ORDER SHEET
IN THE HIGH COURT OF SINDH,
CIRCUIT COURT, HYDERABAD.
C.P.No.D-275 of 2008.
DATE ORDER WITH SIGNATURE OF JUDGE
Present:-
Mr. Justice Nadeem Akhtar
Mr. Justice Shahnawaz Tariq
Date of hearing:-26.02.2014
Mr. Eijaz Ali Hakro Advocate for the petitioner.
Mr. Allah Bachayo Soomro Addl. A.G. Sindh.
None present for the respondent No.1.
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SHAHNAWAZ TARIQ- J:- Through instant petition, the petitioner Jan Muhammad has impugned judgment dated: 07.07.2007 and decree dated: 14.07.2008 passed by the learned I- Additional Sessions Judge, Nawabshah, in civil revision No. 09/2005( M/S Shell Pak Limited v. Government of Sindh & others).
2. The petitioner has sought following prayers:-
a) It be declared that the Judgment dated 7.7.2007 & decree dated 14.7.2008 passed in Civil Revision No.9/2005 (M/s Shell Pak Limited Versus Government of Sindh & others) by 1st ADJ Nawabshah, allowing the Revision and rejecting the plaint in F.C. suit No.264/2004 (Jan Muhammad Versus Government of Sindh & others and setting-aside the order dated 25.02.2005 passed in the above F.C. suit No.264/2004 by 2nd Senior Civil Judge Nawabshah, is illegal, without jurisdiction, against the provision of law and may be set-aside and declared as of no legal effect.
b) It may further be declared that the order dated 25.02.2005 passed on application U/O 7 rule 11 CPC in F.C. Suit No.264 of 2004 (Jan Muhammad Versus Government of Sindh & others) by respondent No.5 is legal, according to law and the suit be deemed to be pending and decided on merit by trail court.
3. Relevant facts narrated in instant petition are that petitioner filed F.C. Suit No.264/2004 before the court of 2nd Senior Civil Judge, Nawabshah for Declaration and Injunction against the respondents No.1 to 3 and others, claiming to be the Zamindar of land admeasuring 0.8 acre from western side of S.No.406/1, Deh Kundah Wado, Taluka Daulatpur, District Shaheed Benazirabad (the then Nawabshah), and record was mutated in his favour vide entry No.64 dated 14.10.2003 having been purchased by him through registered Sale Deed dated 23.12.2000 for Rs. 40000/- from one Atta Muhammad and is in possession and has constructed his house thereon. The respondent No.1 along with his servants threatened the petitioner to vacate the suit land. Petitioner showed them his ownership documents. On 15.12.2004, the respondent No.1 along with SHO again threatened the petitioner to vacate the suit land within 15 days otherwise, will be dispossessed forcibly and house would be demolished.
4. The respondent No.1 / defendant No.7 in his written statement denied the claim of the petitioner, and pleaded that he has purchased the Survey No.391/3 and others and the petitioner attempted to occupy the portion thereof by wrongly claiming it to be the part of Survey No.406/1. He further asserted that the petitioner forcibly and illegally occupied portion of 0.4 acre being part of S.No.391/3 and got raised wall thereupon illegally and unlawfully.
5. The respondent No.1 filed an application under order VII rule 11 CPC before the learned trial court, which was contested by the petitioner and same was dismissed vide order dated 25.02.2005. The respondent No.1 assailed said order in civil revision application No.09/2005, which was allowed by the learned I- Additional District Judge, Nawabshah vide Judgment and Decree dated 07.07.2008 and 1.07.2008 respectively, which have been impugned by the petitioner in the instant petition.
6. The respondent No.3. Mukhtiarkar (Revenue) Daulatpur has filed parawise comments and has stated that according to entry No. 64 dated: 14.10.2003 of VF VII-B of Deh Kundah Wado, the petitioner Jan Muhammad Hothepoto had purchased an area of 0-8 Ghunta out of survey No. 406/1 of deh Kundah, Wado, from vendor Atta Muhammad son of Punho alias Punhal Khan Langah, through registered sale deed No.1028, dated: 23-12-2000, hence, as per entry in the record of Rights, the petitioner is legal owner of said land.
7. Learned counsel for the petitioner has contended that the petitioner has relevant documents of ownership in his favour and is also enjoying its possession after constructing his house whereupon. The respondent is falsely claiming to the owner of the suit land of the petitioner. The learned trial court after hearing the parties and considering their documents, has dismissed the application of the respondent No.1 moved under order VII rule 11 CPC. He further submitted that the appellate court has neither applied judicial mind nor properly considered the scheme of the provisions of order VII rule 11 CPC while passing the impugned judgment. He further contended that the appellate court has no authority to reject plaint under order VII rule 11 CPC, when the trial court has admitted the contents of plaint by rejecting the application filed by the respondent under order VII rule 11 CPC. He has relied upon 1997 MLD 778, 1998 CLC 401, 2004 YLR 1180, 2003 CLC 1922 and 1997 MLD 1835.
8. Learned counsel A.A.G. Sindh has contended that the proper remedy for petitioner was to approach the revenue authorities and not to the civil court but he with malafide intention, has filed civil suit. He relied upon the para 4 of the affidavit of the respondent No.1/ defendant No.7 filed in main suit that the demarcation of the boundaries of land viz S.No. 406 and 391/3, under section 117 of Land Revenue Act r/w Rule 67-A Land Revenue Rules, falls within the jurisdiction of Revenue Authorities and jurisdiction of the civil court is ousted and barred under section 172 of said Act. He has relied upon 1990 CLC 2005, PLD 1990 SC 1195 and 2013 CLC 1185.
9. We would like to discuss first the case law cited by the learned counsel for the petitioner as well as learned A.A.G. Sindh.
