Asfandyar Khan and another Vs Mardan Shah and others

IN THE PESHAWAR HIGH COURT, PESHAWAR

[JUDICIAL DEPARTMENT]

C.R. No.68-P/2022

Asfand Yar Khan and another..............Petitioners Vs

Mardan Shah and others.................Respondents Present: Mr. Amjad Hassan Tanoli, Advocate for the petitioners.

M/S Asad Nabi and Tajdar Faisal Khan, Advocates, for the respondents.

Date of hearing: 10.12.2025

JU D G M EN T

MUHAMMAD IJAZ KHAN, J.- Through this Civil Revision Petition, the petitioners have challenged the order and judgment of the learned Additional District Judge-VIII, Peshawar dated 15.12.2021, whereby the appeal filed by the respondent / plaintiff namely, Mardan Shah was allowed and thereby set aside an order of the learned trial court dated 28.06.2021, who vide the same had rejected the plaint of the respondent / plaintiff under Order VII Rule 11 CPC.

2.Precisely, the facts leading to the filing of this petition are that the respondent / plaintiff namely,

Mardan Shah filed a suit (appended with the petition at Page-169) for declaration to the effect that he is owner of suit Plot No. 168, Sector E-7 measuring 01 kanal situated at Phase-7 Hayatabad, Peshawar as well as for specific performance of the contract agreement dated 07.11.1992 and cancellation of fake and fabricated power of attorney and other ancillary relief. When the aforesaid suit was filed, the present petitioner then defendant No.8 namely, Asfandyar Khan submitted an application under Order VII Rule 11 CPC for the rejection of the plaint, which application after due contest was allowed by the learned trial court vide order dated 28.06.2021, whereby the plaint filed by the present respondent / plaintiff was rejected. The respondent / plaintiff considering himself aggrieved from the said order filed an appeal before the learned Additional District Judge-VIII, Peshawar which was allowed vide order and judgment dated 15.12.2021, whereby the said order was set aside and the case was remanded back to the learned trial court for decision afresh. Being aggrieved of the same, petitioners / defendants have filed the instant revision petition.

3.Detail arguments of learned counsel for the parties were heard and record perused with their able assistance.

4.In order to comprehensively address that as to whether the present plaint could be proceeded or not, it would be relevant to mention here the background of this case which is as under:-

(i)Initially the subject plot was allotted to the respondent / plaintiff in the year, 1997, later on, the respondent No. 3 herein then plaintiff namely, Abdul Rafiq brought a suit No. 268/I instituted on 11.10.1999 against the respondent / plaintiff namely, Mardan Shah for specific performance of an agreement dated 18.09.1996 with respect to the subject Plot No. 168 which suit was ultimately decreed vide judgment and decree dated 02.05.2000 which judgment and decree has not been challenged by the respondent / plaintiff till date and thus it has attained finality.

(ii)After twelve (12) years of the aforesaid judgment and decree dated 02.05.2000, the respondent / plaintiff namely, Mardan Shah brought a suit on 28.09.2012 for declaration to the effect that he is owner of the suit Plot No. 168 as well as for

issuance of permanent injunction, however, the said suit was dismissed in default on 10.10.2013, when on the date fixed none of the parties were present. The record further shows that it was after thirteen (13) months i.e. on 10.11.2014 when respondent / plaintiff filed an application for restoration of the said suit, however, the said application was dismissed by the learned trial court vide order dated 11.03.2015 on the ground of limitation. Against the aforesaid order, the respondent / plaintiff filed an appeal, but the same was also dismissed vide order dated 11.12.2015, which orders have attained finality as these orders have also not been challenged before any higher forum till date.

(iii)The record further shows that after waiting for four (04) years, respondent / plaintiff instead of restoring the aforesaid suit of 2012 again filed another suit on 12.09.2019 with respect to the same plot i.e. Plot No. 168 for declaration as well as for specific performance of an agreement dated 07.11.1992, and for cancellation of a power of attorney etc. in which the present petitioner namely, Asfand Yar Khan was not arrayed as a party, but the said plaint was also rejected by the learned trial court

on 18.06.2020 on the basis of an application filed by the defendants under Order VII Rule 11 CPC.

(iv)After a year, the respondent / plaintiff filed yet another i.e. third suit on 02.12.2020 with respect to the same plot i.e. Plot No. 168, in which the present petitioner was not arrayed, however, thereafter respondent / plaintiff namely, Mardan Shah filed an amended plaint where the present petitioner was arrayed as defendant No.8, when the petitioner then defendant No.8 was summoned, he submitted his written statement and also submitted an application under Order VII Rule 11 CPC for the rejection of the plaint, which application after due contest was allowed by the learned trial court vide order dated 28.06.2021, whereby the plaint filed by the present respondent / plaintiff was rejected. The respondent / plaintiff considering himself aggrieved from the said order filed an appeal before the learned Additional District-VIII, Peshawar which was allowed vide order and judgment dated 15.12.2021, whereby the said order was set aside and the case was remanded back to the learned trial court for recording of the evidence. Being aggrieved of the same, petitioners / defendants have filed the instant revision petition.

