"Rejection of plaint" and "dismissal of suit"

2016 C L C 1660

(a) Civil Procedure Code (V of 1908)-

---O. VII, R.11 & S.151---"Rejection of plaint" and "dismissal of suit"---Distinction---Trial Court without recording of evidence, on application filed by defendant, dismissed suit filed by plaintiff, on the ground that it was not Maintainable-- Validity--- Difference existed between dismissal of suit and rejection of plaint---In O. VII, R.11, C.P.C. words "the rejection of plaint" meant that if ingredients in O. VII, R.11, C.P.C. were available in plaint, the Court had jurisdiction and powers to reject the plaint---Dismissal of suit connoted that it was a final determination of controversy between parties meaning thereby the Trial Court could dismiss the suit only after holding inquiry and recording of evidence---Rejection of plaint provided or opened door for plaintiff for filing fresh suit but in case of dismissal of suit no fresh suit could be filed and only statutory remedy was available against dismissal order---Defendants filed application under S.151 C.P.C. by placing on record all facts finally settled between parties and plaintiffs admitted all such facts, hence, no question for further determination of any issue had arisen and Trial Court was within its rights to reject the plaint under O. VII, R.11, .C.P.C.---Dismissal of suit for invoking doctrine of res judicata was not correct interpretation of law by two Courts below-11th Courts below should have treated application under S.151, C. P. C. an application under O. VII, R.11, C.P.C. and rejected the plaint---High Court modified orders passed by two Courts below which would be deemed to be passed under 0. VII, R.11, C.P.C. and plaint was deemed to be rejected---Revision was allowed in, circumstances.

Punjab Board of Revenue, Employes Cooperative Housing Society Limited v. Additional District Judge, Lahore and others 2003 SCMR 1284; Q.B.E. Insurance (International) Ltd. v. Jaffar Flour and Oil Mills Ltd. and others 2,008 SCMR 1037; Saleem Malik v. Pakistan Cricket Board (PCB) and 2 others PLD 2008 SC 650; Federation of Pakistan through Secretary Ministry of Defence and another v. Jaffar Khan and others PLD 2010 SC 604; Arshad Ali and 6 others v. Muhammad Tufail through L.Rs. and others 2013 CLC 632; Ghulam .Rasool son of Kalu v. Ghulam Rasool and others 2007 SCMR 1924; Messrs Flying Kraft Paper Mills (Pvt.) Ltd. v. Central Board of Revenue and others 2000 SCMR 945 and Hussain Shah v. Bano Bibi and 9 others 2007 CLC 680 and Abdul Majid and others v. Abdul Ghafoor Khan and others PLD 1982 SC 146 ref.

(b) Civil Procedure Code (V of 1908)---

----O.VII, R.11---Rejection of plaint---Principles---To decide fate of plaint under O. VII, R.11, C.P.C., averments in plaint were to be read without looking at the defense and it was to be seen whether on the basis of averments made in plaint, O. VII, R.11, C.P.C. was attracted or not and from the averments made, whether jurisdiction of Court was made out or not and whether suit was barred by any law or plaint did not disclose any cause of action---Rejection of plaint was a serious matter as it non-suits plaintiff and eliminate cause of action---Such action could not be ordered without satisfying requirements of O. VII, R.11, C.P.C.

(c) Civil Procedure Code (V of 1908)---

---O. XII, R.6---Decree on admission---Principle---Admissions must be clear and unambiguous--- When admission was not clear and unequivocal and pleadings of parties raised serious preliminary pleas, which were likely to non-suit a party, Court in its discretion could refuse to pass a decree.

Sh. Naveed Shahryar and Bashir Ahmad Mirza for Petitioner.

Ch. Aish Muhammad Khan Sara for Respondent No.4.

Dr. Muhammad Irtiza Awan for Respondent No.3.

Malik Abdul Aziz Awan, Asstt. A.G., Punjab for Respondent.

Date of hearing: 13th January, 2015.

 MUHAMMAD ANWAR VS PROVINCE OF PUNJAB through District Officer (Revenue), Pakpattan
2016 C L C 1660
[Lahore]
Before Muhammad Khalid Mehmood Khan, J
MUHAMMAD ANWAR and 27 others----Petitioners
Versus
PROVINCE OF PUNJAB through District Officer (Revenue), Pakpattan and 3 others---Respondents

JUDGMENT

MUHAMMAD KHALID MEHMOOD KHAN, J.--- On 22.02.2005 the petitioners filed a suit against the respondents for declaration with permanent injunction praying that the Member, Board of Revenue./ Chief Settlement Commissioner, Lahore on.29.1.2005 passed order in violation of the judgment dated 20.02.1998 of Lahore High Court Multan Bench at Multan hence the order dated 29.1.2005 of respondent No.3 be declared without lawful authority. The respondents filed contesting written statements, the learned trial court framed the issues and fixed the case for recording the evidence. The respondent before recording the evidence filed an application under section 151, C.P.C. praying that the suit be dismissed with special costs being not maintainable. The petitioners filed reply to the application and opposed the application. The learned trial court after hearing the parties on 20.5.2009 dismissed the suit. The petitioners filed appeal against order dated 20.05.2009 which was dismissed on 03.12.2009, hence, the present revision petition.

