CASE LAW IN ASSIGNMENT

2019 Y L R 874
[Sindh]
Before Muhammad Ali Mazhar and Agha Faisal, JJ
IMRAN MODI---Petitioner
Versus
MIZHAR UDDIN (FEROOQUI) and 2 others---Respondents
High Court Appeal No.165 of 2017, decided on 24th July, 2018.
Specific Relief Act (I of 1877)---
----S. 12---Civil Procedure Code (V of 1908), O.VII, R. 11---High Court appeal---Rejection of plaint---
Violation of interim order---Effect---Cause of action---Stages---Plaintiff was aggrieved of order passed by
Single Judge of High Court whereby his plaint was rejected for non-compliance of interim order---
Validity---Failure of plaintiff to honor interim order could not lead to rejection of plaint specially when
said order stood recalled by the court---When hearing injunction application all material available on
record could be evaluated but in determination of whether a plaint was liable to be rejected, only plaint
and its accompaniments were required to be examined---Where plaint disclosed a cause of action when
suit was filed, same could not be returned solely on grounds that said cause of action was lost during
pendency of proceedings---Division Bench of High Court set aside order passed by the Single Judge of
High Court---High Court Appeal was allowed accordingly.
Al Meezan Investment Management Company Limited and others v. WAPDA First Sukuk Company
Limited and others PLD 2017 SC 1; Haji Abdul Karim and others v. Messrs Florida Builders (Pvt.) Ltd.
PLD 2012 SC 247; Jewan and others v. Federation of Pakistan and others 1994 SCMR 826 and Khan
Muhammad and others v. Ghulam Rasool and others PLD 1987 Lah. 71 rel.
Aamer Nawaz Warriach for Appellant.
Ahmed Jawaid for Respondent No.1.
Date of hearing: 21st May, 2018.
JUDGMENT
AGHA FAISAL, J.---This question sought to be addressed herein is whether in the present facts and
circumstances a plaint could be rejected under Order VII, Rule 11, C.P.C. on the ratiocination that the
cause of action was lost during the pendency of the proceedings.
2. The brief facts in respect hereof are delineated in chorological order herein below:--
i. The Appellant had filed a Suit No.111 of 2016 ("Suit") seeking specific performance of an agreement of
sale with respect to property, being House bearing No.A-1, Block-13, Gulshan-e-Iqbal, Karachi
("Property").
ii. The Appellant preferred an interlocutory application seeking to restrain the Respondent from inter alia
dealing with the property and the same was granted vide order dated 05.06.2015 ("Interim Order"). It may
be pertinent to reproduce the relevant content of the aforesaid Interim Order:
"It is the case of the plaintiff that defendant No.1 entered into an agreement of sale dated 01.03.2015 with
him, whereby he agreed to sell his property (the suit property); namely, House No.A-1, Block-13,
Gulshan-e-Iqbal, Karachi, to the plaintiff in consideration of Rs.17,400,000.00, and the plaintiff agreed to
purchase the same from defendant No.1 for the said price. As per clause 2 of the agreement, the balance
sale consideration was to be paid by the plaintiff to defendant No.1 within 75 days from the date of
signing of the agreement with a grace period of 15 days, the total whereof comes to 90 days from the date
of agreement. The agreed period of 90 days was due to expire on 30.05.2015, but defendant No.1 sent a
legal notice dated 19.05.2015 to the plaintiff claiming that the plaintiff was required to pay the entire
balance sale consideration to him within 75 days. Through his legal notice, the sale agreement has been
purportedly cancelled by defendant No.1 by alleging that the payment has not been made by the plaintiff
within the agreed period. It is urged that the legal notice is misconceived and mala fide as the same was
issued by defendant No.1 before the expiration of the mutually agreed date. It is further urged that the
plaintiff never refused to pay the balance sale consideration and he has always been and is still ready and
willing to perform his agreed part of the contract. Learned counsel points out that defendant No.1 has
admitted in his legal notice that a sum of Rs.18,00,000.00 has been received by him from the plaintiff in
pursuance of the sale agreement. He states that the plaintiff is willing to deposit the entire balance sale
consideration of Rs.15,600,000.00 with the Nazir of this Court within ten (10) days from today.
Issue notice to the defendants as well as to the learned Advocate General Sindh. Subject to deposit of the
entire balance sale consideration of Rs.15,600,000.00 (Rupees fifteen million six hundred thousand only)
by the plaintiff with the Nazir of this Court within ten (10) days from today, defendant No.1 is restrained
till the next date of hearing from selling, transferring or alienating the suit property, and/or from creating
any type of third party interest therein."
iii. The time granted to the Appellant to deposit the stipulated sale consideration ("Sale Considera-tion")
in Court, vide the Interim Order, was extended, at the request of the Appellant, vide order dated
15.06.2015.
iv. The Sale Consideration was never deposited by the Appellant and instead thereof the Appellant
preferred an application to recall the Interim Order, being C.M.A. No.18582 of 2015 ("Recall
Application"). In the said application it was submitted that the Appellant's counsel had unauthorizedly
stated before the Court that the Appellant was ready to deposit the Sale Consideration.
v. The Recall Application was allowed by the Court, vide order dated 13.01.2016, and as a consequence
thereof the interlocutory injunction application, filed by present Appellant with respect to the Property,
was also recalled / dismissed.
vi. The Respondent No.1 herein, being the defendant No.1 in the Suit, preferred an application under
Order VII Rule 11, C.P.C. and prayed as follows:
"For the facts and reasons disclosed in accompanying affidavit on behalf of the Defendant No.1 that this
Honorable Court may be pleased to reject the plaint of the plaintiff, as after executing agreement to sell
plaintiff has become dishonest and during entire period of the agreement to sell plaintiff brought so many
parties for the purpose of sell out the said property to third party, as well as this Honorable Court was
pleased to pass the order dated 15.06.2015, that the plaintiff may deposit the remaining balance before the
Nazir of the Court, but the plaintiff with mala fide intention and ulterior motives failed to do so, hence
this application."
vii. The aforesaid application was heard and decided vide order dated 20.02.2017 ("Impugned Order"),
whereby the learned Single Judge was pleased to allow the said application and dismiss the Suit while
holding inter alia as follows:
"It appears that there is no cause of action left in this Suit, therefore, the Plaint is hereby rejected under
Order VII, Rule 11, C.P.C. by allowing this Application."
