.P.C. the court can strike out or add
parties. The trial Court while dealing with this objection overlooked these provisions of l aw,
thus comes to an erroneous findings.
In view of above discussion the trial Court without observing the relevant provisions of
law comes to conclusion that suit is not maintainable under Order VII Rule 11, C.P.C., which
is surely an erroneous view. Th e courts must not stress on deciding the cases on mere
technicalities, rather try to decide the same on merits. The learned appellate Court has arrived
to a valid decision, which needs no interference from this Court. In the circumstances the
petition is d ismissed being without merits, while the order dated 23 -5-2005 of Majlis -e-
Shoora Mekran at Turbat is hereby upheld. In addition the trial Court is directed that issues
be framed on factual as well as on legal grounds, while on concluding of trial case be decided
on merits.
No orders as to costs.
H.B.T./74/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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