2007 S C M R 741

[Supreme Court of Pakistan]

Present: Javed Iqbal and Ch. Ijaz Ahmed, JJ

Raja ALI SHAN—-Petitioner

Versus

Messrs ESSEM HOTEL LIMITED and others—-Respondents

Civil Petition No.2193 of 2004, decided on 7th December, 2006.

(On appeal from the judgment, dated 24-6-2004 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi in Civil Revision No.76 of 2003).

(a) Shamilat Deh—

—-Land situated in—Such land reserved by inhabitants of village as graveyard—Effect—Graveyard would .mean a place for interment of dead bodies—Such land, once reserved for graveyard, would not remain property of any individual.

Stockton v. Weber ILR 98 Cal. 433 ref.

(b) Specific Relief Act (I of 1877)—

—-Ss. 42 & 54—Civil Procedure Code (V of 1908), O.I, R.8 & O.VII, R.11—Land Acquisition Act (I of 1894), S.4—Suit for declaration and permanent injunction—Acquisition of land in Shamilat Deh reserved for graveyard—Suit by plaintiff not in his personal capacity, but in representative capacity for declaring such land to be exempt from acquisition—Rejection of plaint for non-maintainability of suit—Validity—Suit-land was not owned by plaintiff or his ancestors—Suit¬land once reserved for graveyard by inhabitants of village would not remain property of any individual—Suit was not maintainable in view of parameters prescribed under O.I, R.8, C.P.C.

—-O. I, R.8—Representative suit, filing of—Essential conditions stated.

Order I, rule 8, C.P.C., formulates an exception to the general principle that all persons interested in a suit shall be parties thereof.

In order to file a representative suit, these conditions must be fulfilled: Persons interested in the suit must be numerous; they all must have the same interest in the suit; permission of Court under O.I, rule 8, C.P.C. shall be obtained; and notice must be given to all the persons whom it is sought to represent.

Islam-ud-Din’s case PLD 2004 SCMR 633; Haji Saleh Muhammad’s case 1983 SCMR 587; Gulla Mir’s case PLD 1982 SC 120; Kumaravelu Chettiar’s case AIR 1933 PC 183 and The State of Andhra Pradesh v. Gundugola Venkata Suryanarayana Garu AIR 1965 SC 11 rel.

(d) Words and phrases—

—-“Graveyard”—Meaning—Graveyard means a place for interment of dead bodies.

Islam-ud-Din’s case PLD 2004 SCMR 633 and Gulla Mirs’ case PLD 1982 SC 120 rel.

(e) Interpretation of documents—

—-Document must be read as a whole.

PLD 1957 SC (Pak.) 219 and Safiuddin Kazi’s case PLD 1960 Dacca 555 rel.

(f) Precedent—

—-Each case must depend upon its own facts.

Kailash Pat’s case (50) AA 405 rel.

(g) Civil Procedure Code (V of 1908)—

—-O. VII, R.11—Rejection of plaint—Incompetent suit—Court not only empowered, but under obligation to reject plaint in such suit even without any application from a party—Principles.

In view of Order VII, rule 11, C.P.C., it is the duty of the Court to reject the plaint, if on a perusal thereto; it appears that the suit is incompetent. The parties to the suit are at liberty to draw courts’ attention to the same by way of an application. The court can, and in most cases hears counsel on the point involved in the application, meaning thereby that the court is not only empowered, but under obligation to reject the plaint, even without any application from a party, if the same is hit by any of the clauses mentioned under Rule 11 of Order VII, C.P.C.

(h) Constitution of Pakistan, 1973—

—-Art. 185—Jurisdiction of Supreme Court under Art.185 of the Constitutional—Discretionary in character—He who seeks equity must come with clean hands.

(i) Equity—

—-He who seeks equity must come with clean hands.

(j) Specific Relief Act (I of 1877)—

—-Ss. 42 & 54—Civil Procedure Code (V of 1908), O.VII, R.11–Constitution of Pakistan (1973), Arts.185 & 199—Suit for declaration and permanent injunction—Filing of constitutional petition during pendency of suit on same subject-matter and cause of action—Withdrawal of suit during pendency of constitutional petition—Filing of second suit after dismissal of constitutional petition—Rejection of plaint in second suit for being incompetent by courts below and High Court–Validity-Jurisdiction of Supreme Court under Art.185 of the Constitution is discretionary in character—He who seeks equity must come with clean hands—Supreme Court, in view of such conduct of plaintiff, declined to exercise discretion in his favour and dismissed his petition.

