Ghulam Ahmad Sofi & Ors vs Syed Manzoor Shah & Anr

Rajnesh Oswal, J

01/ This revision petition has been preferred against order dated 24-10-2017, passed by the learned Sub Judge, Pattan (hereinafter trial Court), in a Suit titled Syed Manzoor Shah & another versus Ghulam Ahmad Sofi & others, by virtue of which, the trial Court has decided the preliminary issue No.3 in favour of the defendants. The said order has been impugned on the ground that the respondents had concealed the material facts from the Court and as such the Suit was required to be dismissed but the trial Court has wrongly decided the issue No.3.

02/ Mr. Syed Manzoor, learned counsel for the petitioner, vehemently argued that the respondents have concealed the material facts from the Court with regard to the fact that they had earlier also filed a similar Suit and the trial Court has wrongly decided issue No.3 and rather the plaint was required to be rejected for concealing the material facts from the Court. He also laid stress that the trial Court has wrongly mentioned in the order that the earlier Suit was filed by another person, namely Syed Afzal Shah, whereas fact remains that the said person is plaintiff No.2 in the Suit. Mr. Tasaduq, learned counsel, appearing for the respondents, vehemently argued that the trial Court has rightly passed the impugned order and there is no illegality in deciding the issue No.3 in favour of the respondents.

03/ Heard and perused the record.

04/ The facts necessary for disposal of the present petition are that the respondents had filed a Suit before the trial Court for grant of following reliefs :

“i) A decree of declaration, declaring the plaintiffs entitled to the easementary right of way through the land of the respondents, proceeding the land of the plaintiffs from the road side falling under survey No. 122 as warranted by the sale deed dated 21-05-1974 and used by them from time immemorial ;

ii) A decree of permanent injunction, thereby permanently restraining the defendants from trying to raise any obstruction in the use of the pathway by the plaintiffs, through the land falling survey No. 212 ;

iii) A decree of mandatory injunction, commanding the defendants to remove the obstructions in the form of barbed wire fencing raised by them around the land and leave open the pathway of the plaintiffs and allow them to have free access to their landed property.”

05/ The respondents filed their response to the said Suit in which it was stated that no cause of action has accrued to the plaintiffs against the defendants and as the said Suit was required to be dismissed in terms of Order 7 Rule 11 CPC and further that the Suit of the plaintiffs was liable to be dismissed as they have not come to the Court with clean hands and have deliberately suppressed the facts that prior to the instant Suit, they had earlier also filed a Suit titled Syed Afzal Shah & another versus Mohammad Maqbool Sofi on similar facts and the said Suit was dismissed for non prosecution vide order dated 04-07-2016. On the basis of pleadings of the parties the trial Court framed the following issues :

“a) whether plaintiffs along with the defendants are entitled to use common pathway mentioned in the sale deed dated 19-11-1973. OPP ;

b) Whether plaintiffs are entitled to use land of the defendants as pathway as there exists no pathway except land of the defendants. OPD ;

c) Whether the suit is not maintainable as no cause of action has accrued to the plaintiffs as such the suit is liable to be rejected under Order 7 rule 11 CPC, OPD ;

d) Relief to what extent parties are entitled to.OPP/OPD.”

06/ The issue No.3 was treated as preliminary issue. Perusal of the order impugned further reveals that the Suit has been filed by the respondents in which it was pleaded that cause of action accrued to the respondents few days back when they, with the help of their hoodlums, raised obstructions in the pathway of the plaintiffs. On the basis of specific averments made in the pleadings, it cannot be said that the plaintiffs have no cause of action to file the said Suit and the contention of the petitioners that the plaintiffs have not approached the Court with clean hands, cannot be considered at this stage as the same is a disputed question of fact and can be considered at the time of final adjudication by the trial Court.

07/ The trial Court has committed an error of fact while referring that the earlier Suit was instituted by another person – Syed Afzal Shah, whereas the fact remains that the said person figures as plaintiff No.2 in the Suit filed by the respondents. However, this wrong fact recorded by the trial Court would not affect the merits of the decision of issue No.3.

08/ Viewed thus, there is no merit in the present petition, it is, accordingly, dismissed along with connected CMs.