(Underline added for emphasis.)
3. Learned counsel for the Appellant submitted that the Impugned Order is contrary to the law as non-
deposit of the Sale Consideration would at best disentitle the Appellant to interim relief and that the same
could not be made the ground for dismissal of the entire Suit itself.
4. It was next contended that the Appellant had pay orders issued in the quantum of the requisite Sale
Consideration and that the same belied the contention that the Appellant was unwilling to honor his part
of the bargain. It was thus contended that the Impugned Order is without justification and not in
conformity with the law and, therefore, liable to be set aside.
5. In response thereto, it was contended by the learned counsel for Respondent No.1 that the Impugned
Order is in due consonance of law and in addition thereto falls squarely within the required parameters of
administration of justice. Per learned counsel, the entire case of the Appellant was that while he was able
and willing to perform his part of the agreement for sale in respect of the Property, and that he was being
denied benefit of the agreement by the present Respondent.
6. It was contended that it is prima facie apparent that the Appellant was unable to deposit the Sale
Consideration within the stipulated time or thereafter. It was submitted that this contention was duly
demonstrated by the conduct of the present Appellant in the Suit proceedings and also by a perusal of the
content of the Recall Application. It was the contention of the learned counsel that the present appeal has
been filed with mala fide intention of keeping the Property mired in controversy and unjustifiable
litigation and that the same cannot be sanctioned by this Court.
7. This Court has considered the arguments of the respective learned counsel and reviewed the record
available. It appears that the controversy to determine before this Court is whether the learned Single
Judge was justified in rejecting the plaint in the Suit on the ground that the cause of action had been lost
during the pendency of the proceedings, as the Appellant had admittedly failed to deposit the requisite
Sale Consideration.
8. The premise of the Appellant, in the Suit, was that he was always ready and willing to pay the Sale
Consideration in respect of the Property in the manner outlined in the agreement for sale and that the Suit
was filed to compel the present Respondent to adhere to the requirements of the agreement for sale and
convey the Property to the Appellant against receipt of the agreed Sale Consideration. The record of the
Suit reflects that Sale Consideration was not deposited in Court by the Appellant despite the order of the
Court and that the same was not done, even though the timeframe for the deposit was graciously extended
by the Court.
9. The unwillingness of the Appellant to deposit Sale Consideration is compounded his expressed
inability to pay the same, as was manifest from the narrative contained in the Recall Application. The
purported copies of pay orders referred to by the Appellant, available at pages 79 till 89 of this Court's
file, demonstrate that the same are dated 22.05.2015 and it is also noted thereon that the same are valid for
a period of six months from the date of issue. It is an admitted fact that no amount was ever deposited by
the Appellant and even if these pay orders were genuine and in fact obtained by the Appellant to settle the
requisite Sale Consideration, it is a matter of record that they were never delivered to either the Court or
the Respondent herein.
10. The plea sought to be raised, by virtue of demonstrating the pay orders, is that the Appellant was
perhaps able and willing to pay the Sale Consideration, however, the said contention is entirely
contradicted by the Recall Application wherein it has been clearly stated that the Appellant is unwilling /
unable to deposit requisite amount in the Court.
11. A perusal of the prayer clause of the plaint filed in the Suit demonstrates that the Appellant's claim
seeks enforcement of an agreement for sale with respect to the Property and that there was also a
disjunctive claim for compensation, for avoiding the completion of the agreement.
12. While it was the duty of the Court to safeguard the interests of all parties, including the Respondent
No. 1 herein, it was to be considered whether the plaint could be rejected under Order VII, Rule 11,
C.P.C. on account of the default of the Appellant to comply with the directives rendered by the Court
while dealing with an interim injunction application, especially in view of the factum that the same
directives stood recalled by the learned Single Judge as a consequence of allowing the Recall Application.
13. Order VII, Rule 11, C.P.C. inter alia provides for the rejection of a plaint where it does not disclose a
cause of action. It is pertinent to highlight that the non-disclosure of a cause of action is required to be
apparent from the plaint itself. In the present case it cannot be said that no cause of action was disclosed
in the plaint and the disentitlement of the Appellant to perpetuate his claim for specific performance was
adjudged by the learned Single Judge on the basis of events that transpired after presentation of the plaint.
14. It has been held by the honorable Supreme Court, in the case of Al Meezan Investment Management
Company Limited and others v. WAPDA First Sukuk Company Limited and others reported as PLD 2017
Supreme Court 1, that the question of whether a suit was maintainable or not was moot with respect to
whether or not the plaint was liable to be rejected. It was maintained that it could well be the case that a
plaint could not have been rejected in terms of Order VII, Rule 11, C.P.C. but the suit was dismissed
eventually for a host of reasons.
15. The development of the contemporary law with regard to Order VII Rule 11, C.P.C. was discussed in
progressive detail by the honorable Supreme Court of Pakistan, in the case of Haji Abdul Karim and
others v. Messrs Florida Builders (Pvt.) Ltd. reported as PLD 2012 Supreme Court 247, and the guiding
principles gleaned through the exhaustive process were illuminated as follows:-
"11. We now need to examine the grounds on the basis of which a plaint is to be rejected. There is a
considerable amount of case-law on the point. This covers a wide spectrum with, on the one hand,
emphasis being placed on the primacy of the statements in the plaint to the exclusion of everything else
and, on the other hand, to include a perusal not merely of the plaint but also the documents attached
therewith and, stretching the point even further, the other clear and obvious material on the record. The
following are some of the important judgments on the point:---
(i) In the case of Haji Allah Bakhsh v. Abdul Rehman and others (1995 SCMR 459) it was observed that
the averments contained in the plaint are presumed to be correct.
(ii) In the case of Anees Haider and others v. Amir Haider and others (2008 SCMR 236) the court
reiterated the principle that no reliance could be placed on the written statement.
