Mumtaz khanum vs.

Muhammad shareef

Present: Learned counsel for the plaintiff.

Learned counsel for the defendant No.2.
Order.
Arguments advanced by learned counsel for the parties

in application under Order 7 Rule 11 CPC have been heard and

available record has been perused. The main contention of the

petitioner/defendant No.2 is that plaintiff filed instant suit

regarding suit property and claimed herself owner of disputed

property as allegedly given by the defendant No.1 to her as Dower

(Haq Mehr) but prior to the instant suit, plaintiff filed another

suit for declaration on similar grounds and relief which have

been agitated in the instant plaint. As per version of the

petitioner/defendant No.2, said suit was dismissed for lack of

evidence on 10.01.2017. Copy of judgment and decree sheet is

annexed herewith. So, instant suit is hit by principle of

Resjudicata. Learned counsel for the plaintiff/respondent has

opposed the facts described by learned counsel for

petitioner/defendant No.2.

2. Arguments heard, record perused.

3. Record shows that previously plaintiff filed suit for

declaration against the defendant No.1 wherein version of the

plaintiff was that defendant No.1 gave the property in dispute to

the plaintiff as her Haq-ul-Mehr. Said suit of the plaintiff

remained pending wherein issues were framed and plaintiff was

directed to adduce evidence but plaintiff failed to adduce

evidence consequently the earlier suit of the plaintiff was

dismissed for want of evidence on 10.01.2017. Admittedly,

plaintiff has not preferred an appeal against the said order

hence said order has attained finality. In the instant case,

plaintiff has sought for the same relief against the defendant

No.1 and also sought for cancellation of registered sale deed in

favour of defendant No.2 which admittedly was alienated by

defendant No.1 in favour of defendant No.2. Instant suit against

the defendant No.1 has already been dismissed for non deposit of

process fee. Section 11 says:-

“No court shall try any suit or issue in which the matter
directly and substantially in issue has been directly and
substantially in issue in a former suit between the same parties
or between same parties under whom they or any of them claim,
litigating under the same title, in a court competent to try such
subsequent suit or the suit in which such issue has been
subsequently raised, and has been heard and finally decided by
such court.”
This suit is hit by the section 11 of CPC hence application

under order 7 Rule 11 is hereby accepted and plaint of the suit

is hereby rejected. Decree sheet be drawn accordingly. File be

consigned to record room after its due completion.

Announced. Masood Ahmad

10.11.2018 Civil Judge 1st Class,
Multan
Kamran Present: Learned counsel for the petitioner/defendant.
Order.
Today the case was fixed for arguments on application

under Order 7 Rule 11 filed by petitioner/defendant. It has been

maintained by learned counsel for the petitioner/defendant that a

suit regarding disputed Tamleek bearing No.1332/1 dated

09.02.1994 was filed which was decreed in favour of wife of

defendant/petitioner by Civil Court vide judgment dated

12.04.2001 and said disputed Tamleek was cancelled by the Learned

Court; that the order of court was also implemented in the

revenue record; that plaintiff has filed the instant suit on the

basis of said cancelled Tamleek Nama therefore instant suit being

barred by resjudicata is not maintainable in its present form

hence is liable to be dismissed. Petitioner/defendant has

submitted copy of judgment and decree dated 12.04.2001 and

finally prayed for acceptance of application.

2. On the other hand, right of plaintiff/respondent to

file written reply of application under order 7 Rule 11 CPC was

struck off vide order dated 30.10.2018 due to non submission of

reply within statutory period.

3. Arguments heard, record perused.

4. Perusal of record reveals that plaintiffs have claimed

themselves owner of the property in dispute through registered

Tamleek No.1332/1 dated 09.02.1994 and have challenged the

mutation of inheritance bearing No.42404 dated 31.01.2018. Copy

of the plaint of the suit titled “Mst.Mukhtar-Un-Nisa Vs.

