P L D 2016 Balochistan 81
Before Muhammad Noor Meskanzai, C.J.
BOLAN MINING ENTERPRISES through Site Incharge -----Petitioner
Versus
GHOUS BAKSH and 2 others ----Respondents
Civil Revision No.208 of 2010, decided on 18th April, 2016.
Civil Procedure Code (V of 1908) ---
----O. VII, Rr. 11(d) & 3 ---Non-availability of description of suit property in the plaint ---Plaint,
rejection of ---Scope ---Res judicata, principle of ---Applicability ---Trial Court decreed the suit but
Appellate Court reject ed the plaint due to non -availability of description of suit property in the
plaint ---Validity ---Court could reject plaint at any stage of the proceedings as contemplated by
O.VII, R.11, C.P.C. ---Non-compliance of O.VII, R.3, C.P.C. did not attract the pen al provision
of O.VII, R.11, C.P.C. nor it would provide for rejection or dismissal of suit ---Plaintiff should be
directed to file an amended plaint if it was pointed out at early stage that same did not contain
description of suit property ---If evidence a vailable on record sufficiently identified the
description of suit property then Trial Court could competently pass a decree ---Description of
suit property, in the present case, was not given in the plaint but evidence to such effect was
available ---Trial Court had specifically mentioned the Khasra number while decreeing the suit ---
Appellate Court had committed material irregularity while rejecting the plaint on the ground of
non-availability of description of property in the plaint ---If findings on the iss ues recorded by the
Appellate Court were allowed to remain in field and plaintiff was permitted to file a fresh suit
then suit would be hit by the principle of res judicata ---If Appellate Court wanted to reject the
plaint at the strength of O.VII, R.3, C.P .C. then it should not have decided the issues as decision
on such issues would have the impact on final decision either way ---Impugned judgment and
decree passed by the Appellate Court were set aside and case was remanded to the Appellate
Court for decisi on on merit within specific period ---Revision was allowed in circumstances.
PLD 1965 SC 274 and PLD 1973 Quetta 24 rel.
Muhammad Riaz Ahmed for Petitioner.
Taj Muhammad Mengal for Respondents.
Date of hearing: 1st April, 2016.
JUDGMENT
MUHAMMAD NOOR MESKANZAI, C.J. --- Instant revision petition is directed
against the judgment and decree dated 01st March, 2010 passed by the Majlis -e-Shoora, Khuzdar
whereby the appeal filed by the respondents was accepted, judgment and decree dated 25th
August, 2009 passed by Qazi, Jhalawan was set aside and the plaint filed by the petitioner was
rejected.
2. Facts relevant for the disposal of instant petition are that the petitioner instituted a suit for
declaration, injunction, possession and removal of encroachment, before the Qazi Jahlawan at
Khuzdar. It was averred in the suit that on 30th January, 2004 Government of Balochistan Mines
and Mineral Department allotted a piece of land measuring 9 acres, 2 rods 39 poles to the
plaintiff/petitioner for ext racting mines. During the years 2005 -2006 the defendants/respondents
occupied/ usurped a portion of allotted land and started raising mud walls and houses. The
defendants/respondents were approached with the request to desist from their illegal act and the
relevant Government authorities were also approached time and again to remove the illegal
encroachment but all in vain, hence the instant suit. The suit way contested by the
respondents/defendants by way of filing written statement whereby the claim of
petitioner/plaintiff was repudiated. The learned trial Court out of the pleading of parties framed
as many as six issues. The plaintiff to substantiate his claim produced 8 PWs and the statement
of plaintiff's attorney was also recorded, whereas in rebuttal the defendants/ respondents
examined five DWS besides recording statements of their attorney. The learned trial Court after
hearing the parties and evaluating the evidence decreed the suit vide judgment and decree dated
25.8.2009 The respondents/defendants feeling aggrieved of the judgment and decree passed by
the trial Court preferred an appeal before the learned Majlis -e-Shoora, Khuzdar. The learned
appellate Court vide judgment and decree dated 01 -03-2010 accepted the appeal, set aside the
judgment and d ecree dated 25.8.2009 passed by the Qazi Jahalwan at Khuzdar and also
dismissed the suit, hence the instant revision petition.
