2017 CLC 264 Lahore

2017 C L C 264
[Lahore]
Before Mirza Viqas Rauf, J
SHAHID IFTIKHAR and another----Appellants
Versus
Mst. TASNEEM RANI and 4 others----Respondents
F.A.O. No.143 of 2011, heard on 3rd May, 2016.
(a) Civil Procedure Code (V of 1908)---
---- O. VII, R. 11, O. XXXIX, Rr. 1 & 2 ---Punjab Land Revenue Act (XVII of 1967), Ss.172 & 53---Correction of entries in the revenue record---Rejection of plaint while deciding petition for temporary injunction---Scope---Trial Court while disposing of application for grant of temporary injunction rejected the plaint but Appellate Court remanded the case for decision afresh---Validity---Matter in issue was not restricted to correction of entries made by the revenue officer in ordinary course of his business but plaintiff had questioned the entries in the revenue record on the ground that such entries were made illegally which had affected his rights---Bar on jurisdiction contained in S.172 of Punjab Land Revenue Act, 1967 could not be pleaded as hurdle in exercise of jurisdiction by the civil court in such circumstances---Trial Court rejected the plaint while entertaining petition for grant of temporary injunction---No opportunity was afforded to the plaintiff to explain the competency of the plaint---Provisions of O.VII, R.11, C.P.C. were not meant to surprise the plaintiff by invoking the same in order to non-suit him---Appellate Court had rightly exercised its jurisdiction while setting aside the judgment and decree passed by the Trial Court---No illegality or irregularity had been pointed out in the impugned judgment passed by the Appellate Court---Revision was dismissed in circumstances.
Rasta Mal Khan and others v. Nabi Sarwar Khan and others 1996 SCMR 78; Mushtaq Hussain v. Province of Punjab through Collector Jhelum District and 6 others 2003 MLD 109; Ghulam Farid and others v. Province of Punjab and others 2013 MLD 77 and Iftikharul Haq v. District Canal Officer and others 2005 CLC 1740 rel.
(b) Punjab Land Revenue Act (XVII of 1967)---
----Ss. 172 & 53---Correction of entries in the revenue record---Bar on jurisdiction of civil court---Scope---Section 172 of Punjab Land Revenue Act, 1967 excluded the jurisdiction of civil court in the matter with regard to correction of any entry in the record-of-rights, periodical records or register of mutation---Whenever any such entry interfered with a right of a person pertaining to the land in question he could approach the civil court for declaration of his rights in terms of S.53 of Punjab Land Revenue Act, 1967.
(c) Civil Procedure Code (V of 1908)---
----O. VII, R. 11---Plaint, rejection of---Scope---Plaint could be rejected at any time in terms of O.VII, R.11, C.P.C if same was hit by any of the clauses mentioned therein---While resorting to O.VII, R.11, C.P.C. court must ensure that plaint was clearly hit by barring clauses mentioned in the said provision.
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JUDGMENT
Ch. Rashad Abdullah Ahmad for Appellants.
Rana Muhammad Arshad Khan for Respondents Nos.1 to 3 and 5.
Nemo for Respondent No.4.
Date of hearing: 3rd May, 2016.
MIRZA VIQAS RAUF, J.--- The instant appeal is directed against the judgment dated 25th of March, 2011, whereby the learned District Judge Sialkot, while allowing the appeal filed by the respondents set aside the judgment and decree dated 14th of February, 2011 passed by learned Civil Judge Class III, Sialkot.
2.Precisely the facts necessary for adjudication of instant appeal are that respondent No.1 filed a suit for declaration and permanent injunction arraying the appellants as well as respondents Nos.2 to 5 as defendants. It was asserted in the plaint that the suit land is owned and possessed by respondent No.1. The appellants purchased some land from respondent No.2 by way of mutation No.892, however they while conniving, with each other incorporated forged and fabricated entries in Roznamcha Wakiati regarding metes and bounds of the suit property as per Rept No.214 in order to deprive respondent No.1 from his proprietary and possessory rights. The suit was contested by the appellants as well as respondents Nos.2 to 5 who filed their written statement. The suit was since accompanied with an application under Order XXX1X, Rules 1 and 2 of The Code of Civil Procedure (V of 1908), so reply was also filed to this effect. As the appellants raised preliminary objection with regard to jurisdiction of the Civil Court in their written statement, so learned Civil judge, seized with the matter, while pondering upon the application for the grant of temporary injunction proceeded not only to dismiss the said application but also rejected the plaint under Order VII, Rule 11(d) of The Code of Civil Procedure (V of 1908). The respondent No.1, feeling aggrieved from the said judgment and decree filed an appeal before learned District Judge, Sialkot which was though contested but the same was allowed vide judgment dated 25th of March, 2011 and the case was remanded to learned trial court to decide the same afresh, hence this appeal.
3.Learned counsel for the appellants submitted that plaint was rightly rejected by learned Civil Judge as the jurisdiction of the court was barred under Section 172 or The Land Revenue Act, 1967. Learned counsel maintained that correction of entries in the revenue record falls within the domain of revenue hierarchy and the suit filed by respondent No.1 was incompetent. Learned counsel contended that the learned District Judge, while allowing the appeal filed by respondent No.1 has committed an illegality. He added that impugned judgment is not tenable under the law.
4.Conversely, learned counsel for the respondents resisted the instant appeal and defended the impugned judgment.
5.After having heard learned counsel for both the sides, I have also perused the available record.