Khawaja Muhammad Sharif’s case PLD 1988 Lah. 725 and Haji Muhammad Saifullah Khan’s case PLD 1989 SC 166 ref.

Muhammad Ilyas Sheikh, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Petitioner.

Zulfiqar Khalid Maluka, Advocate Supreme Court for Respondents Nos.1 and 2.

Arif Chaudhry, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Respondent No.3.

Date of hearing: 7th December, 2006.

JUDGMENT

CH. IJAZ AHMED, J.— The petitioner has sought leave to appeal against the judgment of the Lahore High Court, dated 24-6-2004 wherein revision petition filed by the petitioner before the High Court was dismissed.

2. Necessary facts out of which the present petition arises are that petitioner is resident of village Bartamah. The inhabitants of the village in question have total land measuring 326 Acres, 5 Kanals and 3 Marlas out of the said land, Capital Development Authority had acquired land measuring 206 Acres, 6 Kanals and 19 Marlas. The land measuring 10 Kanals, 16 Marlas being Shamlaat Deh land being meant for graveyard of the village was exempted from acquisition. The exempted area is situated in Khasra Nos.59/1/91 and 90 of Khewat No.52/150 and Khewat No.9 respectively. The petitioner filed suit for declaration with permanent injunction against the respondents in the Court of Civil Judge Islamabad on 12-12-1995. The contents of the plaint reveal that the petitioner claimed that he and his ancestors were old residents of the revenue estate Bartamah along with rights in the Shamlaat Deh specifically reference was made to the land measuring 10 Kanals, 16 Marlas which was not acquired by the Capital Development Authority. The contents of the plaint further reveal that the said land be excluded from acquisition proceedings as it consisted of a graveyard and Khangah. The trial Court rejected the plaint under order VII, rule 11, C.P.C. as barred by time. Petitioner being aggrieved tiled appeal before the District Judge who accepted the same vide order, dated .18-2-1.996 and remanded the case to the trial Court to decide the case afresh on merits in accordance with law. During the pendency of the said suit petitioner filed Writ Petition No.490 of 1996 with the prayer that the land in question be excluded froth the acquisition proceedings. The petitioner had withdrawn the said suit during the pendency of the writ petition as evident from order dated 10-6-1996. Writ petition was also dismissed vide order, dated 16-7-1996. Thereafter petitioner filed I.C.A. No.33 of 1996 which was also dismissed on 18-8-1996. The petitioner had not challenged the aforesaid orders passed by the learned High Court and filed a second suit for declaration and permanent injunction before the Civil Judge, Islamabad on 12-12-1996. Respondents filed application under Order VII, rule 11, C.P.C. before the trial Court. The learned trial Court after receiving the reply from the petitioner framed 7 issues, thereafter rejected the plaint vide judgment dated 12-3-2001. Petitioner being aggrieved filed appeal in the Court of District Judge which was also dismissed vide judgment and decreed dated 22-10-2002. Petitioner being aggrieved filed Civil Revision No.76 of 2003 before the learned High Court, Rawalpindi Bench. Respondents Nos.1 and 2 had also filed Writ Petition No.138 of 2000 as the land in question was allotted to respondents Nos.1 and 2 by respondent No.3. The learned High Court decided the said revision petition and constitutional petition vide impugned consolidated judgment, dated 24-6-2004. The revision petition of the petitioner was dismissed as mentioned above. Hence, this petition.

3. The learned counsel for the petitioner submits that learned High Court had accepted the application of the respondents under Order VII, rule 11, C.P.C. and rejected the plaint of the petitioner on the following grounds:

(i) The suit is not maintainable in view of Order XXIII, rule 3, C.P.C.

(ii) Suit is not maintainable in view of Order I, rule 8 C.P.C. which was upheld by the First Appellate Court.

