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Civil Revision No. 1716‑D of 1985, decided on 15th October, 1986.

‑‑‑S . 115 & O . I I , R . 2‑‑Maintainability of suit‑‑No objection taken in Trial Court.‑‑Plea against maintainability of suit if not taken in Trial Court, held could not be entertained in revision.

Haji Abdullah Khan and others v . Nisar Muhammad Khan and others P I. D 1965 SC 690; East and West Steamship Co. v. Queensland Insurance Co. P L D 1963 SC 663; Sadiq Hussain and others v. Ghulam Rasool 1986 S C M R 322; Qazi Altaf Hussain and another v. Ishfaq Hussain 1986 S C M R 1427 and Mst. Sharifan Bibi and another v. Ghulam Hussain and others 1986 S C M R 1466 ref.

‑‑‑S. 115‑‑Concurrent findings of fact, held, could not be interfered with by High Court in exercise of revisional jurisdiction

Muhammad Akram Khokhar for Petitioner.

Hamid Mukhtar Shaikh for Respondent.

Date of hearing: 14th October, 1986.

This civil revision calls in question the judgment/ decree, dated 24‑6‑1985 of the learned Additional District Judge, Sheikhunura whereby he dismissed the petitioner‑defendant's first appeal.

2. The respondent Mst. Hajran Bibi sought a declaration that she was the sole heir of her father Nasir‑ud‑Din who died as a Shia and as such was entitled to the land in question left by him. She disputed Mutation No. 154 of 2‑5‑1978 whereby the petitioner‑defendant Muhammad Yamin was also allowed a share in his inheritance treating him a Sunni. She sought possession as a consequential relief and a permanent injunction restraining the petitioner from claiming himself to be an heir of the deceased or transferring the land in any manner.

3. It was stated in the plaint that in litigation taking place between the parties, the deceased had already been held to be a Shia not only by a Civil Judge but also in appeal by an Additional District Judge, Sheikhupura vide his judgment, dated 6‑10‑1980. She observed that the petitioner somehow through fraud, misrepresentation or by making mistatements showed him to be a Sunni and got the mutation attested in his favour.

4. The suit was resisted on a number of pleas, namely, that it was not maintainable in its present form, was without cause of action, was barred by estoppel due to the conduct of the respondent, was not brought with clean hands, was not containing correct detail of the land left by the deceased, was under‑valued for court‑fee and jurisdiction, and was bad for non‑joinder of parties. He affirmed that the deceased was Sunni and that the mutation had been rightly sanctioned. A number of issues in regard to these pleas were framed by the trial Judge who ultimately decreed the suit. The appeal, as already remarked, failed.

5. Mr. Muhammad Akram Khokhar for the petitioner took up a serious objection to the maintainability of the suit under Order II, Rule 2, C.P.C. He submitted that since on the respondent's own showing in the plaint, there had already been litigation involving the deceased's inheritance, the decision given as to his creed was final for all times and that the fresh suit, now in question, was not competent.

6. A perusal of the written statement shows that no objection under Order II, Rule 2, C.P.C. was taken against the maintainability of the suit. In the admitting note it was pointed out to learned counsel that taking such objection was essential even though it may have been a point of law. He placed reliance upon Haji Abdullah Khan and others v. Nisar Muhammad Khan and others P L D 1965 S C 690 and East and West Steamship Co. v. Queensland Insurance Co. P L D 1963 SC 663 in support of the contention that it was open for him to raise this point in revision a it was purely of law. Consequently, the respondent was called at limine stage. Arguments were heard from both the sides.

7. No doubt, the authorities relied upon by the counsel did lay down that a point of law could be raised in revision but the trend has lately changed. In Sadiq Hussain and others v. Ghulam Rasool 1986 SCMR 322 a question of law relating to limitation was not allowed to be raised before the High Court as was not taken up initially before the trial Court Likewise, in Qazi Altaf Htlssain and another v. Ishfaq Hussain 1986 S C M R 1427 a similar point of law as to the maintainability of the suit way not allowed to be raised in revision as it was not pleaded in the pleadings. Still further, in Mst. Sharifan Bibi and another v. Ghulam Hussain and others 1986 S C M R 1466 the evidence which was claimed to be relevant under section 11 of the evidence Act was not allowed to be considered as no such claim was made at the earliest. It is noticeable that of late it has been considered necessary that even a question of law has to be raised before the Court of first instance. Reference to previous litigation in the plaint, in fact, abegged (sic) the petitioner to take up the plea of Order II, Rule 2, C.P.C. in his reply but unfortunately he was silent about it although he took up a host of other objections.

8. Otherwise, the points involved were questions of fact. The deceased has been held to be a Shia. The respondent is not denied to be his daughter. She has already been so treated in the previous litigation where she was successful in getting the property to the exclusion of all. Indeed no other point was urged in support of the revision petition

9. Consequently, it is dismissed treating it as a Pacca case because the opposite party had been called. Costs shall be borne by the parties) themselves

H . B . T . / 664 / L . Revision dismissed

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