ORDERSHEET
IN THE HIGH COURT OF SINDH BENCH AT SUKKUR
1st Civil Appeal No. S-24 of 2011
________________________________________________________________
DATE ORDER
WITH SIGNATURE OF JUDGE ______________________________________________________________________
Hearing
of cases.
1.
For orders on CMA 959/2011 (Ex)
2.
For hearing of main case.
3.
For orders on CMA 960/2011 (stay)
23-08-2021.
Appellant
No.1 Ghulam Faruq present in person.
Mr.
Abdul QadirKhanzada, Advocate for the respondents.
O R D E R.
This Civil Appeal arises
out of order dated 24.11.2011 passed by learned District Judge NaushehroFeroze
in Civil Revision No. 44 of 2011, whereby, order of the trial Court dated
25.11.2010 in F.C Suit No. 213 of 2009 has been set aside and the application
under Order 7 Rule 11 CPC filed by the respondents has been allowed and the
plaint has been rejected.
The applicants’ counsel has
reportedly expired and from time to time the appellant No.1 is appearing before
the Court seeking adjournments, whereas, this matter pertains to year 2011,
therefore, record has been perused on his behalf.
The respondents’ counsel
submits that trial Court had dismissed the application under Order 7 Rule 11
CPC despite the fact that the subsequent Suit was hit by order 2 rule 2 CPC and
so also failure to deposit costs imposed in the earlier proceedings whereby
suit was withdrawn.
I have heard the Counsel for the Respondent
and perused the record and material placed before this Court including the two
conflicting orders of the Court below. The learned trial Court had passed the
following order while dismissing the said Application.
I have heard learned counsel for the defendants and
learned counsel for plaintiff and perused the case file.
The learned counsel for the defendants has
contended that the is time barred and not maintainable at law. He further
contended that suit is hit by Order2 rule 2 CPC and the plaintiff have got no
cause of action to file the present suit and plaint of plaintiff is liable to
be rejected.
On the other hand learned counsel for the plaintiff
has contended that the suit is maintainable and plaintiff have clear cause of
action and is not barred by any law. He further contended that it is just and
proper to both the parties to decide the matter on its merit. The suit of
plaintiff is on the ground of inherited property and plaintiffs in their plaint
have stated that they have right, title upon suit property to the extent of their
respective share inherited from their father. The plaintiff produced so many
documents along with order of withdrawal of suit bearing No.11/2009 Re-Ghulam
Farooque&ors vs. Ghulam Dastagir& others dated 24.03.2009, the same
order shows that the plaintiffs withdrawn their suit with permission to file a
fresh on same cause of action and same application was allowed by learned IIIrd
Civil Judge, N. Feroze to file a fresh on same cause of action by imposing cost
of Rs. 1000/-. The dispute between plaintiffs and defendants as per plaint are
on inherited property, the documents produced by the plaintiff requires for
evidence, therefore, it is just and proper to give chance both the parties to
adduce their evidence after framing proper issues and matter be decided on its
own merits. The plaintiff has not mentioned any cogent reason in the present
application, the present application in this stage the present application is
meritless the same is hereby dismissed with no order as to costs.”
Being
aggrieved the respondents preferred revision before the learned District Judge
NaushehroFeroze who vide impugned order was pleased to allow the application
under Order 7 rule 11 CPC. On perusal of the order of the learned revisional
Court, it appears that the same was passed on the ground that repeated suits
cannot be filed on the same cause of action and costs imposed has also not been
deposited, therefore, plaint liable to be rejected. The learned Court has also
relied upon Order II Rule 2 CPC.
On perusal of the record and the material
available before me I am of the view that the Appellate Court has erred in
passing the impugned order. Firstly, insofar as withdrawal of an earlier suit is
concerned, it is not in dispute that such withdrawal was with the specific
permission to file a fresh suit. Secondly, in view of Order 7 Rule 13 CPC even
if a plaint has been rejected by a Court, it can always be presented afresh even
on the same cause of action if the defects are cured. As to applicability of
Order 2 Rule 2 CPC is concerned, the same in the facts and circumstances of
this case is not attracted.
Moreover, it is also to be noted that there
may be a case that ultimately the Suit at the trial is dismissed as not
maintainable, but on the same issue it is not necessary that the plaint may
also be rejected under Order 7 Rule 11 C.P.C. Suffice it to say that the
question of whether a suit is maintainable or not is moot with respect to
whether or not a plaint is to be rejected as being barred by law. Both are a
different species altogether and it may well be that a plaint is not rejected
in terms of Order 7 Rule 11 CPC but the suit is dismissed eventually as not
maintainable for a possible host of reasons[1].
As to non-deposit of the Court fee is
concerned, it may be observed that it is a matter between the litigant and the
Court, whereas, the Court can always grant further time to deposit such costs
and if not, the suit can be dismissed for non-prosecution or otherwise being
not maintainable; but this alone is not a ground to reject the plaint.
In view of herein above facts and
circumstances of the case, I am of the view that the learned revisional Court
has erred in law and accordingly impugned order dated 24.11.2011 is set aside
and the order of the trial Court dated 25.11.2010, whereby, the application for
rejection of plaint was dismissed is restored. The suit shall be deemed to be
pending before the learned trial Court who shall proceed expeditiously in
accordance with law.
Civil appeal is allowed in the above
terms.
JUDGE
Irfan/PA.
[1]Al-Meezan Investment Management Company Ltd & Others V. WAPDA First Sukuk Company Limited, Lahore, PLD 2017 SC 1