4. The learned High Court had dismissed the revision petition only on the ground that petitioner has filed suit is repugnant to the provisions of Order I, rule 8, C.P.C. and the suit in its present form for declaration and permanent injunction was not maintainable. He further maintains that learned High Court had erred in law to non-suit the petitioner in violation of the law laid down by the superior Courts. In support of his contention, he relied upon Islam-ud-Din’s case PLD 2004 SCMR 633 and Haji Saleh Muhammad’s ease 1983 SCMR 587. He further submits that learned High Court had erred in law to non-suit the petitioner. without adverting to the contents of the plaint specially paras.3 and 4 wherein the petitioner had agitated his personal grievance, therefore, his suit was competently filed and provisions of Order I, rule 8, C.P.C. are not attracted. He further submits that learned High Court had erred in law to non-suit the petitioner without adverting to the provisions of Order VII, rule 11, C.P.C. in case the petitioner has filed suit in the representative capacity without completing the formalities prescribed under Order I, rule 8, C.P.C. He further maintains that learned High Court has non-suited the petitioners without adverting to the Order I, rule 9, C.P.C. The trial Court has not adopted proper procedure and after framing the issues did not allow the parties to adduce evidence and this aspect of the case was not considered by the learned High Court in its true perspective.

5. The learned counsel for the respondents Nos.1 and 2 submits that the petitioner filed suit for declaration with permanent injunction on 12-12-1995 which was dismissed as withdrawn on 10-6-1996 as the petitioner during the pendency of that suit filed Constitutional Petition No.490 of 1996 which was dismissed on 16-7-1996 and thereafter petitioner filed Intra-Court Appeal which was also dismissed and thereafter petitioner had filed second suit for declaration and permanent injunction on 12-12-1996 merely on the observation that the learned High Court had dismissed his constitutional petition on the ground that disputed questions of fact could not be adjudicated upon in constitutional proceedings. The best course for the petitioner is to approach the Civil Court of preliminary jurisdiction for the determination of his right, if any. The learned High Court had not allowed him to file a suit for declaration in violation of the mandatory provisions of C.P.C. He further maintains that learned High Court had dismissed the revision petition in view of provisions of Order I, rule 8, C.P.C. This petition is also liable to be dismissed in view of the conduct of the petitioner and in view of Order XXIII, C.P.C.

6. The learned counsel appearing on behalf of C.D.A. has also adopted the arguments advanced by the learned counsel for the respondents Nos.1 and 2 and further submits that petitioner had filed a suit in representative capacity as evident from the contents of the paragraphs Nos.2, 3, 4 and 10 of the plaint.

7. We have considered the submissions made by counsel for the parties and perused the record. It is better, and appropriate to reproduce the relevant paragraphs of the plaint to resolve the controversy between the parties:

“Briefly the facts are that the petitioner Messrs Essem Hotels (Pvt.) Limited was allotted a plot for the construction of Five Star Hotel in Islamabad by the Capital Development Authority/respondent. The C.D.A. raised a demand in respect of the payment of outstanding premium/dues amounting to Rs.13,99,88,230.38 along with the delayed payment charges worked out till 15-11-1997. It was stipulated that in the event of failure to comply with the same, the allotment of the plot made in favour of the petitioner shall stand cancelled.

The petitioner filed Writ Petition No.2816 of 1997 to challenge the said act of the C.D.A. The said writ petition was decided by this Court vide judgment dated 24-4-1998 whereby it was found that as the plot allotted to the petitioner was subject-matter of litigation since 1991 and as the respondent failed to deliver the possession of the plot to the petitioner with a clear title and free of encroachments, the delay in the payment of premium by the petitioner was neither contumacious nor deliberate. It was held that the imposition of delayed payment charges was without lawful authority and was of no legal effect. It was consequently directed that petitioner shall deposit the balance of the premium amount in six equal instalments of Rs.1,77,53,121.33 each with a further direction to deposit the first instalment within a week of the said order and the remaining instalments in the next 15 months. The respondents were to deliver the actual physical possession of the plot clear of all encroachments immediately upon the deposit of the first instalment.