(iii) The case of Saleem Malik v. Pakistan Cricket Board (PLD 2008 SC 650) is a little different to
reconcile with the overwhelming weight of authority since that observation in this case was "that the
court, may in exceptional circumstances, consider the legal objection in the light of averment of the
written statement but the pleading as a whole cannot be taken into consideration for rejection of plaint
under Order VII, Rule 11, C.P.C.". It is a little difficult to construe what the above observation means and
perhaps the dictum contained herein should be confined and limited to the facts of this case alone.
(iv) In the case, of Siddique Khan and 2 others v. Abdul Shakoor Khan and another (PLD 1984 SC 289) it
was observed that Order VII, Rule 11 in a way is a penal provision to be strictly construed. However, this
finding pertains to clause (c) of Order VII, Rule 11 alone which provides that a plaint is to be rejected
only after the grant of the requisite time if the plaintiff has failed to pay the court fee. This case is thus not
relevant or material for our purposes.
(v) In the case of Muhammad Saleem and others v. Additional District Judge, Gujranwala (PLD 2006 SC
511) it was observed that Order VII, Rule 11 contemplates the rejection of a plaint only on the basis of
averments made in the plaint and the pleas raised in the written statement are not to be considered. It was
also observed that the court was entitled to rely on the documents annexed to the plaint.
(vi) In the case of S.M. Shafi Ahmed Zaidi v. Malik Hasan Ali Khan (2002 SCMR 338) the following
finding was rendered:
"Besides, averments made in the plaint other material available on record which on its own strength is
legally sufficient to completely refute the claim of the plaintiff, can also be looked into for the purpose of
rejection of plaint. It does not necessarily mean that the other material shall be taken as conclusive proof
of the facts stated therein, but it actually moderates that other material on its own intrinsic value be
considered along with the averments made in the plaint. "It was further observed that "It is the
requirement of law that incompetent suit shall be buried at its inception. It is in the interest of the
litigation party and judicial system itself. The parties are saved with their time and unnecessary expenses
and the courts gets more time to devote it for the genuine causes.
(vii) In the case of Pakistan Agricultural Storage and Services Corporation Limited v. Mian Abdul Lateef
and others PLD 2008 SC 371 it was held that the object of Order VII, Rule 11, C.P.C. was primarily to
save the parties from the rigours of frivolous litigation at the very inception of the proceedings.
(viii) In the case of Salamat Ali v. Khairuddin 2007 YLR 2453 it was observed that although the
proposition that a court while rejecting the claim under Order VII, Rule 11, C.P.C. could only examine
the contents of the plaint, was correct nevertheless, this rule should not be applied mechanically.
(ix) In the case of Arif Majeed Malik and others v. Board of Governors Karachi Grammar School (2004
CLC 1029) it was noted that the traditional view was that in order to reject a plaint under Order VII, Rule
11 only the contents of the plaint were to be looked into. It was added, however, that this view had since
been modified to the extent that an undisputed document placed on record could also be looked into for
the aforesaid purposed.
(x) In the case of Halima Tahir and 5 others v. Naheed and others (2004 MLD 227) it was held that in
deciding a case under Order VII, Rule 11 only the averments in the plaint are to be considered.
(xi) In the case of Ghulam Dastagir and others v. Mariyum and others (1993 MLD 1005) the point was
reiterated and it was added that the allegations in the plaint have to be accepted as correct.
(xii) Additional High Court judgments which do not add anything further to what has been contained
hereinabove are contained in the cases reported in 1981 CLC 1009, 2006 CLC 919, 2006 CLC 303, 1981
CLC 533, PLD 1981 Karachi 604, PLD 1978 Karachi 267 and therefore need not be examined any
further.
12. After considering the ratio decidendi in the above cases, and bearing in mind the importance of Order
VII, Rule 11, we think it may be helpful to formulate the guidelines for the interpretation thereof so as to
facilitate the task of courts in construing the same.
Firstly, there can be little doubt that primacy, (but not necessarily exclusivity) is to be given to the
contents of the plaint. However, this does not mean that the court is obligated to accept each and every
averment contained therein as being true. Indeed, the language of Order VII, Rule 11 contains no such
provision that the plaint must be deemed to contain the whole truth and nothing but the truth. On the
contrary, it leaves the power of the court, which is inherent in every court of justice and equity to decide
or not a suit is barred by any law for the time being in force completely intact. The only requirement is
that the court must examine the statements in the plaint prior to taking a decision.
Secondly, it is also equally clear, by necessary inference, that the contents of the written statement are not
to be examined and put in juxtaposition with the plaint in order to determine whether the averments of the
plaint are correct or incorrect. In other words the court is not to decide whether the plaint is right or the
written statement is right. That is an exercise which can only be carried out if a suit is to proceed in the
normal course and after the recording of evidence. In Order VII, Rule 11 cases the question is not the
credibility of the plaintiff versus the defendant. It is something completely different, namely, does the
plaint appear to be barred by law.
Thirdly, and it is important to stress this point, in carrying out an analysis of the averments contained in
the plaint the court is not denuded of its normal judicial power. It is not obligated to accept as correct any
manifestly self-contradictory or wholly absurd statements. The court has been given wide powers under
the relevant provisions of the Qanun-e-Shahadat. It has a judicial discretion and it is also entitled to make
the presumptions set out, for example in Article 129 which enable it to presume the existence of certain
facts. It follows from the above, therefore, that if an averment contained in the plaint is to be rejected,
perhaps on the basis of the documents appended to the plaint, or the admitted documents, or the position
which is beyond any doubt, this exercise has to be carried out not on the basis of the denials contained in
the written statement which are not relevant, but in exercise of the judicial power of appraisal of the
plaint."
16. Upon examination of the plaint filed in the Suit upon the anvil of the principles laid down by the
honorable Supreme Court it is found that the same could not be deemed to have failed to disclose a cause
of action.
17. With utmost respect, we are also unable to concur with the finding of the learned Single Judge that
failure of the Appellant to honor the Interim Order would lead to the rejection of the plaint, especially
when the same order stood recalled by the Court, as when hearing an injunction application all the
material available on record may be evaluated but in the determination of whether a plaint was liable to be
rejected only the plaint and its accompaniments were required to be examined. Reliance is placed in such
regard on the judgment in the case of Jewan and others v. Federation of Pakistan and others reported as
1994 SCMR 826.
18. It is the considered view of this Court that where the plaint disclosed a cause of action when the suit
was filed, the same could not be returned solely on the grounds that the same cause of action was lost
during the pendency of the proceedings. A similar view was taken by the honorable Lahore High Court in
the case of Khan Muhammad and others v. Ghulam Rasool and others reported as PLD 1987 Lahore 71.