10. In case of HAJI Sher Muhammad v. Muhammad Hassan Siddiqi and others, 1997 MLD 778, it has held that revenue authorities have no jurisdiction over demarcation of town site nor they have any jurisdiction to interfere or partition such site. Demarcation of town site or partition of such site was exclusive domain of Civil Court.
11. In case of Abdul Rehman and others v. Abdul Qadir and others, 1998 CLC 401, it has held that question of title relating to land being essentially triable by civil Court and not by revenue court, contention of defendants that civil court had no jurisdiction to try the case in question was, thus, without any force.
12. In case of Muhammad v. Shahbaz and 21 others, 2004 YLR 1180, it has held that revisional Court cannot reject a plaint in place of the trial court as while hearing the revision against an order refusing to exercise the jurisdiction under order 7 Rule 11, CPC the plaint is not pending before the revisional court.
13. In case of Muhammad Zafar V. Yousaf Ali and 9 others, 2003 CLC 1922, it has held that exclusion of jurisdiction of civil court not to be readily inferred, but must be explicitly expressed or clearly implied. Where jurisdiction was excluded, even then civil Court would have jurisdiction to examine cases, where the provisions of the Act had not been complied with or statutory tribunal had not acted in conformity with fundamental principle of judicial procedure.
14. In case of M/S United Distributors Pakistan Ltd V. Ahmed Zaire Services and another, 1997 MLD 1835, it has held that court for the purpose of jurisdiction, was required to accept the contents of the plaint as correct and legally speaking the pleas raised by the defendants in rebuttal or otherwise could not be considered for declining to assume jurisdiction. From the averments of plaint in case, court had jurisdiction to proceed with the suit for recovery of amount and objection to jurisdiction of court was without merit.
15. In case of Muhammad Yousaf Khan v. Province of Sindh and others, 2013 CLC 1155, it has held that petitioners sought correction of entry in the revenue record, they should have exhausted other remedies provided in law to them in the hierarchy of revenue forums before invoking constitutional jurisdiction of High Court.
16. In case of Bashir Ahmed and four others Vs. Muhammad Rafique (1990 CLC 2005), it has held that demarcation of land in contravention of prescribed procedure, such demarcation being void, abinitio could be set-aside in revisional jurisdiction. Where rules prescribed for specific procedure for performance of a particular act, then said act must be performed in accordance with prescribed procedure and in no other way.
17. In case of Mumtaz Ahmed & another Vs. Assistant Commissioner & another (PLD 1990 SC 1195), it has held that suit for eviction of petitioner / tenants had been instituted under para 25(1) of the Regulation and no progress of any significance had been made in the proceedings of the suit. Shariat Appellate Bench of Supreme Court in the meantime declared the relevant provisions of Land Reforms Regulations as against the injunctions of Islam and accordingly ejectment proceedings were rendered ineffective. Petitioners filed Constitutional petition without seeking any intermediary remedies provided by the law, with a view to seek annulment of the proceedings, held, petitioner should have approached the High Court without exhausting other remedies provided in law in the hierarchy of the Revenue Forums. Constitutional petition being premature thus could be dismissed on that ground alone. Leave refused accordingly.
18. The operative part of the impugned order dated: 07.07.2008 passed by the appellate court is reproduced as under:-
“As already pointed out, the respondent No.7 hiding the proceedings before Revenue Authorities about demarcation of land and knowing that he was in possession of some area of land of petitioner, filed the plaint with malafide intentions, in order to hamper the Revenue Authorities from the discharge of their duty and also keep away the petitioner from his land, filed the plaint in question. In fact no cause of action accrued to him to file such a plaint. In view of the foregoing reasons, Civil Revision application is allowed and impugned order is set-aside and the plaint is rejected U/O VII Rule 11 CPC”.
19. In view of above discussion, we are of the opinion that the case laws cited by learned counsel for the petitioner are identical and applicable to the peculiar circumstances of instant matter, whereas the case laws cited by learned AAG are distinguishable from the facts and circumstances of the present case.
20. It is well settled law that a plaint can only be rejected under the parameters provided in order VII Rule 11 CPC, and beyond the above provisions, the rejections of plaint is absolute violation of the above law. In case of Ali Nawaz Vs Azizullah thrugh legal hear, PLD 2007, Karachi 347, it has held that rejection of plaint on a ground not covered by the provision of order VII Rule 11 CPC would be an exercise of jurisdiction not vested in court.
21. Perusal of the impugned order as well as other material available on record, reflects that the learned Appellate Court has exercised its jurisdiction with material irregularity and in illegal manner with utter violation of the provisions Order VII Rule 11 CPC which requires interference. Resultantly, the allegations of hidings/concealments of facts as mentioned in impugned order are not covered within the scope of rejection of plaint under Order VII Rule 11 CPC.
22. Admittedly, the petitioner has filed suit seeking declaration regarding his ownership over the suit land and permanent Injunction for restraining the respondents from dispossessing him from the suit land, and no prayer for demarcation or partition of suit land has been sought from the Court, therefore, the involved factual controversy and contrary claims of the parties, can only be resolved by recording evidence of the parties supported with their relevant documents. Consequently, Civil Court is competent to decide such dispute of the parties by conducting proceedings of the subject suit, and such jurisdiction to determine the title of suit land is not available to the Revenue Authorities.
23. In the wake of the foregoing reasons, instant petition stands allowed and the impugned order 07.07.2008 passed by the learned Appellate Court in Civil Revision Application No. 09/2005 is hereby set aside and the case is remanded back to the court of learned IInd Senior Civil Judge, Shaheed Benazirabad for its disposal, in accordance with law.
24. These are the reasons for the short order passed by us on 26.02.2014, whereby instant Constitutional petition was allowed.
JUDGE
JUDGE