Muhammad Shareef etc.” shows that mother of the plaintiffs namely

Mst.Mukhtiar-Un-Nisa challenged the impugned Tamleek through

filing suit in civil Court where upon the said suit was ex-parte

decreed on 22.04.2001 and decree sheet was also prepared. Decree

of the court has also been implemented in the revenue record and

after the death of mother of plaintiffs; the property has been

alienated through inheritance mutation to respective share

holders i.e plaintiffs and defendant. So said decree of the court

is in the way of the plaintiff to claim ownership on the basis of

said imuged Tamleek Nama in dispute. Plaintiffs cannot claim

themselves owner of suit property through said Tamleek without

setting aside decree of the court in accordance with law. Hence

the instant suit in its present form is not maintainable. The

said application in hand is hereby accepted and consequently suit

in hand is hereby dismissed. Decree sheet be drawn accordingly.

File be consigned to record room after its due completion.

Announced. Masood Ahmad

01.11.2018 Civil Judge 1st Class,
Multan
Muhammad Nadeem Bhatti
Present: Learned counsel for the parties.
Order.
Arguments on application under order 7 Rule 11 with
Section 10 and 151 CPC of learned counsel for the petitioner have
been heard. Learned counsel for the petitioner has sought
adjournment for arguments and for further extension in ad interim
injunction which has been restricted by defendants. Record shows
that before filing the instant case by the plaintiff, defendants
filed another suit for specific performance of agreement to sell
titled “Malik Altaf Hussain Vs. Allah Baksh etc” regarding
property in dispute and ad interim injunction was granted by the
court to the defendant No.1. plaintiff although having knowledge
of the said suit neither given note regarding pendency of the
suit nor pointed out to the court that regarding property in
dispute already ad interim injunction has been granted by the
court so plaintiff of instant case has made concealment in this
regard therefore the request of the plaintiff to extend the order
of ad interim injunction is hereby turned down. Written statement
and reply of application for temporary injunction be submitted by
defendants on 06.12.2018.

