ORDER SHEET.
IN THE HIGH COURT OF SINDH HYDERABAD CIRCUIT.
R.A.No.22/2005
Date Order with signature of Judge.
1. For Katcha Peshi.
2. For orders on CMA 104/2005.
14.11.2008.
Mr. Noor Ahmed Memon, Advocate for applicants.
Mr. Mukhtar Ahmed Khanzada, State Counsel alongwith Moula Bux AXN, Naukot.
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Applicants filed suit for declaration and injunction against the respondents mainly with following prayers:-
a) Declare that the act of the defendants No.1 to 3 in canceling the existing R.M.S and changing the outlet of plaintiff’s water course No.340/2 AR Naukot Branch, Mithrao canal is illegal, void, abinitio, improper, unjust, unwarranted by law, against the principles of natural justice and highly malafide and therefore is not sustainable in law and un-enforceable.
b) Grant permanent injunction against the defendants restraining and prohibiting them from implementing the impugned orders, changing the outlet of the plaintiffs water course and from interfering in plaintiffs taking water for their lands in accordance with existing R.M.S viz. outlet themselves or through their agents, servants, subordinates or by any other means directly or indirectly.
The suit was filed by the applicant in the Court of Senior Civil Judge-III, Mirpurkhas on 14.2.2001 which came to be numbered as F.C.Suit No.11/2001. The cause of action for filing suit was shown by the applicants/plaintiff, to have accrued about one week before presentation of plaint when they were informed about cancellation of existing water course/R.M.S and changing thereof. The continuation of cause of action was averred as the defendants had extended threats to the plaintiffs for implementation of the impugned order within a day or two at the time of filing of suit. Besides, the filing of written statement, application U/O 7 R. 11 C.P.C supported with an affidavit was also filed by the respondents/defendants on the following grounds:-
1. That from reading of the plaint it does not disclose cause of action.
2. That from reading of the plaint the suit is barred by law.
3. That prayer is made in the interest of justice.
The applicants filed counter affidavit and contested the said application, however learned trial Judge had rejected the application mainly on the following grounds:-
1. That the plaintiffs have filed the present suit on 14.02.2001 after expiry of three years, five months and fourteen days from the date of sanctioning the General RMS dated 30.8.1997. The suit as such itself is time barred.
2. That the plaintiffs have also suppressed the facts of institution of previous suit and its dismissal, having been filed by same advocate on same subject matter and between the same parties. The previous suit bearing No.52/1998 filed on 30.6.1998 in this Court and was withdrawn by plaintiffs on 19.4.2001.
3. That the act complained restraining the defendants to cancel the R.M.S already cancelled prior to institution of the present suit.
4. That mere on account of alleged apprehension no cause of action is to accrue for filing the suit as the cause of action will be accrued when the act or order attains finality.
The trial Court responding to the arguments of the plaintiffs also observed in the impugned order that “there was no necessity to give notice to plaintiffs or afford them an opportunity of being heard as the plaintiffs have been cultivating their lands on the basis of existing R.M.S, prior to 1995.”
The trial Court rejected the plaint on 24.7.2008 which was called into question through a Civil Appeal No.50/2003 which was filed in the Court of District Judge, Mirpurkhas on 12.8.2003. Appeal was admitted and after service respondents contested the appeal. By then such appeal was transferred from the Court of District Judge, Mirpurkhas to the Court of Ist Additional District Judge, Mirpurkhas where it was heard and dismissed vide impugned judgment dated 16.10.2004 and impugned decree dated 23.10.2004. The appellate Court had maintained the order of Senior Civil Judge on the account of concealment of the fact of filing of previous suit by the plaintiff bearing Suit No.52/1998 having been withdrawn on 19.4.2001 and also on the point of limitation.
Learned advocate for applicants has argued that limitation for filing of suit for declaration is governed under article 120 of the Limitation Act for which 06 years limitation is provided. Further more he has stated that there was no notice issued to him about the change of R.M.S or order passed in that respect. The limitation started from the date of knowledge, which was one week prior to the date of filing of the suit. The right to sue, accrued to plaintiffs subsequent to the knowledge, they received. He also states that question of limitation was mixed question of law and facts which could not be resolved by mere going through the contents of the plaint. He has drawn my attention towards a certified true copy of the plaint in Suit No.52/1998, which is available on record. This Suit No.52/1998 had been filed by one Haji Allah Bux s/o Muhammad Ismail Vs. Executive Engineer Mithrao Division. While referring to the plaint of this suit, he has stated that neither the plaintiffs/applicants are legal heirs of said Haji Allah Bux nor they claim title from him. The applicants had independent cause of action against the respondents. There is no bar for the applicants to bring their own suit on the basis of their own right to sue. The suit filed by one Haji Moula Bux may be a collusive one for coining a reason to create hurdles for the plaintiffs/applicants. He says that two Courts below have wrongly taken affect of filing and withdrawal of Suit No.52/1998 against the applicants/plaintiffs. The two Courts below have leaned beyond the averments made in the application for rejection of plaint which is illegal and not sustainable in the eye of law. The advocate for applicants has vehemently criticized the findings of two lower Courts and assailed the impugned orders and prayed for setting aside the judgment and decree of the appellate Court as well as order of lower Court so also he has prayed for rejection of application U/O 7 R. 11 C.P.C besides making prayer for disposal of the suit on merits.