2.Learned counsel for the petitioners submits that learned trial court as well as the learned first appellate court was not having 'jurisdiction to dismiss the suit without recording the evidence especially when the issues have already been framed; . the learned trial court maximum can reject the plaint that too under Order VII, Rule 11, C.P.C. and not under section 151, C.P.C. Learned counsel submits that both the courts below have relied upon those documents for forming its opinion which were not the part of record; the petitioners are non-suited without holding any inquiry and that the two courts below acted in violation of established principle of law that suit could not be dismissed without recording the evidence. Learned counsel has relied on Punjab Board of .Revenue, Employees Cooperative Housing Society Limited v. Additional District Judge, Lahore and others (2003 SCMR 1284), Order II, Rule 2, C.P.C., Q.B.E. Insurance (International) Ltd. v. Jaffar Flour and Oil Mills Ltd. and others (2008 SCMR 1037), Saleem Malik v. Pakistan Cricket Board (PCB) and 2 others (PLD 2008 SC 650) and Federation of Pakistan through Secretary Ministry of Defence and another v: Jaffar Khan and others (PLD 2010 SC 604).

3.Learned counsel for the respondents submits that the learned courts below have rightly dismissed the petitioners' suit as it was not maintainable for the simple reason that the matter betWeen the parties was finally settled even at the level of Hon'ble Supreme Court of Pakistan. Learned counsel submits that both the courts below were having jurisdiction to treat the application of section 151, C.P.C., the application under Order VII, Rule 11, C.P.C., the suit was hit by doctrine of res judicata. He has relied on Arshad Ali and 6 others v. Muhammad Tufail through L.Rs. and others (2013 CLC 632), Ghulam Rasool son of Kalu v. Ghulam Rasool and others (2007 SCMR 1924), Messrs Flying Kraft Paper Mills (Pvt.) Ltd. v. Central Board of Revenue and others (2000 SCMR 945), Q.B.E. Insurance (International) Ltd. v. Jaffar Flour and Oil Mills Ltd. and others (2008 SCMR 1037) and Hussain Shah v. Bano Bibi and 9 others (2007 CLC 680). Learned counsel adds that mentioning of wrong provision of law is not fatal, the .court has the power to treat the application under correct provision of law.

4.Malik Abdul Aziz Awan, learned Assistant Advocate General, Punjab supported the arguments of learned counsel for the respondents and relied on Abdul Majid and others v. Abdul Ghafoor Khan and others ,(PLD 1982 SC 146) and submits that the impugned judgments are perfectly in accordance with law. The argument of learned law officer is that the learned trial court as well as learned appeal Court rightly dismissed the suit as the petitioners admitted the earlier litigation between the parties, herce, after admission of facts there was no need to record any evidence.

5.Heard. Record perused.

6.The petitioners claim that their predecessor-in-interest had mortgaged land measuring 497 Kanals, 11 Marlas detail of which is given in para-1 of the plaint in favour of Hindu mortgagee who left Pakistan in 1947 and the property was declared evacuee. The predecessor-in-interest of the petitioners vide mutation No.1628 got redeemed the mortgaged land against consideration of Rs.2,51,000/-, the mortgage money. The respondents filed an application for setting aside the mutation of redemption which was allowed and the petitioners were forced to purchase the redeemed land being the available land under the repealed settlement laws. The respondent filed an application before respondent No.3 claiming that they are in possession of land measuring 48 Kanals, 17 Marlas, being the part of land allotted to petitioners which is declared evacuee land and the respondents are entitled for its transfer as they are in its possession, the respondent No.3 after holding detailed inquiry allotted land measuring 8 Kanals; 10 Marlas out of Khasra No.19/3, Square No.16 to respondents. Lahore High Court Bench at Multan on the respondents' challenge again on 20.02.1998 directed respondent No.3 to probe the respondents claim against land and proceeds according to law. Respondent No.3 after holding detailed inquiry found that respondents' possession is only on the land measuring 8 kanals, 10 marlas hence they are, entitled only for the transfer of said land only the respondent No.3 thus passed a transfer order in favour of respondents accordingly. The petitioners through the present petition have challenged the transfer of land measuring 8 Kanals, 10 Marlas 'transferred in favour of the respondents, claiming that order dated 29.01.2005 is in violation of order dated 20.02.1998 passed by Lahore High. Court Bench at Multan. The respondents controverted the petitioners' assertions. Learned trial court framed issues on 23.06.2006 and fixed the case for recording of evidence but before recording evidence respondents filed application under section 151, C.P.C. asserting that respondent No.3 allotted land measuring 8 Kanals, 10 Marlas vide order dated 29.01.2005 to respondents in pursuance of order dated 12.2.1998 passed in W.P.No.132-R/1981, the petitioners assailed the said order dated 12.2.1998 through CPLA No.635-L/1998 which was dismissed on 28.12.1998.