3. Mr. Muhammad Riaz Ahmed, learned counsel for the petitioner contended that the
appellate court rejected the plaint under Ord er VII, Rule 3, C.P.C., this approach on the part of
appellate Court is in flagrant violation of law. It was maintained that sufficient evidence was
available on record to identify the suit property and the mere non -availability of description of
disputed property in the plaint was not fatal for the decree passed by the trial Court in view of the
clear observation of the trial court qua identification of disputed property. The Majlis -e-Shoora
adopted a new method by resolving some of the issues on the groun d of misreading and non -
reading of evidence against the plaintiff/petitioner and ultimately accepted the appeal on flimsy
ground i.e. the vague description of property and rejected the plaint. The learned counsel
submitted that provisions of Order VII, Rul e 3, C.P.C. do not warrant rejection of plaint,
therefore, the decree drawn by the appellate Court is contrary to the mandate of law. Lastly,
learned counsel prayed for acceptance of petition and remand of the case to the learned Majlis -e-
Shoora with direc tion to hear the parties and decide the appeal on merits. He placed reliance on
PLD 1965 SC 274 and PLD 1973 Quetta 24.
On the other hand, Mr. Taj Muhammad Mengal, learned counsel for the respondents
Nos.1 and 2 opposed the submissions by maintaining th at the suit was not competent, as no
description of the disputed property was given in the plaint. It was further stated that suit is
barred by time. Furthermore, the suit is hit by mis -joinder and non -joinder of necessary parties.
He further submitted tha t private land cannot be leased out by the Government and even for the
sake of argument, any lease is executed in favour a party the lessee must occupy the leased land
within three years. According to learned counsel for the respondents the respondents are in
occupation even prior to lease and no publication was made before the execution of leases
agreement. He stressed that District Magistrate is not competent to execute the lease deed and the
revenue authorities are competent to execute the same. He state d that judgment of Majlis -e-
Shoora is legal and no exception could be taken thereto. Learned counsel requested for dismissal
of petition.
4. I have heard the learned counsel for the parties and gone through the available record
with their able assistance . The perusal of record reveals that the suit filed by the petitioner was
decreed by the trial Court and upon appeal filed by the respondents the appellate Court
maintained the findings on issues Nos.1 and 2 and findings on issues Nos.3 and 4 were reversed .
In view of the findings drawn by the appellate court on issue Nos.3 and 4, the issues Nos.5 and 6
were not resolved. However, the appellate court pin pointed some irregularity but ultimately
confined its decision to the provisions of Order VII, Rule 3, C .P.C. by rejecting the plaint on the
ground that plaint did not contain description of the disputed property. There is no cavil that
Court can reject a plaint at any stage of the proceedings as contemplated by Order VII, Rule 11,
C.P.C. For the sake of con venience Order VII, Rule 11, C.P.C. is reproduced:
"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 bei ng 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 b y 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. A meaningful perusal of plaint reflects that the plaint con tains cause of action besides has
been stamped properly, therefore, clauses (a), (b) & (c) are not attracted. Now only remains
Order VII, Rule 11, C.P.C. clause (d), whether this is attractable? In my considered opinion the
answer is no, this clause does n ot apply nor is attracted for the reason that the law that bars the
suit must be clear, unequivocal and fully attracted. In this behalf the Majlis -e-Shoora while
rejecting the plaint has referred to Order VII, Rule 3, C.P.C. without referring to Order VII, rule
11, C.P.C. and considering as to whether a plaint lacking the requirement of Order VII, Rule 3,
C.P.C. would be subjected to the penal provisions of the Order VII, Rule 11, C.P.C. I am
confident to hold that the non -compliance of Order VII, Rule 3, C .P.C. does not attract the penal
provision of Order VII, Rule 11, C.P.C. nor provide for the rejection or dismissal of the suit.