Announced. Masood Ahmad

07.11.2018 Civil Judge 1st Class,
Multan
Present: Learned counsel for the petitioner/defendant.
Order.
An application under Order 7 Rule 11 has been filed by
petitioner/defendant No.6. It has been maintained by learned
counsel for the petitioner/defendant No.6 that the plaint is
liable to be rejected for the reasons that necessary parties have
not been impleaded as parties in the instant suit; secondly,
regarding the disputed property already decree of partition had
been passed on 24.09.1975 hence instant suit is barred by
principle of Res-Judicata and lastly prayed for acceptance of
application.
2. On the other hand, application has been opposed by the
respondent/plaintiff through filing written reply with the
contention that petitioner/defendant No.6 has mentioned wrong
title of plaint; that instant application is false and frivolous
and result of connivance hence application under order 7 Rule 11
CPC same is liable to be dismissed.
3. Arguments heard, record perused.
4. Perusal of record reveals that plaintiff has sought for
decree of declaration, partition and mandatory injunction.
Admittedly plaintiff is sister of defendant No.1 to 5 and
daughter of one Taj Muhammad Deceased and has sought for
declaration and partition of the house No.3838 Ward No.8 Muslim.
In this regard, plaintiff has annexed copy of PT-1 Form with
plaint. According to which Taj Muhammad, Allah Ilahi, Rehmatullah
and Raheem Khatoon are shown as co-sharer of house No.3838-RH. It
is contention of the respondent/plaintiff in the suit that late
Rehmatullah, Mst.Ata Ilahi and Mst. Raheem Khatoon were issueless
and in their life time they orally gifted of their shares of suit
property in favour of late Taj Muhammad-predecessor in interest
of the plaintiff and defendant No.1 to 5. Plaintiff further
contended that defendant No.3 and 4 sold their shares of property
to plaintiff and they had also got recorded their statements in
this regard before the court whereas Ilahi Baksh s/o Habibullah
who was owner of half of the share of disputed house was
plaintiff’s husband who gave the said share of his property to
her in Haq Mehr. So, plaintiff has claimed her share of ownership
as 11/16 in the disputed property. Petitioner/defendant No.6 in
the instant application has not mentioned names of the persons
who have not been impleaded allegedly as party of instant suit by
the respondent/plaintiff whereas respondent/plaintiff has denied
the contention of the petitioner that there was no other proper
party who is not impleaded advertently. Contentions of the
petitioner to the extent of rejection of plaint due to non
joining of proper parties is hereby turned down. As far as second
ground of petitioner regarding res judicata is concerned,
plaintiff in the instant plaint has sought for three relieves i.e
declaration, partition and perpetual injunction. To the extent of
declaration plaintiff is required to prove the case through
evidence and if plaintiff would succeed to prove his prayer of
declaration then question of partition of the suit land to the
extent of share of the plaintiff i.e 11/16 would arise. According
to law about invoking provision of Order 7 Rule 11 CPC, court has
to see only contents of the plaintiff and even not the written
statement and other documents filed by defendants. Provision of
Order 7 Rule 11 cannot be invoked whether any of the claim in the
plaint discloses cause of action. The petitioner has submitted
copy of the decree sheet dated 24.09.1975, according to which the
property was distributed among Taj Muhammad, Rehmatullah, Ata
Ilahi and Raheem Khatoon but neither Ilahi Baksh who was sharer
of half of the disputed house was impleaded as party in the said
petition nor learned counsel for the petitner during the
arguments convinced the court that why said Ilahi Baksh was not
impleaded as the party in the first suit of partition. So in mix
question of law and fats involved in the instant case which
requires evidence and can be resolved after recording her
evidence, application in hand is hereby rejected.
5. In view of available record, following issues are
framed hereafter to resolve controversy between parties:-
Issues:-
1. Whether the plaintiff is entitled for decree of declaration
alongwith mandatory injunction as prayed for?
2. Whether the suit of plaintiff being baseless, concocted,
based on falsehood and against facts is liable to be
dismissed? OPD-6
3. Whether self proclaimed shares have been determined by
plaintiff? OPD-6
4. Whether plaintiff and defendant No.1 to 5 are entitled to
get inheritance to the extent of 03-Marlas respectively
share of predecessor of plaintiff and defendant No.1 to 5
out of total suit property? OPD-6
5. Whether plaintiff has committed concealment of facts
deliberately regarding determination of share of late Taj
Muhammad-predecessor of plaintiff and defendant No.1 to 5 in
suit decree dated 24.09.1975? OPD-6
6. Whether Ilahi Baksh S/o Habib-ullah husband of plaintiff has
no concern with suit property? OPD-6
7. Whether plaintiff has committed falsehood regarding
offspring of late Mst.Ata Ilahi and late Rehmatullah and
late Rahim Khatoon? OPD-6
8. Whether Habib-ullah father in law of plaintiff had no
concern with the suit property and only late Faiz Baksh was
owner of property measuring 09-Marlas? OPD-6

6. List of witnesses, documents relied upon and

certificate of readiness to produce the evidence be submitted
within seven days. To come up for evidence of plaintiff on
13.11.2018.

Announced. Masood Ahmad

20.10.2018 Civil Judge 1st Class,
Multan
Present: Learned counsel of Parties.
Order.

This order will decide application under Order 7 Rule

11 CPC read with 151 CPC submitted by defendants on the grounds

that plaintiffs have no cause of action or locus standi to file

instant suit, some of plaintiffs have instituted suit for

Declaration titled “Mohammad Ameen etc Vs. Mst. Malookaan etc” in

which application for interim injunction has been dismissed vide

order dated 23.11.2012 rendered by Hon’ble Mr. Justice Rauf Ahmad

Sheikh of the Hon’ble Lahore High Court Multan Bench Multan and

aforementioned suit has been dismissed for non prosecution and

application for restoration of same is pending adjudication.

Defendants further asserted that they/defendants have also

instituted a suit for Possession through partition regarding suit

property, suit in hand is hit by law of estoppel and resjudicata

and plaint is liable to be rejected under Order 7 Rule 11 CPC as

there is no legal and plausible justification to proceed with

suit in hand.

