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2011 C L C 343

 

[Lahore]

 

Before Muhammad Khalid Mehmood Khan, J

 

MUHAMMAD INAYAT—Petitioner

 

Versus

 

Mst. SARDARAN BIBI—Respondent

 

Civil Revision No. 1170 of 2010, decided on 2nd August, 2010.

 

Baleegh-uz-Zaman for Petitioner.

 

Muhammad Arif Raja for Respondent.

 

 

ORDER

 

MUHAMMAD KHALID MEHMOOD KHAN, J.—The respondent filed a suit declaration against the petitioner before learned Civil Judge Phalia declaring mutation of sale No.801 attested on 6-6-1987 being outcome of fraud, mis-representation and without lawful authority. The petitioner filed written statement as well as an application under Order VII, Rule 11, C.P.C. raising objection that suit is barred by time. Learned Civil Court vide order dated 9-9-2009 accepted the application under Order VII, Rule 11, C.P.C. and rejected the plaint. The respondent assailed order through an appeal. The appellate Court allowed the appeal and remanded the case to the learned Civil Court for deciding the same after framing the issues and to record the evidence vide order dated 24-2-2010, hence, the present petition.

 

2. Learned counsel for the petitioner submits that leaned appellate Court while passing the impugned order has failed to advert to the record of the case and passed the same completely on erroneous grounds. The impugned order suffers from material illegality and irregularity. The learned appellate Court has wrongly held that under Article 120 of `Qanun-e-Shahadat’ Order the trial is necessary to be conducted for ascertaining the real facts and on law. He further submits that long silence of respondent was not taken into account by the learned appellate Court while passing the impugned order. He further submits that learned appellate Court has wrongly held that facts if were not clear, the learned trial Court should have record the better statement of the panties.

 

3. Learned counsel for the respondent controverted the arguments of learned counsel for petitioner and submits that learned appellate Court has rightly held that application under Order VII, Rule 11, C.P.C. was not maintainable. The petitioner is real brother of respondent and respondent is in possession of property as co-owner with the petitioner. He further submits that without recording evidence and framing issues the plaint could not be rejected as the question of imitation is a mixed question of law and facts.

 

4. The respondent filed a suit for declaration to the effect that she is owner in possession being co-sharer of land measuring 13 kanals, 7 marlas detailed in the head note of plaint being the share of 40 kanals, 2 marlas with the petitioner and mutation No. 801 attested on 6-6-1987 being the oral sale in favour of petitioner is the outcome of fraud committed by the petitioner with the collusion of Revenue Officials. The respondent in its plaint specifically averred as under:-

 

5. The petitioner filed written statement and in reply to these paras he replied as under:–

 

6. The pleadings of parties show that petitioner is denying the specific allegation of fraud and collusion levelled by the respondent. He has not specifically denied the transfer of property in his favour on 6-6-1987. He has alleged that he has purchased the property against consideration. His reply to the assertion of respondent are evasive and categorical. He has failed to deny that respondent has demanded the cancellation of mutation in his favour prior to the institution of suit. He has not denied that two weeks ago the respondent has not asked him about the return of her property. In these state of affairs the argument of learned counsel for the petitioner that the detail of fraud has not been alleged in the petition is devoid of any merit. Respondent has specifically alleged in his plaint that mutation No.801 dated 6-6-1987 is an outcome of fraud and is with the collusion of revenue officials. She has given the particulars of fraud that how the petitioner cheated her when on her refusal to lend him Rs.50,000 he asked that loan may be arranged from Agricultural Bank and in these circumstances she signed blank papers and obtained the photo copy of her identity card. The assertion of respondent was not specifically denied by the petitioner. He has not stated in his written statement that he purchased the property against consideration of Rs.7,000 as mentioned in the mutation specifically when the assertion of respondent is that mutation of sale is without consideration.

 

7. Argument of learned counsel for the petitioner that suit is barred by limitation is also not substantiated by pleadings of parties. The respondent has specifically asserted that two weeks before filing the suit the petitioner has refused to transfer her property in her name. The arguments of learned counsel for the petitioner is that the suit for cancellation of mutation of sale has been filed after lapse of 23 years but no particulars of fraud have been given and as such the suit is hit by section 39 of the Limitation Act. He further argues that non-mentioning of particulars of fraud in plaint is fatal and as such the plaint was rightly returned by the Civil, Court. He has relied on Chiragh Din v. Bakhat Bhari (2007 YLR 2941), Manzoor Ahmed v. Mst. Hanifan Bibi (1985 MLD 1255), Muhammad Ilyas v. Muhammad Bashir (PLD 2006 Lahore 365), Mian Muhammad Amin and another v. Mst. Khursheed Begum alias Naseem Begum through Legal heirs (PLD 2006 Lahore 371), Noor Bibi and 6 others v. Fazal Hussain and others (1998 SCMR 230) and also relied on Order VI, Rule 4, Code of Civil Procedure. The judgment referred by the learned counsel for the petitioner have distinguishable facts. The judgment referred by the learned counsel for the petitioner (2007 YLR 2941) and (1985 MLD 1255) shows that these were passed after recording evidence and question of Order VII, Rule 11 was not involved in these cases. Likewise in a judgment PLD 2006 Lahore 371 pertains to under Order VII, Rule 11, C.P.C., but in this case the jurisdiction of Civil Court arose was under challenge as the property subject matter of the suit was Evacuee property and declaration from the custodian to the effect that property in dispute is not an Evacuee property was required. In these cases the property was auctioned and the plaintiff was not in possession of property, so the Hon’ble Supreme Court of Pakistan has come to the conclusion that original order of auction was not challenged and as such the limitation was applicable. No doubt the limitation is a matter of statute and provisions of Limitation Act are mandatory but the question of limitation has to be decided according to the circumstances or each and every case. The judgment referred by the learned counsel for the petitioner (PLD 2006 Lahore 365) pertains to a suit for pre-emption.

 

8. In the present case the contents of plaint shows that particular of fraud has been given by the respondent when she states that her brother asked a loan of Rs.50,000 from her, she informed that she has no money then her brother asked her to raise loan from Agricultural Development Bank and then she signed blank papers. She further asserted in her plaint that she is in possession of property being the owner as co-sharer with his brother, the petitioner has even failed to allege in his written statement that he has purchased the land against consideration of Rs.7,000 which is mentioned in the plaint. No doubt Order VI, Rule 4 provides that the plaintiff is bound to give the particulars of fraud in his plaint, but the term particulars reference to the detail vary on case to case basis, it is also an established principle of law that parties to the suit cannot be ordered to reveal his evidence. Order VI, Rule 5 is enacted only for clarification of any ambiguity in the pleadings of the parties. The learned trial Court was if of the opinion that particulars of fraud arc not given in the plaint or some material facts are not clear and are ambiguous, the learned trial Court should ask the parties for a better statement under Order VI, Rule 5 instead of rejecting the plaint.

 

9. It is also an established principle of law that while deciding the application under Order VII, Rule 11, C.P.C. the Court has to see only the contents of plaint and even not the written statement and other material filed by the defendant/respondent. The learned appellate Court has rightly held that petitioner has filed the written statement and raised the objections which he has taken in his application under Order VII, Rule 11, C.P.C., the learned trial Court should have framed the issues and after recording the evidence should have decided the suit.

 

10. In view of above the impugned order does not suffer from any illegality or irregularity which can be interfered in the revisional jurisdiction of this Court. This petition fails and is dismissed.

 

M.U.Y./M-476/L Revision dismissed.

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