Against this judgment, the C.D.A./respondent tiled CPLA No.887 of 1998 against the petitioner while the petitioner also filed CPLA No.933 of 1998. The Supreme Court refused to grant leave to appeal in CPLA No.887 of 1998, CPLA No.933 of 1998 was also dismissed as not pressed with the result that the judgment of this Court passed in Writ Petition No.2816 of 1997 attained finality.

It is not denied that the first instalment was paid by the petitioner through bank drafts dated 28-4-1998 and 29-4-1998 respectively.

The case of the petitioner is. that the C.D.A. was not able to hand over clear title and possession of the entire plot to the petitioner for the reason that one Raja Ali Shan had commenced litigation in relation to a portion of the plot in question by filing a civil’ suit. On account of this disability of the C.D.A. to comply with the orders of this Court passed in the aforementioned writ petition, it became impossible for the petitioner to fulfil its corresponding obligation of the payment of the instalments. It was contended that till such time that the litigation brought by the aforesaid Raja Ali Shah did not conclude in favour of the C.D.A., the petitioner should not be coerced to make the payment of the remaining premium to the C.D.A. At this juncture, it is necessary to refer to the suits filed by Raja Ali Shan tiled against the petitioner and the C.D.A. respectively.

While the said suit was still pending, the plaintiff Raja Ali Shan filed Writ Petition No.490 of 1996 wherein the same land measuring 10 Kanals, 10 Marlas was sought to be excluded from the acquisition proceedings. Raja Ali Shan withdrew the said suit on 10-6-1996 in view of the pendency of the writ petition.”

8. Mere reading of the aforesaid paragraphs of the plaint, it is crystal clear that petitioner solely is not owner of the land in question nor his ancestors as the land in question is situated in Shamlaat Deh which is owned by each and every owner of the village for establishing the graveyard. It is a settled law that the following conditions must be fulfilled in order to institute a representative suit. See Gulla Mirs’ case PLD 1982 SC 120, Kumaravelu Chettiar’s case AIR 1933 PC 183:–

(a) Persons interested in the suit must be numerous.

(b) They all must have the same interest in the suit.

(d) Notice must be given to all the persons whom .it is sought to represent.

(e) Indian Supreme Court while interpreting Order I, rule 8, C.P.C. in the State of Andhra Pradesh v. Gundugola Venkata Suryanarayana Garu AIR 1965 SC 11 laid down the following principle:–

“To enable a person to file a suit in a representative capacity for and on behalf of numerous persons where they have the same interest, the only condition is the permission of the Court”.

Graveyard means a place for the interment of dead bodies. See Stockton v. Weber ILR 98 Cal. 433. The aforesaid definition of the word graveyard shows once a land is reserved by the inhabitant of the village then it does not remain property of any individual. Therefore, all the Courts below were justified that suit was not maintainable in view of parameters prescribed by the Legislature under Order I, rule 8, C.P.C.

9. It is admitted fact that petitioner has filed suit without fulfilling the requirement prescribed under Order I, rule 8, C.P.C. In view of the contents of the plaint this suit was filed by the petitioner in representative capacity. It is a settled interpretation of law that documents must be read as a whole as the law laid down by this Court in the matter of reference by the President of Pakistan under Article 162 of the Constitution of Islamic Republic of Pakistan PLD 1957 SC (Pak.) 219 and Safiuddin Kazi’s case PLD 1960 Dacca 555. In case the plaint be read as a whole there is only one conclusion that the petitioner has filed suit in a representative capacity and not in his individual capacity, therefore, learned High Court was justified to come to the conclusion that the Courts below were justified to reject the plaint of the petitioner under Order VII, rule 11, C.P..C., therefore, judgments cited by the learned counsel for the petitioner are distinguished on facts and law. The learned High Court was justified to uphold the orders of the Courts below. It is pertinent to mention here that Privy Council considered the question of representation under Order I, rule, 8, C.P.C. at length and it was observed; “Order I, rule 8, C.P.C. formulates an exception to the general principle that all persons interested in a suit shall be parties thereof”. Sec Kumaravelu Chettiar’s case AIR 1933 PC 183. In the present case it was not disclosed by the petitioner that this suit is being filed in his personal capacity in view, of the aforesaid contents of the plaint, therefore, learned High Court was justified to hold that suit was not maintainable and had given finding of fact on the basis of the available record as evident from paragraphs 20 to 23 of the impugned judgment. Therefore, judgments relied by the learned counsel for the petitioner are distinguished on facts and law on the well known principle that each case must depend upon its own facts. See Kalash Pat’s case (50) A.A. 405. As evident from the operative parts of the cited judgments. The relevant portions are as under:–