7.The respondents also assailed the order dated 29.01.2005 of respondent No.3 passed in their favour through W.P.No.46-R/2005 which was dismissed on 17.01.2006. After the dismissal of W.P. No.46-R/2005, the order of respondent No.3 dated 29.01.2005 for transfer of land measuring 8 Kanals, 10 Marlas in favour of respondents 'attained finality. It is further asserted that M/S Atta Elahi etc. also challenged the order dated 29.01.2005 through civil suit titled "Mst. Atta Elahi v. Province of Punjab" at Pakpattan and it was dismissed on 15.05.2006; the learned trial court while dismissing the suit held that till the order dated 17.01.2006 passed in W.P.No.46- R/2005 is in field no suit is maintainable. The petitioners filed reply to the said application and admitted the litigation between the parties decided by the High Court and Hon'ble Supreme Court of Pakistan but claimed that the respondent No.3 has failed to pass an order as directed by the High Court.

8.The argument of learned counsel for the petitioners is that the learned trial court, while deciding the application under section 151, C.P.C. has wrongly held that the suit is not maintainable and dismissed the suit by invoking the doctrine of res judicata; the doctrine of res judicata cannot be invoked without recording the evidence, the learned appeal court also pressed in to service the doctrine of estoppel.

9.The question arose whether the suit can be dismissed, without recording the evidence or there is a difference between the dismissal of suit and rejection of plaint? Order VII, Rule 11, C.P.C. finds mentioned the words "the rejection of plaint", meaning thereby if the ingredients in Order VII, Rule 11, C.P.C. are available in the plaint, the court has the jurisdiction and powers to reject the plaint. The dismissal of suit connotes that it is a final determination of controversy between the parties meaning thereby the learned trial court can dismiss the suit only after holding inquiry and recording the evidence. The rejection of plaint provides or opens the door for the petitioners for filing a fresh suit but in a case of dismissal of suit no fresh suit can be filed and only statutory remedy is available against dismissal order. It is a settled principle of law that doctrine of res judicata can only be invoked after recording the evidence and when the evidence is recorded the documents could be read and relied upon for delivering the judgment, in this case no evidence has been recorded nor any document has been exhibited on record. The court dismissed the instant suit on the ground of res judicata without providing an opportunity to the petitioner for repudiating the allegation.

10.It is settled principle of law that to decide the fate of plaint under Order VII, Rule 11 of the Code of Civil Procedure, averments in the plaint have to be read without looking at the defense and it has to be seen whether on the basis of averments made in the plaint, Order VII, Rule 11 Is attracted or not and from the averments made in the plaint whether the jurisdiction of the Court is made out or not and whether the suit is barred .by any law or plaint does not disclose any cause of action. Rejection of a plaint is a serious matter as it non suits the plaintiff and eliminate the cause of action. It cannot be ordered without satisfying the requirement of the above said provision. Whether a plaint discloses a cause of action or not is a question of fact, but whether it is factual controversy or not must be traced from reading the plaint itself, for the said purpose the averments made in the plaint in their entirety must be held to be correct. The test is, if the averments made in the plaint are taken to be correct in their entirety, a decree would be passed or not. In ascertaining whether the plaint shows a cause of action, the court is not required to make an elaborate enquiry into doubtful or complicated questions of law or fact. The court should not even tentatively ascertain whether the claim set out in the plaint by the Plaintiff is likely to succeed, the court has merely to satisfy itself that the allegations made in the petition, if accepted as true, would entitle the petitioner to the relief he claims. If accepting those allegations as true no case is made out for granting relief no cause of action would be shown and the petition must be rejected. The court should not take into consideration the defenses which the defendant may raise upon the merits; nor is the court competent to make an elaborate enquiry into doubtful or complicated questions, of law or fact. If the allegations in the petition, prima facie, show a cause of action, the court cannot embark upon an enquiry whether the allegations are true in fact, or whether the petitioner will succeed in the claims made by him.

