Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: MOUJ ALI VS Respondent: MUHAMMAD ALAM
1997 C L C 1505
1997 C L C 1505
[Karachi]
Before M.L. Shahani, J
MOUJ ALI ‑‑‑Appellant
versus
MUHAMMAD ALAM and others‑‑‑Respondents
First Civil Appeal No.4 of 1995, heard on 21st April, 1997.
(a) Civil Procedure Code (V of 1908)‑‑‑
‑‑‑‑O.VII, R. 11‑‑‑Rejection of plaint‑‑‑First Appellate Court while hearing appeal against grant of interim order, not only set aside interim order but rejected plaint also, without hearing parties as to maintainability of suit‑‑ Validity‑‑‑Specific plea on basis of which plaint was rejected would not render plaint liable to be rejected for such plea being a question of fact could only be disposed of after issues had been framed and after assessing evidence and not otherwise‑‑‑Appellate Court had not even quoted law which barred plaintiff's suit‑‑‑Error committed by First Appellate Court was error of law apparent on the face of record‑‑‑First Appellate Court, had, thus travelled in the world of fantasy which was unbecoming of Judicial Officer to base his findings on grounds not urged by parties‑‑‑Judicial Officers were expected to decide cases in accordance with law‑‑‑Case decided by First Appellate Court was in negation of jurisdiction conferred on Appellate Court and contrary to the principles of administration of justice‑‑‑Case was remanded for decision in accordance with law.
Mst. Fatima Khatoon v. Ashique Ali PLD 1988 Kar. 433 ref.
(b) Qanun‑e‑Shahadat (10 of 1984)‑‑‑
‑‑‑‑Art. 2(1)(c)‑‑‑Question of fact‑‑‑Whether particular person was in possession as an owner or as Hari was question of fact which could only be resolved after parties were called upon to lead evidence.
(c) Civil Procedure Code (V of 1908)‑‑‑
‑‑‑‑O.VII, R.11‑‑‑Rejection of plaint‑‑‑Administration of justice‑‑‑Courts were expected to decide matters according to law and pleadings and after hearing parties on all points‑‑‑Judicial Officers while hearing appeal against interim order, were not expected to reject plaint and that too, without hearing arguments on that ground‑‑‑Decision so rendered was in negation of jurisdiction conferred on Appellate Court, and contrary to principles of administration of justice.
(d) Civil Procedure Code (V of 1908)‑‑‑
‑‑‑‑O.VII, R.11‑‑Interim order‑‑‑Appeal against‑‑‑Rejection of plaint during hearing of appeal‑‑‑Validity‑‑‑Held, Courts while hearing appeal against interim orders are not expected to reject plaint and that too without hearing argument: on that ground.
Abdul Ghafoor Bhurgary for Appellant
Sikandar Ali Alvifor Respondent.
Date of hearing: 21st April, 1997.
JUDGMENT
This 1st appeal calls in question a judgment given by Additional District Judge, Shahdadkot, rejecting the plaint of the appellant under Order VII, Rule 11, C.P.C.
2. The brief facts of the case are that appellant filed suit in the Court of 1st Senior Civil Judge, Larkana in which he prayed for the following relief:
(a) grant perpetual injunction, restraining the defendants from dispossessing the plaintiff illegally and forcibly out of the suit land;
(b) award costs; and
(c) grant any other relief as deemed fit and appropriate.
Alongwith plaint an application under Order XXXIX, Rules l and 2, C.P.C. was filed wherein interim relief was claimed by the appellant which was granted vide orders dated 18‑9‑1993. The respondent herein filed an appeal against the interim order granted by the trial Court in the Court of District Judge Larkana which was referred to Additional District Judge, Shehdadkot, (against the interim order granted by the Civil Judge/Trial Court).
3. In appeal the respondent urged following grounds:‑
(1) that the learned lower Court has erred at facts in allowing the respondents application.
(2) that the learned lower Court has not appreciated that if the appellant had strong prima facie case.
(3) that the learned lower Court has erred in not considering the balance of convenience in favour of dismissing the injunction application and if the injunction has been issued the appellant will be put to irreparable loss.
(4) that the learned lower Court has not clearly discussed as to how Dhall receipts produced by the plaintiff/respondents are pertaining to the above suit land.
(5) that the appeal is in time.
(6) that true copy of the order passed by lower Court is submitted herewith.
4. The learned Additional District Judge, Shahdadkot was impressed that the prayer for the declaration was not made, the prayer for possession was not made and that in paragraph No.5 the plaintiff has stated that the respondent has made a false claim to the suit land and has threatened to dispossess the appellant from the suit land illegally as such the suit is barred by law and rejected the plaint vide impugned order/judgment in this appeal.