“It is submitted before us that the respondents/plaintiffs had tiled a suit in representative capacity under Order I, rule 8, C.P.C. but procedure laid down therein was not followed, therefore, the suit should be deemed to be on behalf of respondents/plaintiffs in their individual capacity. It is not possible for us to accept this assertion of the appellants in view of the consent of the Advocate-General, in favour of respondents/ plaintiffs to institute a suit. Even otherwise, there is’ no bar upon an individual to institute a suit for a right existing in his favour in respect of the cases pertaining to public nuisance without obtaining consent of the Advocate-General therefore, non-following the procedure under Order I, rule 8, C.P.C. would not be fatal in given circumstances of the case.

Besides it, in view of the findings of the High Court namely “in case of public nuisance and. private nuisance, injury to the property and to a person would confer jurisdiction upon the Court except that in the case of public nuisance, consent of Advocate-General as required under section 91, C.P.C. would be necessary under the law, while in case of private nuisance no such consent would be required but the relief for filing a suit for injunction and damages would be available in both kinds of nuisance” the objection being raised on behalf of appellants has no substance. PLD 2004 SC 633.

The argument based on the provisions of Order I, rule 8 Code of Civil Procedure may next be disposed of which was not very seriously pressed before us. The contention that since the interest of the whole tribe was involved in the controversy being the subject-matter of the proceedings before the High Court, it was incumbent upon the High Court to adopt the procedure provided for in Order I, rule 8, C.P.C. is wholly untenable. The provisions of rule 8 are only enabling and permissive in nature and it is not mandatory that wherever there are several persons interested in a suit or proceeding it should be instituted in representative capacity. Such view has been taken in a number of reported cases including Rangal Shah v. Mula Jadal (1), in which it was held that if a person has a right to action, he can proceed independently of the other who may be having a common cause of action with him, and he does not at all stand in need of including others Or to prefer a representative suit. No exception can be taken to this view. Article 199 of the Constitution provides special remedy to an aggrieved party against the specified, persons therein in respect of inter alia, any act done or proceeding’ taken within the jurisdiction of the concerned High Court, and such an aggrieved person is under no obligation to implead in the proceedings others having a common cause of action with him. The contention has, therefore, no substance.” 1983 SCMR 587.

10. It is pertinent to mention here that in view of the Order VII, rule 11, C.P.C. it is the duty of the Court to reject the plaint if, on a perusal thereto, it appears that the suit is incompetent, the parties to the suit are at liberty to draw Courts’ attention to the same by way of an application. The Court can, and, in most cases hear counsel on the point involved in the application meaning thereby that the Court is not only empowered but under obligation to reject the plaint, even without any application from a party, if the same is hit by any of the clauses mentioned under rule 11 of Order VII, C.P.C. Undoubtedly in the case in hand, the respondent is seeking the order of the rejection of the plaint by invoking the aforesaid provisions of law. It is a settled law that constitutional jurisdiction is discretionary in character. He who seeks equity must come with clean hands. This Court does not, normally, exercise discretion in view of the conduct of the petitioner. The detailed facts have already mentioned hereinabove that petitioner had filed suit for declaration with permanent injunction against the respondent. During the pendency of the suit petitioner filed constitutional petition on the same subject-matter and cause of action. His suit was dismissed as withdrawn during the pendency of his constitutional petition. The constitutional petition was dismissed. Thereafter the petitioner filed second suit out of which the present controversy arises. The conduct of the petitioner is such that we are not inclined to exercise discretion in his favour as law laid down by this Court in various pronouncements. See Khawaja Muhammad Sharif’s case PLD 1988 Lah. 725 and Haji Muhammad Saifullah Khan’s case PLD 1989 SC 166.

11. In view of what has been discussed above, this petition has no merit and the same is dismissed. Leave refused.

S.A.K. /A-2/SC Leave refused.