11.Therefore, if the plaint discloses some cause of action or raises some questions which require to be adjudicated or decided by the judge, the mere fact that the case is weak and not likely to succeed is no ground for striking it out. But in the case of dismissal of suit the consequences are different the effect of dismissal of a suit is altogether different and distinct from the effect of rejection of the plaint, for concluding whether the plaint discloses cause of action or not. The pleas and documents of the defendants are not to be considered. In case plaint is rejected under Order VII, Rule 11, C.P.C., filing of a fresh plaint in respect of the same cause of action is specifically, permitted under Rule 13 of Order VII, C.P.C. But where the suit is dismissed, this will preclude the plaintiff to file a fresh suit on the same cause of action. Rejection of plaint takes away the very basis of the suit rendering as if there was no suit at all or that no .suit was instituted. Order of dismissal of suit while recognizing the existence of a suit indicates its termination. While deciding the application under Order VII, Rule 11, C.P.C., learned trial court ought not and could not have dismissed the suit.

12.The Court while deciding the suit have to consider the admissions as a whole and not in part. The provisions of Order XII, Rule 6 are discretionary and not mandatory and it is not incumbent on the courts in all cases to pass a judgment upon admission especially, if 'a case involves questions which cannot easily be sorted out while applying the Rule 6, Order XII Code of Civil Procedure, if the case is such that it is not safe to pass a judgment on admission, the court may in exercise of its discretion refuse to finally dispose of the same. It is no more res integra that before a court can act under Order XII, Rule 6, admissions must be clear and unambiguous. When the admission is not clear and unequivocal and the pleadings of the parties raise serious preliminary 'pleas which are likely to non-suit a party, a court in its discretion can refuse to pass a decree. It can also be not disputed that the court is vest with discretion to ask for independent corroboration of a fact not specifically denied in the pleadings considering the peculiar nature of the facts and circumstances of the case. At the same time, the court can suo Motu pass judgment under Order XII, Rule 6 where the parties have .conceded the rights of other parties.

13.In the present case, the petitioners themselves have admitted the facts of the final disposal of litigation between the parties regarding same land. The petitioners have admitted that their mutation of redemption was set aside and they purchased the land being available land, the Chief Settlement Commissioner (respondent No.3) allotted land measuring 8 Kanals, 10 Marlas to respondents vide order dated 29.01.2005. The respondents challenged the order dated 29.01.2005 through W.P.No.46- R/2005 claiming that they are entitled for the transfer of land measuring 48 Kanals, 10 Marlas and not 8 Kanals, 10 Marlas; the said writ petition was however dismissed on 17.01.2006 meaning thereby the order dated 29.01.2005 attained finality: Admittedly the petitioners have not assailed the order dated 29.01.2005 and the said order still holds field. The other issue as to how the Chief Settlement Commissioner passed order dated 29.01.2005 is also an admitted fact between the parties. The order dated 29.01.2005 was passed in pursuance of order dated 12.02.1998 passed in W.P.No.132-R/1981 whereby this Court directed the Chief Settlement Commissioner to re-inquire the matter and then allot the land to respondents according to their entitlement. The order dated 12.02.1998 was also assailed through CPLA No.635-L/1998 which too was dismissed on 28.12.1998. Admittedly in these proceedings as well as in proceedings in W.P.No.46-R/2005 the petitioners were party so the .dispute between the parties was finalized to the extent of land measuring 8 Kanals, 10 Marlas.

14.Now the question is whether the judgment of High Court as well as the IIon'ble Supreme Court of Pakistan is binding on the civil court or not. The answer is in the affirmative. The matter between the parties is finally settled and finally laid to rest to the extent of land measuring 8 Kanals, 10 Marlas, hence, no civil suit was maintainable against the order of transfer in favour of respondents.

15.The only question which require consideration is whether the suit was dismissed or the plaint was rejected. As the respondents filed an application under section 151, C.P.C. by placing on record all the facts I finally settled between the parties and petitioners admitted all these facts, hence, no question for further determination of any issue arose. The learned civil court was thus within its rights to reject the plaint under Order VII, Rule 11, C.P.C. The dismissal of the suit f3r invoking doctrine of resjudicata was not the correct interpretation of law by the two courts below. The two courts below should have heated the application under section 151, C.P.C. the application under Order VII, Rule 11, C.P.C. and. should have rejected the plaint. Hence, I accept the revision petition to the extent that the impugned orders dated 20.05.2009 and 03.12.2009 will be deemed to be passed under Order VII, Rule 11, C.P.C. and the plaint will be deemed to be rejected.

16. The revision petition is allowed in the above-said terms.

MH/M-82/LRevision allowed.