19. Even if the learned Single Judge was of the opinion that the Appellant had forgone his claim to seek
enforcement of the agreement with respect to the Property, the Appellant remained at liberty to agitate his
claim for compensation, which claim was required to be determined by leading evidence in accordance
with the law.
20. In view of the rationale and reasoning herein contained the present High Court Appeal is hereby
disposed of in terms delineated herein below:--
i. The Impugned Order for the rejection of the plaint is set aside with the direction to the learned Single
Judge to decide the Suit on merit.
ii. It is clarified that no interim injunctive orders, with regards to the Property or otherwise, are in the field
in the Suit as the injunction application was dismissed by the learned Single Judge with the directions for
issuance of summons, vide the Order dated 13.01.2016, while allowing the Recall Application preferred
by the Appellant, and the said position remains intact as of date.
MH/I-35/Sindh Order accordingly.
CASE LAW IN FAVOUR OF JUDGEMENT
CASE NO.1:
2010 C L C 1603

[Karachi]
Before Muhammad Ali Mazhar, J
MUHAMMAD SHABBIR---Plaintiff
Versus
Mrs. FARAHA BIBI and 2 others ---Defendants
Suit No.216 of 2007, C.M.A. No.10934 of 2009, decided on 3rd August, 2010.
(a) Specific Relief Act (I of 1877)---
----Ss.12, 8 & 54---Civil Procedure Code (V of 1908), O. VII, R.11---Suit for specific performance of sale
agreement, possession and permanent injunction---Execution of sale agreement and two receipts of
payment through Pay Orders by defendant in favour of plaintiff---Refection of plaint, application for---
Defendant's plea that suit agreement was cancelled with mutual consent and amount paid to defendant
through Pay Orders was adjusted towards purchase of other property by plaintiff, thus, he had no cause of
action---Validity---Execution of two receipts and receipt of Pay Orders by defendant from plaintiff gave
him a cause of action for filing suit---Court without recording evidence could not give positive findings
that suit was barred by law; and that alleged novation of contract had taken place---Plaint showed
plausible cause of action against defendant, thus, question as to whether plaintiff would be able to prove
same would become irrelevant---Court at such stage could not base its decision on data provided by
defendant-Such application was dismissed in circumstances.
Ume Aiman and others v. Muhammad Yousuf and others 2002 CLC 1629; Muhammad Sharif v. Mst Faji
and others 1996 CLC 883; Mst Khatoon Begum v. Barkatunnisa. Begum PLD 1987 Kar. 132 and Raja
Muhammad Younis Khan v. Bagga Khan and others 2003 YLR 2797 ref.
Haji Mitha Khan v. Muhammad Younus and others 1991 SCMR 2030; Mrs. Anis Haider and others v. S.
Amir Haider and others 2008 SCMR 236; Haji Allah Bakhsh v. Abdul Rehman and others 1995 SCMR
459; Abdul Rahman v. Wahid Bakhsh PLD 1977 Lah. 1243; Ghulam Ali v. Asmatullah 1990 SCMR
1630 and Jewan V. Federation of Pakistan 1994 SCMR 826 rel.
(b) Civil Procedure Code (V of 1908)---
----O. VII, R.11(a)---Rejection of plaint---Scope---When plaint disclosed a cause of action, then question
as to whether plaintiff would be able to prove the same would become irrelevant---Court at such stage
could not base its decision on data provided by defendant.
(c) Specific Relief Act (I of 1877)---
----S.12---Court Fees Act (VII of 1870), S.17 & Sched. I, Art. 1---Civil Procedure Code (V of 1908), O.
VII, R.11---Application of S.17, Court Fees Act, 1870---Scope---Suit for specific performance of sale
agreement mentioned two properties---Plaint showing payment of maximum court fee thereon by
plaintiff---Rejection of plaint, application for---Defendant's plea that plaintiff claiming specific
performance of two different properties was liable to pay separate court fee thereon---Validity---
Applicability of provisions of S.17 of Court Fees Act, 1870 confined to a suit containing multifarious
causes of action and different reliefs claimed in plaint for purposes of ad valorem court fee in vogue prior
to fixation of maximum limit of court fee for plaint---Maximum court fee had been affixed on plaint
against valuation of suit, thus, provision of S.17 of Court Fees Act, 1870 would not apply to the present
case---Such application was dismissed in circumstances.
Aslam Industries Ltd. v. Pakistan Edible Corporation of Pakistan and others 1993 SCMR 683 fol.
M.A. Khan for Plaintiff.
Imtiaz Ali for Defendants.
ORDER
MUHAMMAD ALI MAZHAR, J.---The defendants Nos.1 and 2, have brought this application under
Order VII, rule 11, C.P.C. for rejection of plaint on the following grounds:--
(1) That the suit is not maintainable and liable to be rejected as filed by the plaintiff on the false and fake
grounds which does not show any solid reasons.
(2) That the plaintiff has not come with clean hands before the honourable Court.
(3) That the suit is barred by sections 28 and 56 Specific Relief Act and section 17 of Court Fees Act.
(4) That the plaintiff has no power to file the said suit for specific performance of contract, permanent
injunction as he is not a vendee of the sale agreement dated 22-2-2006 and the above suit is liable to be
rejected with costs under Order VII, rule 11, C.P.C.
In support of the application, the defendant No.2 has filed his affidavit and stated that the instant suit has
been filed against the defendants just to misguide this court and the plaintiff has no right to file the suit as
the subject sale agreement dated 22-2-2006 has been executed between Farah Bibi defendant No.1 and
one Muhammad Tayyab, thus the plaintiff has no concern with this agreement. Further more the said
agreement has been cancelled and the amount paid by Muhammad Tayyab has been adjusted as part
payment in respect of agricultural land. The plaintiff had failed to make balance sale consideration of the
above sale agreement within one month hence the amount was forfeited. In sale agreement dated 18-5-
2006, it was decided between both the parties that the agreement. dated 22-2-2006 stands cancelled and
there is no further dues against the vendor. Since the above agreement had already been cancelled the
plaintiff has no right to file the suit for specific performance of contract.
