2010 Y L R 2011
[Quetta]
Before Mrs. Syeda Tahira Safdar, J
Mst. ZEBA and others ---Petitioners
Versus
SHER MUHAMMAD and others ---Respondents
Civil Revisions Nos. 182 and 172 of 2005, decided on 7th June, 2010.
Specific Relief Act (I of 1877) ---
----Ss. 42 & 54 ---Civil Procedure Code (V of 1908), O. VII, R.11 ---Suit for declaration
and injunction ---Application for rejection of plaint ---Defendants filed application under
O. VII, R.11 , C.P. C. for dismissal of suit being not maintainable ---Trial Court came to
the conclusion that suit was not maintainable on grounds mentioned in said application
and dismissed the suit --- Appellate Court/Majlis -e-Shoora, however, set aside order of the
Trial Court accepting appeal and remanded the case for further adjudication on merits ---
Validity ---Suit was dismissed by the Trial Court on application filed by the defendants
under O. VII, R.11, C.P.C., in its initial stage, without framing issues, simply on legal
objection raised by the defendants in their written statements ---Appellate Court reversed
the order of the Trial Court on grounds that the Trial Court neither framed any issues nor
called for evidence and that findings of the Trial Court were not based on record nor on
law---No contradiction was found in memo of plaint or prayer as alleged by the
defendants ---No suit must fail on ground of lack of proper description of property in
dispute ---While deciding a suit the material consideration was to gi ve decision on merits,
rather deciding same on mere technicalities ---Trial Court was bound to frame issues on
merits as well as on legal objections also, whereafter decide the same keeping in view the
relevant provisions of law, but Trial Court had simply decided the objections on application
made by the defendants in their application for rejection of suit ---Some of the objections
raised by the defendants were factual as well as legal and for deciding the same, evidence
was required to be called which was to be considered ---Trial Court, however, gave findings
on presumption, which was not proper ---Even objection to the extent of nail joinder and non
joinder of the parties could easily be met by adding or deleting the parties ---Trial Court had
failed to exer cise the powers vested in it and came to the conclusion which was not in
conformity with relevant provisions of law ---Appellate Court though had not discussed each
and every objection, raised by the defendants, but had arrived to correct decision that the
Trial Court had made error while dismissing the suit being not maintainable in such a way ---
No illegality or irregularity was pointed out which could make order of Appellate Court
contrary to law ---Defendants having failed to make out any case in their fav our, impugned
order of Appellate Court was upheld.
Kamran Arshad Ch. for the Petitioners (in Civil Revision No. 182 of 2005).
Muhammad Aamir Rana for the Respondents (in Civil Revision No 182 of 2005).
Basharatullah for the Petitioners (in Civil Re vision No. 172 of 2005).
Muhammad Aamir Rana for the Respondents (in Civil Revision No 172 of 2005) .
Date of hearing: 18th December, 2009.
JUDGMENT
MRS. SYEDA TAHIRA SAFDAR, J .---Above titled both the petitioners are filed by the
petitioners nam ed above being aggrieved of same orders of Qazi Pasni dated 6 -10-2004 and
order of Majlis -e-Shoora Mekran at Turbat dated 23 -5-2005. As both the petitions are filed
while challenging the validity of order of Appellate Court with same prayer, therefore, it
would be just and proper to decide both the petitions with this common order to avoid any
sort of contradiction.
The brief facts of the case are that the respondents/plaintiffs filed a suit seeking declaration of
their title in respect of property situat ed in area of defendants Nos.1 to 25's ancestral property
jointly owned by them, which is till present un partitioned, injunction and effecting of
partition of property between them is prayed.
The defendants including the present petitioners filed their separate replies thereby strongly
contested the claim of the plaintiffs/respondents in respect of property in question also denied
their right and title in the same. They further raised several legal objections, due to which the
suit is not maintainable. A ccording to them the suit is bad for unspecific description of
property in question, non joinder of necessary parties, filed beyond period of limitation, share
claimed is unspecific, non -existence of cause of action and plaint is vague. The suit was
pendin g for regular hearing when an application was also filed under provisions of Order VII,
rule 11, C.P.C. for dismissal of suit being not maintainable by the petitioners/defendants. The
trial Court after hearing the parties decided this application through o rder, dated 6 -10-2004,
whereby the trial Court comes to the conclusion that the suit is not maintainable on grounds
mentioned therein thus dismissed. Being aggrieved of the same the respondents/plaintiffs
filed appeal before Majlis -e-Shoora, who after hear ing the parties accepted the appeal, set
aside order of trial Court and remanded the case for further adjudication on merits. Feeling
aggrieved of the order of the petitioners preferred instant petitions praying for setting aside of
orders of Appellate Cou rt.
