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Constitutional Petition No.D-442 of 1981, decided on 29th August, 1983.

---S.115 & O.VII, r.11--Application, rejection of--Rejection of application under O.VII, r.11, after taking into consideration submission made by two parties, held, a case decided and amenable to provisional jurisdic tion--Provisional Constitution Order (1 of 1981), Art. 9.

P L D 1983 Lah. 365 and P L D 1973 S C 507 ref.

---O.VII, r.11--Plaint, rejection of--Cause of action--Civil Judge not considering question whether plaintiff entitled to any right or character in respect of any property and whether suit for declaration was competent or not--District Judge, held, was within jurisdiction to take into consideration question of cause of action and came to conclusion that plaint did not disclose any right or character to which plaintiff was entitled.

P L D 1968 Kar. 107ref.

---Art.9--Civil Procedure Code (V of 1908), S.115 & O.VII, r.11--Court having jurisdiction to decide matter, held, had jurisdiction to decide same rightly or wrongly--Mere wrong decision would not entitle petitioner to bring constitutional petition against same--Order of rejection of plaint passed by District Judge was within his jurisdiction, not interfered with in circumstances.

Mazhar Ali B. Chohan for Petitioner.

Imam Ali G.Kazi, for Respondents.

Dates of hearing: 22nd and 23rd August, 1983.

.--In this petition the petitioner has challenged the order of the District Judge, Dadu dated 12-4-1981 as to be without lawful authority under Article 9 of the Provisional Constitution Order, 1981. The relevant facts are that petitioner has alleged to be in possession of Plot No.11 at Sehwan admeasuring 3,375 Sq.ft. The petitioner was served with a notice of eviction on 26-7-1973 by the Deputy Commissioner, Dadu and thereupon the petitioner filed F.C. Suit No.54 of 1973 before the District Judge, Dadu but the same was dismissed for non-prosecution on 6-11-1974. The Administrator Town Committee, Sehwan was the other defendant in that suit.

The petitioner thereafter applied for grant of said plot in 1979 and showed his willingness to pay its price but he was informed through Rubkari dated 15-5-1979 that the Revenue Board wants to give the suit plot on the basis of hluhag rights and not to the petitioner. The contention of the petitioner is that the respondent No.5 was granted plot which consists of 24,000 Sq. ft. by the Deputy Commissioner which includes the disputed plot alleged to be in possession of the petitioner.

The petitioner filed Suit No.84 of 1979 before the Senior Civil Judge, Dadu against the province of Sind and four others alleging that the order of Board of Revenue conveyed to him through Rubkari dated 15-5-1979 that the Revenue Board wants to give the suit plot on Muhag rights and not to the plaintiff was void, illegal, ultra vires and mala fide as the petitioner has the most preferential claim over the suit plot. The respondent No.5 had been impleaded as defendant No.5 in the said suit.

On 5-11-1979 the respondent No.5 moved an application under Order VII, rule 11, C.P.C for dismissal of the said suit on the ground that Suit No.54 of 1973 was dismissed in default and, therefore, Suit No.84 of 1979 was barred under Order IX, rule 9, C,P.C. and secondly on the ground that no cause of action had accrued to the plaintiff. The said application was dismissed on 16-1-1980 on the ground that the parties to the two suits as well as cause of action were different and that the plaint does disclose the cause of action.

The respondent No.5 moved an application under section 115, before the District Judge, Dadu who after notice to the petitioner allowed the same on 12-4-1981 on the ground that the suit for a declaration under section 42 of the Specific Relief Act had to be in precise terms and it was only a person who was entitled to any legal character or to any right as to any property, who may institute a suit against any person denying, or interested to deny, his title to such character or right.

The learned counsel Mr. Mazhar Ali B. Chohan for the petitioner has raised three contentions:-----

(1) That the rejection of an application under Order VII, rule 11, C . P. C . was not a case decided and hence the revision before the District Judge was not competent.

(2) That the jurisdiction of the District Judge in hearing the revision was limited and he could not travel beyond the application moved before him under Order VII, rule 11, C.P.C. ,

(3) Lastly he contended that the point on which the revision had been allowed had not been raised by the respondent and, therefore, the petitioner did not have the opportunity to meet the same.