Though, usually in case of non -availability of description of the disputed property in the plaint, if
pointed out at initial st age, notice thereof at such stage may culminate in directing the plaintiff to
file an amended plaint by specifying the description or to file better statement. However, if that
stage stands over the court has recorded evidence and the evidence available on record
sufficiently identifies the description of the disputed property then in that case the trial Court can
competently pass a decree in favour of the plaintiff subject to the condition the trial Court arrives
at a positive conclusion that the case of t he plaintiff stands proved at the strength of the material
available on record. I am of the firm view that in any case the trial Court merely because of non -
availability of description of property cannot reject the plaint nor dismiss the suit. By holding t he
view I am fortified by the dictum laid down in the judgment titled as 'United Bank of India Ltd.
v. Azirannessa Bewa alias Azizannessa Bewa' reported in PLD 1965 SC 274 (relevant at
page.283) wherein it was observed as under:
"The case was clearly one in which there was a duty upon the High Court to reach a
definite conclusion as to the identity of the property in suit, for a continues series of
transactions had taken place between the proprietors and the BHOUMICKS in respect of
precisely four Kattahs of land of which the Jama was precisely given, and at least three
boundaries were equally precisely indicated, and the case was not one which could be
allowed to fall on a mere conclusion of difficulty in locating the land."
Likewise, in the judgment titled as 'Mst. Bhawan and 7 others v. Hazur Bakhsh and 2
others' reported in PLD 1973 Quetta 24, wherein it was observed as under:
"During the course of argument it was argued by counsel for the appellants that the
boundaries of the land in dispute were not correctly given, therefore, according to him no
proper and effective judgment could be passed by the Courts below but this argument
also in my opinion has no force because the witnesses produced on behalf of the
respondents have given the boundaries o f the land as observed by the Majlis -e-Shoora in
its judgment. In fact defendant No.2 Ahmad who sometime acted as an Attorney and later
on appeared as a defendant in the case has given the boundaries of the lands such as in
the East Lands of Buleda Tribe, in the West Lands of Miran Bakhsh Hajam, in the North
Lands of Mittan and in the South Lands of Ahmad son of Pir Bux. More or less the same
description of the boundaries was given by witness Kaura. Be that as it may it was held in
Fazal Hussain v. Abdul Ha mid (1) that suit cannot be dismissed or plaint rejected on
account of any alleged insufficient description."
6. Admittedly, description of the property was not given in the plaint but some of the PWs
produced by the plaintiff/petitioner have categorical ly mentioned the description of the property
in their statements and also documentary evidence to such effect is available. The attorney for
the plaintiff has also mentioned the description of property in his statement. The trial Court while
decreeing the suit has specifically mentioned the Khasra number, therefore, I am of the
considered opinion that the appellate Court committed material irregularity by rejecting the
plaint on the ground of non -availability of description of property in the plaint by igno ring the
ocular and documentary evidence. Moreover, the specific findings of the trial Court, wherein a
particular Khasra number was mentioned and referred to was not ignorable. So, in all respect it
was a sufficient description, in case, the plaintiff oth erwise succeeds to prove its case. The
Majlis -e-Shoora adopted a unique and uncalled for procedure while passing the judgment
impugned. The appellate Court maintained issues Nos.1 and 2 which were already resolved by
the trial Court in favour of plaintiff/ petitioner, nevertheless reversed the findings on issues Nos.3
and 4 meaning thereby that ocular and documentary evidence produced by the plaintiff were
discarded. If these findings are allowed to remain in field and the plaintiff is permitted to file a
fresh suit by mentioning the description of property as observed by the appellate Court, the suit
would be hit by the principle of res -judicata as in fact the findings on issues Nos.3 and 4
tantamount to a complete decision of the suit, hence an illegality s ufficient enough to vitiate the
findings of the appellate Court on issues Nos.3 and 4. If the appellate Court wanted to reject the
plaint at the strength of Order VII, Rule 3, C.P.C. then the appellate Court should not have
decided rest of the issues, as t he decision on such issue would have the impact of final decision
either way.
In the light of above discussion, I am inclined to accept this petition, set aside the
judgment and decree dated 01st March, 2010 passed by the Majlis -e-Shoora, Khuzdar and
remand the case to the appellate Court. The appellate Court shall hear the parties and decide the
case on merits. Needless to observe that the appellate Court would not be prejudiced by its
findings drawn by it on issues Nos.1 to 4. The Majlis -e-Shoora Khuzd ar shall decide the case
within 1 -1/2 month after receipt of certified copy of judgment. Parties shall bear their own costs.
ZC/28/Bal. Case remanded.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,
let us know.