In instant petitions it is contention of the petitioners that remand of case could only be made
in terms of Order XLI, rule 23, C.P.C. and not otherwise, the order was lawfully made by the
trial Court, while order of Appellate Court is on no grounds, in case order of remand is to be
made it may be only in respect of application moved under Order VII, rule 11, C.P.C.
The counsel for the parties are heard and record is perused. It is apparent from record that the
suit was in its initial stage when the trial Court while accepting the application under Order
VII, rule 11, C.P.C. dismissed the suit being not maintainable, till then issues were not
framed. The learned trial Court while considering the application for rejection of plaint gives
findings on l egal objections raised by the defendants in their written statement. The Appellate
Court while deciding the appeal reversed the order on grounds that the trial Court neither
framed any issues nor called for evidence, rather arrived to the findings neither based on
record nor on law. The Appellate Court though not discussed each and every objection, but
arrives to correct decision that the trial Court has made an error while dismissing the suit
being not maintainable in such a way.
As per findings of learn ed Qazi the suit is not maintainable as there is clear contradiction in
contents of plaint and prayer made therein. The suit of plaintiffs is to the extent of declaration
of his title while in prayer clause correction of entries are prayed. The perusal of plaint
reveals that the respondents / plaintiffs claimed their right in respect of property in question
being share -holders in the same, while prayed for effecting of partition between them and
defendants Nos.1 to 25 as per their shares, whereafter, direct ion be issued to Revenue
Authorities for entering the names of deserving persons in record by correcting the entries.
There seems to be no contradiction in memo of plaint and prayer as alleged, in case there is
so the trial Court is empowered to grant reli ef to such extent which is nearest possible in the
circumstances, to redress the grievance of the parties. The findings in respect of non -
describing of specific share of the respondents/plaintiffs, is also not correct as suit for
partition and possession o f share thereof are governed by section 54, C.P.C. and Order XX,
rule 18, C.P.C., which describes the instances about separation of shares of the parties which
is to be carried out by the Collector in respect of property assessed to payment of revenue to
the Government or in other cases after passing of preliminary decree the inquiry be made and
further required directions be made for partition and separation. The trial Court has failed to
observe the relevant provision of law. As far as not describing the proper and specific
boundaries of property in question are concerned in case the plaint is vague to this extent
steps can be taken for bringing on record the details of property in dispute. Though as per
Rule 3 of Order VII, C.P.C. the plaint must containe d the description of property to specify
the same, but in case of failure from side of plaintiffs the Court can call better particulars of
the property in order to specify the property which is matter in dispute. No suit must fail on
ground of lack of prop er description of property in dispute. The trial Court has failed to
exercise the power vested in it. The suit is also asserted to be bad for non -joinder and
misjoinder of parties. The findings of trial Court are also not in accordance with relevant
provis ions. Rules 9 and 10 of Order I, C.P.C. deals with mis joinder and non -joinder of
parties. The Court is very much empowered to add or delete the parties as provided therein.
Further, as per Rule 9 no suit shall be defeated by reason of misjoinder or non -joinder of
parties. The findings of trial Court to this extent is also erroneous. The trial Court also comes
to the conclusion on relying some documents that suit is filed beyond period of limitation.
This cannot proceed. As the issue of limitation is mix qu estion of fact and law, in case
reliance has been made on some document, until and unless said document is brought on
record no reliance can be placed on the same, nor findings can be given on its basis. The
learned trial Court further made an error on thi s point too.
While deciding a suit the material consideration is to give decision on merits, rather deciding
it on mere technicalities. The trial Court was bound to frame issues on merits as well as on
legal objections also, whereafter decide the same ke eping in view the relevant provisions of
law. But in present case learned Qazi simply decided the objections on application made by
the petitioners/defendants that too without making basis of his findings on relevant provisions
of law. Further, some of the objections are factual as well as legal, for deciding the same
evidence is required to be called which is to be considered. But the trial Court while gave
findings without the same only on presumptions, which is not proper. Even objection to the
extent of misjoinder and non -joinder of parties can easily be meet by adding or deleting the
parties. The better particulars can also be called from the party concerned to remove the
ambiguity. The trial Court has failed to exercise the powers vested in it and come s to the
conclusion which is not inconformity with relevant provisions of law. The learned Appellate
Court while assessing the situation comes to the right conclusion by setting aside of order of
trial Court and order for remand of the cases for adjudicati on on its own merits. There is no
illegality or irregularity pointed out, which makes the order contrary to law. The petitioners
have failed to make out any case in their favour. The impugned order dated 23 -5-2005 of
Majlis -e-Shoora Mekran at Turbat is her eby upheld. In addition the trial Court is directed to
frame issues on all legal and factual grounds, thereby after recording of evidence from both
the sides decide the suit in accordance with law. The instant revision petitions bearing
Nos.182 of 2005 and 172 of 2005 are dismissed being without merits.
No orders as to costs.
H.B.T./76 -Q Petitions dismisse d.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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