The plaintiff has filed objections to the application and relied upon the contents of the plaint and stated
that the case is one of specific performance, permanent injunction and possession against the receipt of
consideration by the defendants. The introductory description of the plaintiff as incorporated in paragraph
2 of the plaint clearly transpires that the plaintiff is nominee of the person entered into an agreement of
sale dated 22-2-2006. The receipts of payment of Rs.15,50,000 and Rs.2,25,000 annexures H-1 & H-2 to
the plaint were duly executed by the defendant No.1 and witnessed by the very same person who had
entered into the initial agreement on behalf of plaintiff.
I have heard the learned counsel for the parties and perused the material available on record as well as
gone through the case-law relied upon by the learned counsel represented the parties. The learned counsel
for the defendants Nos.1 and 2 argued that the suit is barred under sections 48 and 56 of the Specific
Relief Act and section 17 of Court Fees Act. The learned counsel argued that the plaintiff has no authority
to institute the suit but at the same time he laid much emphasis that the agreement dated 26-2-2006 was
cancelled in lieu of agreement dated 18-5-2006, which was entered into between the defendant No.1 and
the plaintiff himself and the amount which was paid by Muhammad Tayyab, had been adjusted as part
payment in respect of agricultural land measuring 40 acres at Deh Okar and 40 acres at Deh Robar in
District Gwadar, Tehsil Jiwani for a total sale consideration of Rs. 1,60,00,000. In order to prove_ the
contention, the learned counsel also invited the attention of this Court to annexure P/1 attached to the
supporting affidavit of the application moved under Order VII, Rule 11, C.P.C. So far as the legal
provisions are concerned, section 48 of the Specific Relief Act has no applicability in the present
proceedings and so far as section 56 in concerned, it can only be considered keeping in view the contents
of the plaint and unless the entire contents of the plaint are not thrashed out, no positive finding can be
given whether section 56 is applicable in the 'facts and circumstances of the case or not. In addition to
above, learned counsel further relied upon section 17 of the Court Fees Act, which relates to the
multifarious suits and according to him the plaintiff has claimed specific performance of two different
properties, therefore, separate Court Fees should have been paid or affixed on the plaint. Learned counsel
further argued that by execution of subsequent agreement between defendant No.1 and the plaintiff, the
earlier agreement was superseded and in fact it is the case of novation of contract. The learned counsel in
support of the arguments relied upon the following judgments:--
(1) Ume Aiman and others v. Muhammad Yousuf and others 2002 CLC 1629. This judgment has been
relied upon in the context that while deciding the application under Order VII, rule 11, C.P.C., this court
may also look into the contents of the Written Statement/affidavits, in appropriate cases. In the present
case, the application was filed on the ground that the matter involved in the present controversy has
already been resolved earlier between the same parties, therefore the suit was hit by principle of res
juducata. The learned Single Judge of this Court has observed that ingredients of section 11, C.P.C. are
not attracted to the fats of the matter as the parties have never litigated in any adverse capacity previously
other than in RA No.52 of 1974 for the first time in October, 1984 which in any event did not result in
any final adjudication of their rights and obligations. In this case, the application was dismissed, however
the learned Single Judge has observed that there is no cavil to the settled law that in appropriate cases,
even the contents of Written Statement/affidavits may be looked into while considering application under
Order VII, rule 11, C.P.C.
(2) Muhammad Sharif v. Mst. Faji and others 1996 CLC 883. In this judgment, the learned Single Judge
of Lahore High Court has observed that terms of agreement clearly stated that on failure of plaintiff to
perform his part of contract, earnest amount paid by him would stand forfeited. First Appellate Court had
rightly found that time was essence of contract and plaintiff had failed to perform his part of contract.
Judgment and decree rendered by First Appellate Court was affirmed while that of trial Court decreeing
plaintiff's suit was set aside in circumstances.
(3) Mst Khatoon Begum v. Barkatunnisa Begum PLD 1987 Kar. 132. This judgment relates to section 62
of the Contract Act which provides that substitution of a new contract is the core of novation. Its essential
feature is that a rights under the original contract is extinguished and new rights referable to new contract
are created. The substituted contract therefore, must be a valid and enforceable contract to be effective as
novation. If the new agreement or contract suffers from legal flaw such as want of registration, stamps
etc., on account of which it becomes unenforceable, the original contract will not be extinguished and the
rights and liabilities of the parties will be determined on that basis.
In response to the arguments advanced by the learned counsel for the defendants No.1 and 2, the learned
counsel for the plaintiff argued that the plaintiff has perfectly disclosed the cause of action in the plaint in
sequence and from a bare look of the contents of the plaint, it is manifestly clear that the plaintiff has a
cause of action against the defendants and for the purposes of the decision under Order VII, rule 11,
C.P.C., it is well-settled and old age golden principle that only the contents of the plaint may be looked
into without any extraneous consideration and even, the court may not see the Written
Statement/affidavits etc. filed by the defendants. The learned counsel further argued that the plaintiff has
without any concealment or suppression clearly disclosed that he was the nominee of Muhammad
Tayyab, who signed agreement with the defendant No.1 for the land situated at Deh Gujro, KDA Scheme
No.33 and residential House No.R-23 measuring 120 sq. yds. situated at Pioneer Fountain, KDA Scheme
No.33, Karachi. He admits that though initial agreement was signed between Mrs. Farah Bibi and Mr.
Muhammad Tayyab, but the same vendor issued two receipts in the sum of Rs.5,5,000 and Rs.2,25,000
respectively for the subject properties and besides two receipts, the learned counsel also invited the
attention of the Court to the ,copies of two pay orders containing the same amount which were issued to
the defendant No.1 from the account of the plaintiff. Copies of receipts and pay orders are attached with
the plaint. The learned counsel argued that the plaintiff is the nominee of Muhammad Tayyab but
subsequently he has paid the substantial amount to the defendant No.1 directly which was fully
acknowledged and receipts were issued for the same properties, hence it is proved that the plaintiff has
vested right to file the suit even on the strength of the receipts any pay orders attached with the plaint
which are not disputed documents. Whether the plaintiff has a right to file the suit or not, this question
can only be resolved after adducing evidence by the parties even the defendant No.1 herself filed copy of
agreement which was allegedly signed between the plaintiff and defendant No.1, whereby the earlier
agreement dated 22-2-2006 was cancelled and the defendant No.1 also pleaded the novation of contract.