With this background of the case, this Court would now proceed.

5.In view of the above, what could be gathered from the above mentioned facts and circumstances is that in all the aforesaid four suits, the subject matter is one and the same i.e. Plot No. 168, Sector E-7 measuring 01 kanal situated at Phase-7 Hayatabad, Peshawar and there are successive judgments and a decree in the field firstly a judgment and decree dated 02.05.2000 against the present respondent / plaintiff passed in suit No. 268/I filed by Muhammad Rafiq, the said judgment and decree has never been challenged by the respondent / plaintiff before any fora, therefore, the said judgment and decree has since been attained finality as far as the rights of the respondent / plaintiff are concerned, secondly that respondent / plaintiff had filed a suit on 28.09.2012 (appended with the petition at Page-13) which was dismissed in default on 10.10.2013 and then a restoration application was filed but the same too has concurrently been dismissed by the trial court as well as by the revisional court, thirdly that another suit was filed by the respondent / plaintiff namely, Mardan Shah on 12.09.2019 for declaration as well

as for specific performance of an agreement dated 07.11.1992, however, the said plaint was rejected under Order VII Rule 11 CPC vide order and judgment dated 18.06.2020 and as per subsection (2) of Section 2 of The Code of Civil Procedure, 1908, such rejection of plaint would operate as a decree and fourthly now the present respondent / plaintiff has filed the instant plaint on 02.12.2020 which on the face of record could not be proceeded on the ground that on one hand none of the aforesaid facts qua the filing of three suits with respect to the same plot No.

168 have been disclosed by the respondent / plaintiff in his plaint, and thus there is an active concealment of facts on the part of respondent / plaintiff and on the other, the subject matter of all the aforesaid three suits is one and the same i.e. Plot No. 168, Sector E-7 measuring 01 kanal situated at Phase-7 Hayatabad, Peshawar, therefore, on this score too, the plaint could not be proceeded as the same squarely hit by the provisions of Order II Rule 2, Section 11 and Section 12(1) and Order XI of The Code of Civil Procedure, 1908. In a case1 the Apex Court has held that the true test for application Order II, rule 2, Muhammad Chuttal .vs. Atta Muhammad through L.Rs (2007 SCMR 373)

C.P.C. in such cases is as to whether the claim in the subsequent suit in fact was founded upon the same cause of action or there was distinct cause of action to that of the former suit. There is no cavil to the proposition that on dismissal of suit in default, the plaintiff or his successor-in-interest may not be able to bring fresh suit on the same subject as the law does not permit repeated litigation on the same cause of action but the question relating to the bar of Order II, rule 2, C.P.C. must be examined in substance as the subsequent suit, may not be barred for mere reason that cause of action in two suits was founded to be the same rather it would depend upon the decision of question whether in a case in which the previous suit was decided on merit, the fresh suit would be barred by law or in all circumstances, the subsequent suit cannot proceed. The law is clear on the proposition that if the facts on the basis of which right is claimed by the plaintiff, are the same and infringement of such right by the defendant in the two suits has arisen out of the same transaction, the subsequent suit on the basis of same cause of action may not be competent and barred by the doctrine of res judicata, therefore, the assertion that so long title

of a person is denied and his ownership is repudiated, on every refusal of title a fresh cause of action would accrue in his favour may not be correct in the particular facts and circumstances of a case.

Similarly, this Court in a case2 has held that the bare reading of above quoted rule coupled with the story narrated by the plaintiffs in both the plaints, would absolutely make it manifest that the subsequent suit between the same parties, on the same cause of action, regarding the same subject matter, would not be maintainable particularly, when application for restoration of the previous suit and then appeal against the same has been dismissed by the proper forum. Law does not allow repetition of litigation, thus the legislature very wisely precluded the plaintiff from bringing a fresh suit in respect of the same cause of action, when the suit is dismissed.

Likewise, the Sindh High Court in a case3 has held that needless to mention that in Suit No. 103/1997 plaint was rejected under Order VII Rule 11 C.P.C.

and the order was never challenged by the respondents. They were dare enough to file the fourth suit on same cause of action in respect of the same Saif-ur-Rehman and 5 others .vs. Muhammad Saleem and 25 others (2017 CLC Note 43 [Peshawar]

Abdul Majid .vs. Dur Muhammad & ORs (2020 SHC 1499)

property and against the same parties. The trial court on hearing the parties reached to a lawful conclusion that the respondents have already exhausted their remedies rather over exhausted their remedies by filing four suits on the same cause and property.

6.During the course of arguments, learned counsel representing the respondent / plaintiff was confronted that on one hand, he is seeking a declaration of his right qua the suit plot and on the other, he has also prayed for specific performance of an agreement dated 07.11.1992 then whether the two reliefs could be reconciled and as such the instant plaint could be maintainable as it is established that a declaration could only be sought for pre-existing rights and it could not be filed for creating a right. In a case4 the Apex Court has held that through the Suit filed under section 42 of the Specific Relief Act, 1877 a declaration can be granted with regard to legal character or to right as to any property.