Mr. Mukhtar Ahmed Khanzada, State Counsel has vehemently opposed the contentions of applicant’s counsel, saying that Courts are not legally bound to confine themselves to the contents of plaint only but for the purpose of achieving the ends of justice they can look into other material which may be available to them. As per him suit is time barred and withdrawal of the previous suit No.52/1998 has to affect the maintainability of suit because the suit was filed by another peechdar of the same water course. The advocate in both the suits was same. He has relied upon the cases reported as 1994 MLD 207, 2004 CLC 799, 1989 SCMR 824 and 2002 SCMR 338.
After hearing the parties, I had allowed the Revision Application with following order on 4.11.2008:-
“For the reasons to be recorded later on, the Civil Revision Application is allowed and impugned judgment dated 16.10.2004 and decree dated 23.10.2004 passed in Civil Appeal No.50/2003 (Feroze Hussain & others v. Executive Engineer & others) by the Court of Ist. Additional District Judge, Mirpurkhas are set aside, so also order dated 24.7.2003 passed by IIIrd Senior Civil Judge, Mirpurkhas in F.C.Suit No.11 of 2001 on the application under section 7 rule 11 CPC is also set aside and matter is remanded back to the trial Court for disposal according to law. The trial Court is at liberty to entertain all objections of the defendants and frame specific issues to that effect, if deems fit.”
The reasons for the above order are as follows:-
Before discussing the scope of the provision of Order VII rule 11 C.P.C in the light of circumstances of the present case it would not be improper to refer to text of said order:-
Order 7 Rule 11:- Rejection of plaint. The plaint shall be rejected in he following cases:-
(a) where it does not disclose a cause of action;
(b) where the relief claimed is under-valued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;
(c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so; and
(d) where the suit appears from the statement in the plaint to be barred by any law.
There is no dispute regarding valuation of Court fee. Sub rule (a) and (d) are attracted under the circumstance of the case, which clearly limit the action of Court within the statement made in the plaint.
The learned two Courts below have not confined themselves to the averments of plaint only but they have taken into consideration all the facts regarding Suit No.52/1998. Being influenced by the facts of filing and withdrawal of Suit No.52/1998 by one Haji Allah Bux is not only contrary to the scheme of the provisions of Order 7 Rule 11 C.P.C but thereby both the Courts below have misled themselves to wrong conclusion, extending barring effect of withdrawal of that suit on the suit of applicants. There is no prohibition in law whereby the plaintiffs could have been debarred from presenting the plaint and maintaining the suit for their own independent cause of action. The plaintiffs in suit No.52/1998 had neither filed a representative suit nor the plaintiffs/applicants in that suit had claimed their title from him as a legal heir or otherwise. The plaintiffs are well within their right to file the suit for their own cause of action and the Suit No.52/1998 has no barring affect on it due to withdrawal thereof.
The applicants have specifically stated in the plaint that they had knowledge about the change of R.M.S one week before the filing of the suit. There was no occasion to disbelieve the statements of the plaintiffs, contained in the plaint. Even if such statement as to limitation is disputed then it can only be resolved by framing issue on the point of limitation and after affording opportunity to all the parties for adducing their evidence and proving or disproving the issue in the manner provided under the law. The case laws cited by learned State Counsel are based on special circumstances in which the Courts could take into consideration certain factors outside the contents of plaint. No such special circumstance has been stated by the learned State Counsel whereby the dicta of afore mentioned citations would have been attracted. With profound respect, I am left with no option to say that facts and circumstances in the said case laws are distinguishable with the facts and circumstances of the present case. The rhetoric and discussion as incorporated in the orders of two Courts below, appears as if they were the judgment after full dress trial. Such practice of lower Courts barging on to resolve the factual controversies and deciding the mixed questions of facts and law at the state of deciding the application U/O 7 Rule 11 C.P.C is disproved. The impugned orders as mentioned in the short order are not sustainable therefore, the same were dismissed and Revision Application was allowed for the afore going reasons.
Judge
Tufail