All these complicated questions can only be resolved after recording evidence in the matter therefore, the
application under Order VII, rule 11, C.P.C. is not maintainable and is liable to be dismissed. In support
of his arguments, the learned counsel for the plaintiff relied upon a judgment reported in Raja Muhammad
Younis Khan v. Bagga Khan and others 2003 YLR 2797 in which, it has been held that the Court has to
confine itself only to the averments made in the plaint and has to take the contents thereof to be true and
cannot go beyond the same. If, however, on taking the averments made in the plaint the Court finds the
plaint to be barred by law, the Court can reject the plaint but cannot do so by resolving the contested facts.
The plaint can only be rejected where its perusal shows that the relief claimed by the plaintiff was barred
under any provision of law or a suit on the basis of it was incompetent.
Keeping in view the pros and cons of the matter, in all conscience I am of the view that the execution of
two receipts and receipt of pay orders by the defendant No.1 from the plaintiff gives him a cause of action
of filing the present suit. The defendant No.1 has also attached a copy of agreement executed between the
defendant No.1 and the plaintiff which shows some sort of novation between the parties, therefore at this
stage no positive finding can be given that the suit is barred by law. In order to sift grain from the chaff, it
is necessary that parties should lead evidence in support of their pleadings and unless the evidence is
record, Court cannot reach to the proper conclusion. The honourable Supreme Court in its judgment
reported in Haji Mitha Khan v. Muhammad Younus and others 1991 SCMR 2030 has held that the test of
cause of action is that if what plaintiff has stated is taken to be correct, is he entitled to relief or not. In
another judgment reported in Mrs. Anis Haider and others v. S. Amir Haider and others 2008 SCMR 236,
the honourable Supreme Court has held that pleadings of parties could not be taken as evidence
particularly when its maker was not even examined in its support and cross-examined by his opponent.
Order VII, rule 11, C.P.C. can be attracted only when a plaint itself does not disclose any cause of action.
It cannot be rejected on the basis of Written Statement because the initial burden remains on the plaintiff
to prove his case on the basis of assertions made in the pleadings. If the principle in hand adopted by the
Courts below is endorsed, it would be the easiest thing to dismiss any civil suit simply and merely on the
basis of written statement. In another judgment reported in Haji Allah Bakhsh v. Abdul Rehman and
others- 1995 SCMR 459, the honourable Supreme Court has held that in order to press into service the
provisions of Order VII, rule 11, C.P.C., the averments contained in the plaint are to be presumed to be
correct. On the above assumption, the plaint is to be examined and if the case falls under any of the
clauses (a), (b), (c) and (d) of rule 11, C.P.C., the plaint is liable to be rejected. According to one more
judgment reported in Abdul Rahman v. Wahid Bakhsh PLD 1977 Lah. 1243, the word "cause of action"
means bundle of facts which if traversed, a suitor claiming relief is required to prove for 'obtaining
judgment. Nevertheless, it does not mean that even if one such fact, a constituent of cause of action is in
existence, the claim can succeed. The totality of the facts must co-exist and if anything is wanting the
claim would be incompetent. A part is included in the whole but the whole can never be equal to the part.
It is also well understood that not only the party seeking relief should have a cause of action when the
transaction or the alleged act is done but also at the time of the institution of the claim. For example, there
may be a case where at the time when an action is brought, there is no right to seek the remedy though the
remedy was available when the right was infringed. A suitor is required to show that not only a right has
been infringed in a manner to entitle him to a relief but also that when he approached the Court the right
to seek the relief was in existence. Similarly the Privy Council in another case had summed up that cause
of action means every fact which will be necessary for the plaintiff to prove if traverse in order to support
his right to judgment. It has no relation to the defence that may be set up nor does it depend upon the
character of the relief prayed. In another judgment reported in Ghulam Ali v. Asmatullah 1990 SCMR
1630, the honourable Supreme Court has held that assertion made in the plaint had to be seen for the
purposes of determining whether plaint disclosed any cause of action. Lack of proof or weakness of proof
in circumstances of the case did not furnish any justification for coming to conclusion that there was no
cause of action shown in the plaint. In another judgment reported in Jewan v. Federation of Pakistan 1994
SCMR 826, the honourable Supreme Court has held that while taking action for rejection of plaint under
Order VII, rule 11, C.P.C., the Court cannot take into consideration pleas raised by the defendants in the
suit in his defence as at that stage the pleas raised by the defendants are only contentions in the
proceedings unsupported by any evidence on record. However, if there is some other material before the
Court apart form the plaint at that stage which is admitted by the plaintiff, the same can also be looked
into and taken into consideration by the Court while rejecting the plaint.