6.There is no cavil that plaint can be rejected at any time in terms of Order VII, Rule 11 of The Code of Civil Procedure (V of 1908) if the same is hit by any of the clauses mentioned therein but while penalizing a plaintiff the courts are also duty bound to take all possible care and caution before invoking the said provisions as the rejection of plaint would amount to disarm the plaintiff right at the inception of the proceedings. While resorting to Order VII, Rule 11 of The Code of Civil Procedure (V of 1908), the courts must ensure that the plaint is clearly hit by the barring clauses mentioned in the said provision of law. In this
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case, the learned Civil Judge rejected the plaint, while invoking sub-clause (d) of Order VII, Rule 11 of the Code ibid and while doing so, observed as under:-
"6…. From the perusal of record it is revealed that plaintiff has challenged the entries in the Revenue Record and through instant suit sought the correction of same. The correction of the entries is in the exclusive jurisdiction of Revenue Court. The Civil Court cannot interfere in the jurisdiction of Revenue Authorities. Moreover, Plaintiff should appear before the concerned authorities, if she has any cause of action against the said entries. There is also forum of appeal available at the revenue side, so, the instant plaint is hereby rejected under Order VII, rule 11(d), C.P.C. being barred by law. Consequently the application under Order XXXIX, Rules 1, 2, C.P.C. is also dismissed. File be consigned to record room."
There is no denial that Section 172 of The Land Revenue Act, 1967 excludes the jurisdiction of Civil Courts in the matter relating to the correction of any entry in a record-of-rights, periodical record or register of mutations but whenever any such entry interferes with a right of a person pertaining to the land in question, he can approach to the Civil Court for declaration of his rights in terms of Section 53 of The Land Revenue Act, 1967 which reads as under:-
"53.Suit for declaratory decrees by persons aggrieved by an entry in a record.-- If any person considers himself aggrieved by an entry in a record-of-rights or in a periodical record as to any right of which he is in possession, he may institute a suit for a declaration of his right under Chapter VI of the Specific Relief Act, 1877 (Act I of 1877)."
Perusal of plaint clearly reflects that the matter in issue canvassed in the plaint is not restricted to correction of entries made by Revenue Officer in ordinary course of his business but the respondent No.1 questioned the entries in the revenue record on the ground that those were made illegally which adversely affects his rights. In such an eventuality bar contained in Section 172 of The Land Revenue Act, 1967 cannot be pleaded as hurdle in exercise of jurisdiction by the Civil Court. Reference in this respect can be made to "Rasta Mal Khan and others v. Nabi Sarwar Khan and others" (1996 SCMR 78).
7.There is yet another important aspect that the plaint was rejected by the learned Civil Judge, while entertaining the application under Order XXXIX, Rules 1 and 2 of The Code of Civil Procedure (V of 1908). Perusal of order dated 14th of February, 2011 indicates that no opportunity was afforded to respondent No.1/plaintiff to explain the competency of plaint. Provisions of Order VII, Rule 11 are not meant to surprise the plaintiff by invoking the said provision in order to non-suit him in terms of Order VII, Rule 11 of the Code ibid. In somewhat similar circumstances, this Court in the case of "Mushtaq Hussain v. Province of Punjab through Collector Jhelum District and 6 others" (2003 MLD 109) did not appreciate such practice and observed as under:-
"8.The order of rejection of a plaint has to be speaking order. However, the Courts are not supposed to act in haste after the parties have been summoned and rather should decide the petition under Order VII, Rule 11, C.P.C. before adjudicating upon anything else. Reliance may be placed on the cases of: (1) Muhammad Zafar Khan v, Mst. Shehnaz Bibi and others (1996 CLC 94); and (2) Employees' Old-Age Benefit Institution and others v. Javed Iqbal and others (1997 CLC 21).
9.Instead of rejecting the plaint straightaway, the Court can resort to Order XVII, rule 3, C.P.C. asking the plaintiff to take required curative measures. But even under Order VII, Rule 11, C.P.C., an opportunity has to he afforded to the plaintiff for removing the defect. The Courts are required to read Order VI, Rule 17 and Order VII, Rule 11, C.P.C. together.
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10.But once a suit commences and the plaint is not rejected at the initial stage, the Court has then to provide an opportunity to the plaintiff to explain why the plaint should not be rejected and the Court has to wait for a reply and may then proceed to reject the plaint if the circumstances so demand.
11.But when plaint is rejected after the commencement of the suit while deciding an application under Order XXXIX, Rules 1 and 2, C.P.C, the Court acts at the back of the plaintiff. Because the case is then fixed for passing of an interlocutory order and not for determination of the question pertaining to the maintainability of the suit.
12.Such a rejection as the present one brings a surprise and sometime a shock as it happens in the case of an unexpected happening. This is neither fair nor proper nor a judicial act and it cannot he appreciated on the touchstone of the fairness while it certainly is an arbitrary order."
Reference in this respect can also be made to "Ghulam Farid and others v. Province of Punjab and others" (2013 MLD 77) and "Iftikharul Haq v. District Canal Officer and others" (2005 CLC 1740).
8.If the judgment of learned District Judge dated 25th of March, 2011 is analyzed on the above principles, there can be no second opinion that the learned lower Appellate Court has rightly exercised its appellate jurisdiction, while setting aside the judgment and decree dated 14th of February, 2011. No illegality or material irregularity is pointed out by the appellants in the impugned judgment warranting interference by this Court in exercise of appellate jurisdiction.
9.For the foregoing reasons, the instant appeal fails and is dismissed with no order as to costs.
ZC/S-56/LRevision dismissed.