However, no new right can be created in favour of Plaintiff, by grant of a declaratory decree. Similarly, the Lahore High Court in in a case5 has held that a declaratory decree can be passed under section 42 of Abdul Razaq .vs. Abdul Ghafar and others (2020 SCMR 202) Arshad Ahmad alias M. Arshad and others .vs. Muhammad Yar and others (PLD 2012 Lahore 483)

the Specific Relief Act for declaring a pre-existing right. No new rights can be created, if the alleged gift deed was sufficient to transfer the rights in the immoveable property and the alleged donor was also alive and willing. What was the necessity to file a suit for declaration on the basis of alleged gift deed.

Certainly the alleged gift deed was not a document transferring the ownership rights in favour of donees.

Therefore, they were forced to file a declaratory suit and they tried to get their rights created in the suit property by the court through a declaratory decree for which I have already given the findings that a declaratory decree cannot create a new right. It just declares a pre-existing right. Likewise, the Lahore High Court in another case6 has held that in a suit for declaration the plaintiff is required to prove a case pleaded by him and he can get a decree with regard to a pre-existing right in his favour by proving his pleadings and his entitlement for the decree, through a declaratory decree a new right cannot be created.

7.Similarly, an agreement to sell does not confer any right of title, then seeking specific performance of an agreement would obviously mean that the title Province Of Punjab and others .vs. Zafar Ullah and others (PLD 2015 Lahore

of the respondent / plaintiff has not yet been matured, therefore, on this score too, the plaint being mutually destructive could not be proceeded as it has not been filed in a proper form. In a case7 the Apex Court has held that it is by now well-established that the remedy of specific performance is discretionary and cannot be claimed as of right by a party. Similarly, in a case8 the Sindh High Court has held that there is no cavil to this proposition that the agreement of sale does not create any title, therefore without determination of such title by the civil court the findings of the Rent Controller seems to be pre- mature as apparently it seems to have resulted in miscarriage of justice.

8.As far as the question of limitation is concerned, the same too goes a long way against the respondent / plaintiff as even the instant suit for declaration, if for the purpose of discussion is supposed to be maintainable then the limitation period for a suit for declaration is six years under Article 120 of The Limitation Act, 1908, whereas for a suit for specific performance, it is three years which would start against the respondent / plaintiff from the date Muhammad Riaz Hussain .vs. Zahoor Ul Hassan (2021 SCMR 431) Akhlaque Khan .vs. Muhammad Javaid Shaikh and 2 others (2014 CLC 492 [Sindh])

of allotment of suit plot in the year, 1997, therefore, the suit was hopelessly time barred and as such was liable to rejection on this score as well. The Lahore High Court in a case9 has held that the petitioners / plaintiffs themselves had earlier filed a suit on the same lines, but then same was dismissed as withdrawn with permission to file afresh and thereafter a second suit was filed which was also dismissed due to non-appearance of the parties. Then the suit in hand was filed by the present petitioners/plaintiffs on 20.6.1993 whereas in the earlier suit they claimed that cause of action had accrued to them on 20.7.1978. I am of the firm view that once a limitation starts running, no subsequent event can stop the same and it depends upon the maxim that law favours the vigilants and not the indolents. The said view is fortified by the dictum laid down in the judgments reported as Noor Akbar through Attorney v. Allah Yar and 7 others (2008 YLR 854), Muhammad Islam v. Inspector General of Police, Islamabad and others (2011 SCMR 8) and Muhammad Rustam and another v. Mst. Makhan Jan and others (2013 SCMR 299). It has further Allah Wasaya and 7 others .vs. Mst. Bakhi alias Bakho Mai through L.Rs and others (2016 CLC Note 121 [Lahore])

been held in the ibid judgment that it is settled principle that civil law is a law of omissions and commissions and the parties are bound by their acts performed before the courts of law during the judicial proceedings. It cannot be left at the choice of the parties to select the time for filing their lis, but the law has to take its course according to the schedule framed by it. The rights accrued in favour of the rival party cannot be taken away unless sufficient cause is shown for filing the suit beyond limitation, but in the present case it is proved on record that knowingly the third suit was filed after the expiry of limitation provided by law and there was no justification to condone the same. The suit filed by petitioners was not only hopelessly time barred, but the same was also not maintainable, which was rightly dismissed.

9.In view of the above discussion and exposition of law on the subject, this Revision Petition is allowed, the impugned order and judgment of the learned Additional District Judge-VIII, Peshawar dated 15.12.2021 is set aside and as a result thereof the order of the learned trial court dated 28.06.2021 is restored and consequently the plaint filed by the

respondent / plaintiff is rejected and the office is directed to prepare the requisite decree sheet in this regard.

Announced 10.12.2025 Sd/-

JUDGE

(S.B) Hon’ble Mr. Justice Muhammad Ijaz Khan Noor Shah