In my view the contents of the plaint are showing plausible cause of action against the defendants. The
case law relied upon by the learned counsel for the defendants No.1 and 2 are distinguishable in the facts
and circumstances of this case. One judgment related to Order VII, rule 11, C.P.C. in which the learned
Single Judge of this Court has observed that while deciding the application, the contents of the Written
Statement may be looked into but the facts and circumstances of that case were distinguishable on the
ground that the rejection was claimed on the basis of res judicata. The learned Single Judge of this Court
had dismissed the application under Order VII, rule 11, C.P.C. on the ground that the contents of the
planit were not showing any res judicata between the parties. The next judgment relates to the novation of
contract. Whether novation took place or not, again it is a matter of evidence and the plaintiff has claimed
the specific performance as nominee of Muhammad Tayyab and created his right on the basis of two
receipts issued by the defendant No.1 in his name and in order to show t his bona fide, he has also
attached copies of two pay orders and the receipts showing cause of action against the present defendants
for the purposes of specific performance of the contract. Where a cause of action is disclosed, the
question as to whether the plaintiff will be able to prove it is irrelevant and at the preliminary stage it is
not permissible to base the decision on the data provided by the opposite party. Whether the plaintiff has
any legal character or locus standi to file the suit, whether he has any privity of contract or whether he is
bound by the alleged novation of contract or the earlier agreement was superseded/cancelled, all these
bare bones of the matter require factual investigation and cannot be proved unless appropriate issues are
framed and parties are given ample opportunity to lead evidence. So far as section 17 of the Court Fees
Act is concerned, it is also not applicable in the present situation. Provisions of section 17 applies to the
suits which embrace two or more distinct cause of action. When a suit is filed combining multifarious
causes of action then each claim on the basis of causes of action is to bevalued separately and requisite
fee is to be paid on it. In fact the applicability of section 17 is confined to the different reliefs claimed in
the plaint for the purpose of ad valorem court fee in vogue prior to the fixation of maximum limit of
court-fee for the plaint. The honourable Supreme court has already considered section 17 of the Court
Fees Act in its judgment reported in Aslam Industries Ltd. v. Pakistan Edible Corporation of Pakistan and
others 1993 SCMR 683 and held that section 17 of the Court Fees Act merely lays down a rule whereby
aggregate amount of fee leviable on the plaint or memorandum of appeal in suits embracing separate
subjects will have to be paid, but does not itself fix the amount of Court Fees. Rather, it refers to other
parts of the Act for the amount leviable i.e. to the Schedules, which deal with the subject. section 17 is
subject to the rules as to the amount of the fee, which is stated in the Schedule. Thus, the Court Fee
payable on a plaint in respect of a multifarious suit covered by section 17 where the Court Fee is not
otherwise provided for by the Act, would be Article 1 of Schedule 1. If this Article is applicable, it is to
be applied according to its exact tenor. A maximum ceiling of Court Fee is provided on the documents
listed in this Article, which includes a plaint. This would therefore apply irrespective of the consideration
whether section 17 is applicable to the case. The ceiling overrides the rule contained in section 17. Even
otherwise, a taxing statute must be construed in the light of what is clearly expressed and if the legislature
wants to fix a maximum ceiling beyond which it does not want to recover Court Fees, true recognition
must be given to that intent.
The plaint shows that the plaintiff has sought the specific performance on the basis of agreement dated
22-2-2006 in which both the properties are jointly mentioned and maximum court fee has been affixed on
the plaint against the valuation of Suit so in my view apart from the detailed judgment of the honourable
Supreme Court clarifying the applicability, scope, nature and true intent of section 17 of the Court Fees
Act, this section is even otherwise not applicable in the peculiar circumstances of the case, therefore the
objection of the learned counsel for the defendants No.1 and 2 that the plaint is also hit by section 17 of
the Court Fees Act is not sustainable.
The whys and wherefores lead me to a conclusion that the defendants Nos. 1 and 2 have failed to
convince the Court by any cogent or plausible justification warranting the rejection of plaint. The
application under Order VII, rule 11, C.P.C. is dismissed. The parties are directed to file their proposed
issues so that the matter may be decided on merits.
S.A.K./M-117/K Application dismissed.
CASE NO. 2:
2019 Y L R 408
[Peshawar (Abbottabad Bench)]
Before Syed Arshad Ali, J
ABDUL GHANI---Petitioner
Versus
JAMAIL-U-REHMAN---Respondent
C.R. No.236-A of 2015, decided on 1st March, 2018.
(a) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---
----S. 13---Civil Procedure Code (V of 1908), O.VII, R. 11---Pre-emption suit---Plaint, rejection of---
Scope---Alienation of suit land prior to institution of suit---Vendee alienated suit property to his son prior
to institution of suit---Defendant moved application for rejection of plaint which was accepted---Validity-
--"Whether subsequent alienation was a valid devise to ward-off the right of pre-emption or same was
only a disguise/ sham transaction to deprive the plaintiff from his right of pre-emption" could only be
determined after recording evidence---Courts below had ignored the settled principles of law while
deciding the application for rejection of plaint---Only contents of plaint while deciding the application for
rejection of the same had to be taken into consideration---Plaint, in the present case, revealed a cause of
action to the pre-emptor to file suit against the impugned sale---Suit had been filed within prescribed
period of limitation against the original transaction---Present suit was neither barred by any law nor did it
lack disclosing a cause of action---Impugned orders passed by the Courts below were set aside---Revision
was allowed in circumstances.
PLD 2009 SC 93 ref.
Muhammad Hussain v. Muhammad PLD 2010 SC 803; Muhammad Zaman and others v. Shah Wazir
Khan PLD 2002 Pesh. 45; Aurangzeb Khan v. Haq Nawaz and others PLD 2008 Pesh. 135; Atta Ullah
and 6 others v. Sanaullah and 5 others PLD 2009 Kar. 38 and Abdul Qayyum through Legal heirs v.
Mushk-e-Alam and another 2001 SCMR 798 rel.
(b) Civil Procedure Code (V of 1908)---
----O. VII, R. 11---Plaint, rejection of---Factors to be considered---Only contents of plaint while deciding
the application for rejection of the same had to be taken into consideration.
Haji Ghulam Basit for Petitioner.
Muhammad Nawaz for Respondent.
Date of hearing: 1st March, 2018.
JUDGMENT
SYED ARSHAD ALI, J.---Petitioner through the instant revision petition has called in question the
judgment and order of learned Additional District Judge, Ghazi Haripur dated 19.03.2015 whereby the
learned Additional District Judge, dismissed Civil Appeal No. 29/13 of 2014 filed by the petitioner
against the judgment and decree of learned Civil Judge, Haripur dated 06.03.2014, through which the
learned trial Court had rejected the plaint of the respondent.
2. Essential facts of the case are that respondent Jamil-ur-Rehman purchased suit property through
mutation No. 745 attested on 27.05.2013 from Liaqat Khan. According to the averments in the plaint, the
plaintiff/petitioner came to know about the said sale through Muhammad Ajmal son of Ghulam Rabbani
on 15.08.2013 at 05:00 P.M. and as such he performed the jumping demand (Talb-i-Muwathibat) in
presence of Mehboob son of Ghulam Ameer and Shahzada Khan son of Muhammad Safdar. He has
further stated in the plaint that the notice of Talb-i-Ishhad was issued through registered
acknowledgement to the present respondent on 28.08.2013, whereas the suit was filed on 23.09.2009.
