PLJ 2018 Quetta 105
Present : NAZEER AHMED LANGOVE , J.
ZONAL MANAGER CANTEEN STORE, DEPARTMENT CSD QUETTA CANTT. --
Petitioner
versus
ABDUL REHMAN--Respondent
C.R. No. 163 of 2015, decided on 23.6.2017.
Specific Relief Act, 1877 (I of 1877) --
----S. 42--Suit for declaration and permanent injunction--Allotment of shop--Agreement
executed --Shop subleted-- Notice for vacation --Rejection of plaint --Maintainability --Challenge
to--Suit remanded --It is requirement of law that incompetent suit should be buried at its inception
and such a practice is in interest of litigating parties and Judicial Institutions themselves, because
rejection of plaint would save time and expenses of parties, and Courts, get more time to devote
at, for genuine causes, for rej ection of plaint material available on record was intrinsic value,
rightly appreciated by civil Judge -III, Quetta, trial Court had rightly buried meritless, litigation at
its inception, and no serious exception could be taken to course adopted, while appel late Court
erred in law by holding that order impugned passed by trial Court is not sustainable under law
and matter is liable to be tried on merits. [P. 108] A
Civil Procedure Code, 1908 (V of 1908) --
----O. VII, R. 11, Application for rejection of plaint --Appeal was field before wrong forum --
Jurisdiction of Court --Determination --Another important factor, was filing appeal, before wrong
forum, should have been attended to by appellate Court --Definitely the value of suit is more than
5 lac but appeal was not field before proper forum --Plaintiff/Respondent did not approach
competent Court of jurisdiction with clean hands by concealing material of having spent a huge
amount, 15,00,000/ - (Rupees fifteen lac) in renovation of shop, surprisingly in appeal, it was
mentioned as 1,50,000/ - (one lac fifty thousand only), such a deviation itself is fatal and
sufficient to believe the very stance of plaintiff, he subletted shop to a 3rd party which otherwise amounts to clear violation of terms and conditions of agreement, executed between parties --
Order accordingly.
[P. 108] B & C
Mr. Waseem Akbar Dumar, Advocate for Petitioner.
Date of hearing: 16.6.2017.
JUDGMENT
Instant petition is directed against the order dated 26.05.2015, passed by the learned Additional
Distr ict 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 the 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 bet ween CSD and Snack Bar Shop has concluded on the name of Mr. Abdul
Rehman son of Haji 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 31 January 2015 and handover the keys
to the undersigned. Also 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 plaintiff 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
shown 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) C.S.D Quetta Cantt.
(iv) Any other relief which this Honourable Court may deem fit and proper in the
circumstances o f the case.
3. After service of notice, the defendant/petitioner filed an application under Order VII, Rule 11,
CPC 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 dis missed, 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 filled 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, whi le 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 impugne d, passed, by the appellate
Court is contrary to law, facts and principles of natural justice, 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 justice.
The learned counsel relied upon the following judgments:
1. 1999 SCMR 394
2. 2002 SCMR 338
3. P.L.D 2013 S.C 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 under takings 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 pr ayer 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 decis ion on
merits, which in my opinion was not right, for the reasons that the very suit filed 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 s uit should be buried at its inception and such a
practice is in the interest of litigating 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, f or the genuine causes, for rejection of plaint material available on record was intrinsic
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 ta ken to the course adopted. While
the appellate Court erred in law by holding that the order 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 notice 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, surprisingly in appeal, it was mentioned as 150,000 (One Lac Fifteen Thousand Only), such a deviation itself is fatal and sufficient to belie the very stance of the plainti ff, he sublatted 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 the respondent Abdul Rehman, despite repeated under takings of the learned counsel.
10. Trial Court passed a well -reasoned and speaking order, which does not suffe r from any
illegality or irregularity thus is not open to any exception, hence is maintained, consequently, 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.
(M.M.R.) Order accordinglyThis 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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