5 The contention of learned counsel for the appellant is that
(a) The impugned order is contrary to law
(b) The impugned order is contrary to pleadings;
(c) Even otherwise the impugned order has been passed without hearing the parties on the point which was decided by the Appellate Court.
(d) The judgment, cited by the trial Court on the face of it are not applicable as such the 1st Appellate Court has fallen in error liable to be corrected in the appellate jurisdiction of this Court.
5. The learned counsel for the respondent contended that in Paragraph No.5 the plaintiff/appellant has stated that the respondent is claiming false possession at 1 on the basis of that statement learned Additional District Judge was justified in law in rejecting the plaint. His further contention was that the judgment is sustainable and that no point has been urged which may result into calling for any exceptions against the judgment impugned herein.
7. 1 have given anxious consideration to the points urged by the parties and have gone through the record with their assistancg.
8. Paragraph No.5 of the suit relied upon by learned counsel for respondent and heavily backed by reasoning of the appellate Court, reads as follows:‑
5. that the defendants have raised a false claim to the suit land and threatened to dispossess the plaintiff from the suit land illegally and forcibly. They have never been in possession of the suit land at any time. "
Whether the claim of the plaintiff/appellant against the defendant is false or not is a question of fact which can only be disposed of after the issue has been framed and after assessing the evidence and not otherwise. Paragraph No.5 of the suit quoted supra does not make the plaint liable to be rejected nor it could A be termed to be a statement made in the plaint which could be the basis of rejection of plaint, as on the basis of such statement it could not be said that the suit is barred by law. The learned Appellate Judge has even not quoted the law which bars the suit. The contention of the learned counsel for appellant that there is error committed by the Additional District Judge, Shahdadkot is an error of law apparent on the face of record is, therefore, correct.
9. His second grievance was that even order passed by the Additional District Judge is contrary to the pleadings. I have quoted the grounds urged in support of the appeal extensively in the earlier part of this judgment. The contention of the learned counsel for the appellant is again correct that the order passed by the appellate Court is, therefore, illegal and the learned Appellate Court has travelled in the world of fantasy which is unbecoming of Judicial officer to base his findings on the grounds not urged by the parties. Equally it is unbecoming of a Judicial Officer to decide the case on which no arguments were addressed as from the pleadings the maintainability of plaint is not questioned. It is expected from the Judicial Officers that they shall weave the laws of the Country on their robes. The parties may error but the Judicial Officer may refrain from committing such errors. Equally the contention of Mr. Bhurgary is borne from record that the matter was decided by the 1st Appellate Court without hearing the parties on the point which was the basis of rejection of plaint.
10. Now I would take up the judgments relied upon by the learned Counsel appearing for the respondents. In the case of Mst. Fatima Khatoon v. Ashique Ali (PLD 1988 Karachi 433) the point dealt with by this Court is pertaining to the licencee refusing to vacate the premises after the revocation of the licence. It was a case of licence which was the basis of the judgment. Clearly, therefore, it does not support the case of respondents. The case of the appellant is that he was already holding 25 paisa share and 75 paisa share has been purchased in 1964. According to him that he is in possession of the land. This point has been disputed by the respondent. It is well‑settled whether a particular person is in possession as an owner or as Hari is a question of fact which could be resolved after the parties are called upon to lead the evidence. The plaint, therefore, on such statement cannot be rejected. The learned counsel has relied upon another judgment of this Court in the case of Ali Muhammad and others v. Board of Revenue Sindh. In this case issue before the Court was whether the suit was barred under the West Pakistan Land, Reforms Regulations. No such plea has been taken in this case nor the Land Reforms Regulation has any applicability in this case. In case if the respondent takes the defence that the suit is barred by any other law, he should have specifically stated so. The respondent has not stated anywhere that the suit is barred by any law. Consequently, therefore, the case‑law relied by the Additional District Judge is not applicable.
. 11. Before parting with the case I must add that such attitude of the Judicial Officer while deciding the cases in the manner as it has been done, results into loss of confidence of citizens in the system of justice. The Judicial Officers are expected to decide the matters according to law and the pleadings and after hearing the parties on all points. It is indeed surprising that the person like Additional District Judge should decide the matter in the manner it has been done i.e. an appeal against interim injunction, while passing the order on such appeal the plaint should be rejected and that too without hearing arguments and without any grounds and prayer. Such decision I am afraid is in negation of jurisdiction conferred on the Appellate Court, and contrary to the principles for administration of justice.
12. The upshot of the discussion is that this appeal is allowed. The impugned order of 1st Appellate Court is set aside. The matter is remanded to the District Judge, Larkana for disposal according to law.
There will be no order as to costs
A.A./M‑176/K Case remanded