In respect of first contention the counsel of the petitioner referred to P I. D 1983 Lah. 365 where it was decided that allowing an application for additional evidence did not amount to a case decided. However, in P I. D 1973 S C 507 (511 ) it was held by the Supreme Court that section 115 of C.P.C would be attracted if a subordinate Court to the High Court has given a decision in respect of any state of facts after judicially considering the same. It was further held that the decision need not necessarily dispose of the whole matter lawfully pending before the subordinate Court. Their Lordships of the Supreme Court in the circumstances of that case had held that the dismissal of an application for amendment of plaint and impleading new defendants amounted to a case decided and was amenable to correction in exercise of revisional jurisdiction if it falls within the ambit of any of the clauses of section 115, C.P.C.

In the above case their Lordships of the Supreme Court had approved the view taken by a Full Bench of the West Pakistan High Court reported in P L D 1964 (W.P.) Kar. 149 where it was held that section 115, C.P.C. would be attracted if a Court subordinate to the High Court has given a decision in respect of any state of facts after judicially considering the same and that the decision need not necessarily dispose of whole matter lawfully pending before the subordinate Court.

With respect following the dictum of their Lordships we are of the view that tire rejection of an application under Order VII, rule 11, C.P.C. after taking into consideration the submission made by the two parties was a case decided and the same was amenable to the revisional jurisdiction if the corrective process of section 115, C . P. C . could be attracted to the same. The first contention of the petitioner, therefore, fails.

The second submission of the counsel is again not found to be correct inasmuch as Order VII, rule 11, C . P. C makes the rejection of the plaint necessary if the cause of action is riot disclosed or the same is barred under any law. In P L D 1968 Kar. 107 it was held that the Court was bound to reject the sane if any of four defects mentioned in rule 11 comes to its notice irrespective of the fact whether such a plea has been raised or not in written statement. In this view of the matter the order of the District Judge in rejecting the plaint on the basis that the same did not disclose a cause of action in apparently legal irrespective of the fact whether the point had been raised by the respondent No.5 in his application or not. We however, find that the respondent No.5 had moved an application under Order VII, rule 11, C.P.C. and in para-3 of the affidavit of Syed Sadiq Ali Shah dated 5-11-1979 accompanying the application under Order VII, rule 11, C.P.C. it had been clearly stated that the Rubkari produced does not give any cause of action. It must however, be stated that the reason given by Syed Sadiq Ali Shah was that the Rubkari did not say that any order has been passed. But in any case the point in respect of cause of action had been clearly raised and in fact the Civil Judge should have himself considered the question whether the petitioner/plaintiff was entitled to any right or character in respect of any property and whether the suit for declaration under section 42 of the Specific Relief Act was competent or not. The Civil Judge did not do so and, therefore, the District Judge was within his jurisdiction to take into consideration the question of cause of action for declaration and he was within his jurisdiction to come to the conclusion that the plaint did not disclose any right or character to which the plaintiff is entitled. The order in question was, therefore, within the jurisdiction and could be passed by the District Judge. It is different matter whether the District Judge has passed correct order or not because once the District Judge had the jurisdiction to decide that matter he had also the jurisdiction to decide it rightly or wrongly and mere wrong decision would not entitle the petitioner to bring the petition against the same. By this observation we are not however, holding that the decision of the District Judge was incorrect in this case.

The third point of the petitioner does not seem to be justified as we do not find anywhere in the petition any allegation that the petitioner was either taken by surprise by the order of the District Judge or that the District Judge had decided the Revision Application on a point which had never been argued before him. It, therefore, appears that a point on which the District Judge has decided the revision was argued before him and in fact the order of the District Judge does show the arguments of the learned counsel for the petitioner where he has admitted that he had no other right in disputed plot except that he was tenant of Municipal Committee, Sehwan and he had been in occupation of a plot for a pretty long time. It is also mentioned in the order of the District Judge that the petitioner's counsel has taken some sault in his arguments and stated that his client was entitled to the plot on the basis of adverse possession. It is, therefore, apparent from the perusal of the order of the District Judge that the point of declaration on the basis of right or character was argued before the District Judge and the counsel for the petitioner had submitted arguments in respect of the same ant], therefore, the petitioner is not justified in raising the grievance now that ire had not been given opportunity to adequately meet the point on which the decision in revision has been made.

We, therefore, do not find any force in this petition. In view of the failure of the petitioner on the grounds taken by the petitioner it is not necessary to consider the arguments of Mr. Imam Ali Kazi to the effect that the petitioner had already been compensated for the disputed plot nor it is necessary to consider the submission of Mr. Abdul Sattar Shaikh, Additional Advocate-General that rejection of the plaint by the District Judge amounted to a decree and hence the petitioner was entitled to file an appeal against the same and he had thus an adequate remedy in law before him. The petition, therefore, fails on merits and is hereby dismissed.

M . A . K . Petition dismissed.

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