IN THE HIGH COURT OF SINDH

CIRCUIT COURT, LARKANA

Civil Revision Appln.          :           Abdul Ghaffar &Anothervs.

No. S- 52 of 2021.                            Ghulam Nabi &Others

For the Applicants               :           Syed Muhammad Ali Shah, Advocate

Date of hearing                    :           03.02.2022.

Date of announcement      :           03.02.2022.

ORDER

Agha Faisal, J.         (1) Over ruled. (2) Granted; subject to all exceptions. (3) The plaint in the plaintiff’s suit was rejected by the learned trial Court vide Order dated 27.2.2020. The relevant findings of the learned Court are reproduced herein below:

                “The plaintiffs in their entire plaint have not stated that the defendants tried to encroach upon or occupy the Masjid or Imam Bargah, but they have alleged that the defendants No.1 to 3, illegally wanted to establish cattle shed on the open space in front of Imam Bargah and Masjid, therefore, permanent injunction be granted and the defendants may be restrained from interference and encroachment or possession over the suit property. Even otherwise, the defendants No.1 and 2 have claimed that they are in possession of the suit property since their grandfather, who creates WAKF of his plot for religious purpose and it is the suit property.

                The plaintiffs have failed to seekdeclaration as to their legal character or any right or title as to the suit property and without seeking declaration, they are seeking injunction against the defendants. The law says that the Court may grant a perpetual injunction, when the defendant invades or threatens to invade the plaintiff’s right to, or enjoyment of property, but in this matter the defendants have claimed in their joint written statement that the suit property is WAKF property of their grandfather and they are looking after its affairs being members of the family and the property s in their possession; even then the plaintiffs have not sought declaration as to their legal character or any right or tile as to the suit property, if any. It is settled principle of law that suit for permanent and mandatory injunction is not maintainable until the plaintiff shows some right, title and interest in suit property. Where, title and possession of property is in dispute between the parties, proper and efficacious remedy in such case would be a suit for declaration, possession and injunction and not for injunction alone. Title and possession of the property in dispute between parties, therefore, suit for injunction alone would not lie without prayer of declaration with regard to title and possession. Reference may be invited to 2008 CLC 418 and PLD 1988 Karachi 433.

                In view of above discussion, it is observed that suit of the plaintiffs is incompetent one and it is held by the Hon’ble Apex Courts that still born or incompetent suit should be buried at its inception so that no time is consumed on a fruitless litigation and that in the same breath it may give chance to the parties to retrace their steps at the earliest possible moment so that, if permissible he may found a properly instituted case. Reference in this regard may be made to the cases of Messrs Standard Hotels (Private) Limited v. Messrs Rio Centre and others (1994 CLC 2413), and Muhammad Akhtar and others v. Abdul Hadi and others (1981 SCMR 878). Therefore, the application under Order VII Rule 11 CPC is allowed and the plaint is hereby rejected under the said provision of law. The case laws relied on by the learned Counsel for the plaintiffs are worth great respect but not identical with facts and circumstances of this case and not favorable to the plaintiffs in attending circumstances of the case. All the other applications pending in this suit have become infructuous. There is no order as to costs.”

2. The findings were upheld by the learned appellate Court vide judgment dated 28.4.2021 and the pertinent observations are reproduced herein below:

“The perusal of record shows that admittedly appellants have not sought any declaration as to their legal character or any right or title over the suit property. It is settled principle of law that only suit for permanent injunction is not maintainable and whether title and possession of property is disputed between the parties; the proper and efficacious remedy in such case would be a suit for declaration, possession and injunction and not for permanent injunction alone. On this point, learned trial Court as well as learned counsel for respondents No.1 and 2 has very rightly relied upon case law reported as Mst. Fatima Khanum v. Ashique Ali (PLD 1988 Karachi 433) and Anwar Hussain Surya v. Sumair Builders through partners (2008 CLC 418).

It is settled principle of law that a incompetent suit must be buried at its inception in order to avoid wastage of previous time of the Court and parties. As the matter of fact, from the statement of plaint, it appears that suit is not maintainable in the present form. Moreover, no any material illegality or irregularity has been pointed out by learned counsel for appellants in the impugned Order. On the contrary, detailed, speaking and well reasoned order has been passed by learned trial Court which needs no interference by this Court at appellate stage, therefore point No.1 is answered in negative. Before parting with this, I may mention that facts and circumstances of case law relied upon by learned counsel for the appellants is totally distinguishable from the facts and circumstances of the case in hand while facts and circumstances of case law relied upon by learned counsel for respondents No.1 and 2 is applicable and relevant with the facts and circumstances of the case in hand.

In view of above discussed reasons, it appears that impugned order dated 27.2.2020 passed by the learned 1^st Senior Civil Judge, Shikarpur, is in accordance with law and is not suffering from any legal flaw, as such same is not liable to be interfered, therefore, civil appeal filed by appellants is hereby dismissed and impugned order is maintained. The parties shall bear their own costs. Let such Decree be prepared and R&Ps of F.C. Suit No.51/2019 alongwith copy of this judgment and decree be communicated to the learned trial Judge for information.”

3. Per applicants’ counsel, the present revision is rested solely on the argument that the plaintiff’s suit ought to have been decided on merits and that recourse to Order VII Rule 11 CPC was not proper, as it precluded a decision on merits. Learned counsel has not endeavored to articulate any argument insofar the applicability, or otherwise, of Order VII Rule 11 CPC is concerned and has further not articulated any rationale whereby interference of this Court would be warranted under Section 115 CPC.

4. Order VII rule 11 CPC is an independent provision of law and it cannot be rendered redundant. Whether the said provision was rightly exercised or otherwise is another question, which was never agitated by the learned counsel. However, a perusal of the orders impugned demonstrates no patent infirmity and none has been pointed out by the learned counsel.

5. In view of foregoing, no case has been made out before this Court, hence, this revision application is dismissed in limine.

                                                                    JUDGE