2. Plaintiffs/respondents submitted reply of application under

Order 7 Rule 11 CPC read with 151 CPC interalia on the

grounds that application is not proceedable, against facts

and has been instituted to harass and pressurize plaintiffs

and during pendency of litigation with regard to suit

property, defendants have executed registered power of

attorney in favour of defendant No.2 and 3 with regard to

suit property hence suit in hand has been instituted by

plaintiffs just to protect their valuable rights with regard

to suit property. Plaintiffs/respondents further contended

that between predecessors in interest of parties of instant

suit decision has been rendered through settlement, Mark-C,

vide order dated 07.09.1991 rendered by Mr. Arshad Mehmood

Cheema the then the learned Civil Judge Multan in suit

 titled “Malookaan Bibi etc Vs. Qadir Bakhsh etc” and

plaintiffs are in possession being owner of suit property on

the basis of aforementioned Mark-C and order dated

07.09.1991. Plaintiffs/respondents further contended that

they/plaintiffs have also instituted a suit titled “Mohammad

Ameen etc Vs. Mst Malookaan Bibi etc” in which defendants

have admitted Mark-C and order dated 07.09.1991 rendered in

suit titled “Mst. Malookaan Bibi etc Vs. Qadir Bakhsh etc”.

Plaintiffs/respondents further contended that during

pendency of suits, defendants have executed general power of

attorney and have alienated suit property through agreement

to sell and thereafter suit for specific performance of

agreement to sell was filed on the basis of aforementioned

agreement to sell and a decree of specific performance of

agreement to sell was obtained with the mutual connivance of

defendants. Plaintiffs asserted that plaintiffs have filed

an application under section 12 (2) CPC for suspension of

operation of decree rendered in aforementioned suit for

specific performance of agreement to sell and operation of

judgment and decree rendered in suit for specific

performance of agreement to sell has been suspended.

Plaintiffs/respondents denied the assertion of

defendants/petitioner and prayed for dismissal of

application under Order 7 Rule 11 CPC read with 151 CPC.

3. Arguments advanced by learned counsel of parties have been

heard and available record has been perused.

4. Bare reading of plaint discloses that plaintiffs through

suit in hand have prayed for decree of Declaration to the

affect that plaintiffs are owners in possession over the

suit property on the basis of settlement reached between

predecessors in interest of parties and order dated

07.09.1991 rendered in suit titled “Mst. Malookaan Bibi etc

 Vs. Qadir Bakhsh etc” and through permanent injunction have

prayed that defendants be restrained to interfere in

possession of plaintiffs over suit property and defendants

themselves or through their general power of attorney

holders/defendant No.2 and 3 be restrained to alienate suit

property.

5. The term “Cause of action” refers not only to infringement

of legal rights but also relates to the availability of

remedy for redress of infringed rights. In the presence

stance evidence is required to be recorded to determine the

existence of rights as alleged by plaintiffs as plaintiffs

and defendant No.1(i) to viii(g) are admittedly the

successors in interest of late Wahid Bakhsh and between

plaintiffs and defendant No.1(i) to viii(g) of instant suit,

suit for Declaration alongwith Permanent Injunction titled

“Mohammad Ameen etc Vs. Mst. Malookaan Bibi etc”, instituted

by plaintiffs of instant suit, with regard to same suit

property is also pending adjudication before the court of

undersigned. However suit for Partition titled “Mst. Ghulam

Fatima etc Vs. Qadir Bakhsh etc” instituted by defendants

has been dismissed as withdrawn on the basis of statement of

learned counsel of defendants recorded on 04.01.2018.

Principle of resjudicata is not applicable in the presence

stance as neither parties in aforementioned declaratory suit

and suit in hand are same nor lis has been finally

adjudicated. Application under Order 7 Rule 11 CPC does not

attract the grounds essential for rejection of plaint hence

application under Order 7 Rule 11 CPC is hereby dismissed.

Now to come up alongwith suit for Declaration and Permanent

Injunction titled “Mohammad Ameen etc Vs. Mst. Malookaan

Bibi etc” on 18.05.2018.

Announced: Hasan Iqbal,
15.05.2018 Civil Judge 1st Class,
Multan