Bakht Zada VS Shah Tamash etc

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

MINGORA BENCH (DAR-UL-QAZA), SWAT

(Judicial Department)

W.P. No. 185-M/2011

JUDGMENT

Date of hearing: 19-11-2015

Petitioner By: Mr. Gauhar Ali Khan Advocate Respondents By: Mr. Razaullah Khan Advocate MUHAMMAD DAUD KHAN, J.- Through the instant writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, Bakht Zada, the petitioner, has impugned the judgment dated 15-09-2011 rendered by learned Izafi Zilla Qazi-II, Swat, whereby the revision petition filed against the order dated 09- 06-2011 passed by learned Illaqa Qazi-XV, Swat was allowed and as a consequence thereof the plaint of petitioner was rejected under Order 7 Rule 11 CPC.

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2.We have heard arguments of the learned counsel for the parties and gone through the record appended with the petition.

3.It appears from the record available on file that firstly respondent # 1 Shah Tamash Khan filed a suit for possession through preemption wherein on the basis of sale mutation No. 1912 attested on 27-08-2010, land measuring 03 Kanals 18 Marlas (out of 08 Kanals 06 Marlas) bearing Khasra No. 1314, situated in the local limits of Moza Dakorak was purchased by respondents # 1 to 7 for an ostensible amount of Rs 3,100,000/-.

This sale was preempted by Shah Tamash Khan through the above suit claiming his superior right of preemption on all the three grounds allowed by law and giving the sale consideration as sum of Rs: 1,500,000/- or whatever amount is determined by the Court.

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4.In the meanwhile, respondents/vendees # 2 to 5 admitted the right of preemption of Shah Tamash Khan (Respondent # 1) and were entered into a compromise, delivered to him possession of their 39 shares in the preempted property by receiving their sale consideration.

5.The present petitioner Bakht Zada Khan on 27-01-2011 filed a suit against Shah Tamash Khan and respondents # 2 to 5 for possession through preemption to the extent of that 39 shares mentioned in mutation # 1912 attested on 27-08- 2010 which was given to the respondent # 1 by respondents # 2 to 5 through a compromise dated 09-10-2010. This compromise was preempted by Bakht Zada Khan petitioner through the above suit claiming his superior right of preemption and giving the sale consideration as sum of Rs: 1,327,000/-.

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6.When put on notice by the learned lower Court, the defendant # 1, which is respondent # 1 in the instant writ petition, filed his written statement along with an application for outright rejection of the petitioner’s plaint for the reasons that he respondent # 1 didn’t purchase the preempted property rather they (respondents) were entered into a compromise. The learned trial Court dismissed the said application vide its order dated 09-06-2011 mainly on the ground that petitioner ã

had got cause of action, which was impugned by the respondent # 1 in the Court of Izafi Zilla Qazi by filing a revision petition. The learned revisional forum vide its judgment dated 15-09-2011 by allowing the revision petition, set aside the impugned order and as such the plaint of petitioner was rejected under Order 7 Rule 11 CPC. Now the petitioner has impugned the order Nasir

of the revisional forum in this Court by filing the instant writ petition.

7.While going through the record

appended with the petition, one could reach to an irresistible conclusion that respondent # 1 has filed a suit for possession through preemption against other respondents and petitioner wherein respondents # 2 to 5 admitted his right of preemption and were entered into written compromise and also delivered possession of their ã

39 shares in the preempted property by receiving their sale consideration. This compromise was preempted by Bakht Zada Khan petitioner claiming his superior right of preemption.

8.It is crystal clear from the record available that during the pendency of the suit of respondent # 1, petitioner filed the instant suit for possession through preemption on the basis of the above compromise and the present petitioner was Nasir

also defendant in the suit of respondent # 1, then how petitioner can file a fresh suit and preempt the said property mentioned in the suit of respondent # 1? Therefore, suffice to say that respondent # 1 got the said 39 shares of the preempted property on the basis of compromise and not by any kind of sale. Moreover, on the basis of mutation # 1912 petitioner become the owner of preempted property and respondents # 1 challenged that mutation in his earlier preemption suit, therefore, ã

petitioner cannot file any further preemption suit on the basis of that preempted title. Keeping in view these facts the suit filed by petitioner is clearly hit by Order 7 Rule 11 CPC and his suit was clearly barred by law and the plaint was liable to outright rejection, which has rightly been done by the learned Izafi Zila Qazi through impugned judgment.

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9.It may not be out of place to observe that there is a growing tendency that even after final adjudication of the matter, parties indulge in abuse of the process of law by way of frivolous, repetitive and fraudulent litigation. An onerous duty is cast on those charged with the difficult task of administering justice to take effective measures against the obstinate litigants and their lawyers.

10.The prime object and purpose of

establishment of Courts is to dispense justice to ã

the parties before it in accordance with law and discourage repetitive litigation. The philosophy behind the provisions of Order VII, Rule 11 CPC i.e. rejection of the plaint at the initial stage, is based on the concept "nipping the evil in the bud before it surfaces". For the application of this golden rule, guiding principles have been laid down by the Courts from time to time. False and repetitive litigation undoubtedly need to be curbed Nasir

and stringent measures should be taken by the courts at all levels.

11.It is the duty of court and requirement of law to burry such incompetent suits at its inception and infancy. Reliance is placed on 1998 CLC 382, PLD 2002 Karachi 502 and 2004 CLC 1312. Similarly such power of rejection of plaint can be exercised by court at any stage suo moto even at the stage of deciding an interlocutory matter. Reliance is placed on PLD 1984 Lahore ã

59 and 1992 CLC 2282.

12.In view of the above, finding no merits and substance in the petition under consideration, it is hereby dismissed.

Announced.

Dt: 19-11-2015 JUDGE

JUDGE

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