3. The learned trial court issued notice to the respondent/defendant who appeared and filed application for
rejection of plaint under Order VII, Rule 11 of Civil Procedure Code 1908 on the grounds that he has
alienated the suit property to his son through mutation No. 746 dated 27.05.2013, prior to the institution
of suit.
4. In view of the aforesaid facts, the petitioner/plaintiff filed an application for impleadment of the son of
respondent/ defendant being donee of the suit property. The learned trial Court while relying on the ratio
of the judgment of the honourable Supreme Court of Pakistan, reported in PLD 2009 SC 93, rejected the
plaint vide order dated 06.03.2014 and resultantly the application of the petitioner/ plaintiff was also
dismissed. The appeal filed by the petitioner was also dismissed by the learned appellate Court vide
impugned judgment/order/decree dated 19.03.2015.
5. Arguments heard and record perused.
6. The question whether the subsequent transaction was a valid devise to ward off the right of pre-emption
of the petitioner/plaintiff or whether the same was only a disguise/sham transaction in order to deprive the
petitioner/plaintiff from his right of pre-emption can only be answered after recording evidence.
7. The Honourable Supreme Court of Pakistan in "Muhammad Hussain v. Muhammad" (PLD 2010 SC
803) has held that:--
"We have heard the learned counsel for the parties and have gone through the orders passed by all the
Courts below. It is pertinent to mention here that in the instant case the suit was instituted within the
period of prescribed limitation i.e. 120 days. Now the only question for consideration is that for the
purpose of second vendee, who has purchased the property subsequently, the period for filing of suit or
impleading him as party, shall run afresh or on the basis of the suit, which had already been instituted
against the original vendee or he would be impleaded without taking into consideration that the sale had
taken place beyond the period of limitation. On having gone through the relevant provisions of law on the
subject as well as the judgments cited by the learned counsel for the petitioner. It may also be noted that
an earlier judgment, in the case of Mustaqim Khan v. Abdullah Khan and others PLD 1951 Pesh. 1, while
examining the same proposition, it has been held that:--
"Now, it cannot be denied that a right of pre-emption comes into existence as soon as sale is effected. The
re-sale, therefore, does not create any new right; the right pre-exists the re-sale, I, therefore, conclude that
the view of law taken in 26 Punjab Record 1908, 10 Indian Cases 367, and AIR 1930 Lah. 356, should be
preferred to the one taken in 1942 Pesh.L.J. 43. This conclusion can be justified on other considerations
also. It is admitted that if a person possessing a superior right of pre-emption to the pre-emptor instead of
buying the suit property privately brings a pre-emption suit in respect of the same property, his suit will
succeed and the pre-emptor will be non-suited. Consequently, there is no cogent reasons why the same
result should not follow in case such a person instead of bringing a pre-emption suit buys the suit property
out of Court from the first vendee. It is also well-established that a vendee may sell to a person who has
an equal right with the pre-emptor or who has a superior right to the pre-emptor, ante litem, so as to defeat
the pre-emptor's claim provided the transaction is genuine. This being so, I think it will be inequitable to
permit a pre-emptor to defeat a person who has a superior right of pre-emption and to whom the suit
property is re-sold within a period of limitation, simply because the pre-emptor rushes to Court
immediately after a sale is effected."
The above principle has been reiterated in the judgments cited by the learned counsel for the petitioner.
As far as the judgment relied upon by the learned counsel for the respondent is concerned, no law has
been declared in the same as in that very case, leave to appeal was declined. It is also important to note
that principle of lis pendens is not applicable to the cases, where a suit for pre-emption is already
commenced within the prescribed time. Therefore, as far as the second vendee, who had purchased the
property from the first vendee is concerned, his right would also be governed on the basis of the suit,
which has already commenced in respect of the same property because the right of pre-emption has been
claimed in respect of the property and not in respect of the person who had become first or second
vendee.
Thus, for the foregoing reasons, we are of the opinion that the judgment under review is required to be
revisited; as result whereof the petition is accepted and the appeal filed by the petitioner is allowed.
Consequently, the judgment of the High Court dated 18th December, 1994 is set aside and the case is sent
back to the learned High Court, where now the matter is pending, for consideration to implead Fazal-e-
Akbar as respondent and then to dispose of the matter pending before it. No order as to costs."
(Underline is for emphasis)
Both the Courts below have fallen in the field of error by rejecting that plaint while ignoring the settled
principle of law that for the purpose of deciding the application for rejecting the plaint, only the contents
of the plaint have to be taken in consideration. In "Muhammad Zaman and others v. Shah Wazir Khan,
PLD 2002 Peshawar 45", it was held:--
"In order to invoke the applicability of this clause the Court shall look into the contents of the plaint only
and shall examine the plaint on its face value. If the plaint by itself indicates any infirmity enumerated in
clauses (a) to (d) of Rule 11 of Order VII, C.P.C. then the Court shall order the rejection of the plaint as
the fruitless litigation requires to be buried at its inception to avoid the wastage of time of Courts and
unnecessary harassment of the opposite-party.
It is also to be noted that for the purpose of determining whether the plaint discloses cause of action or
not, the Court has to presume that every allegation trade in the plaint was true. It thus follows that resort
to the power of rejecting a plaint be trade only if the Court comes to the irresistible conclusion, within the
parameters of Order VII, Rule 11, C.P.C., that even if all allegations made in the plaint were proved,
plaintiff would not be entitled to any relief whatsoever. If the averments contained in a written statement,
being rival pleadings, engenders any controversy then it becomes an issue between the parties which can
only be resolved after recording and evaluating the evidence of the combating parties adduced at the trial.
Thus the defendant having filed a written statement and pleas raised by him in the nature of defence in
suit cannot be looked into while considering application for rejection of the plaint. Wisdom and guidance
is sought from the judgment of the august Supreme Court of Pakistan rendered in case of Haji Allah
Bakhsh v. Abdul Rehman and others (1995 SCMR 459) wherefrom the relevant observations are given as
follows:--
"The above contention seems to be devoid of any force. In order to press into service the provisions of
Order VII, Rule 11, C.P.C., the averments contained in the plaint are to be presumed to be correct.
On the above assumption the plaint is to be examined and if the case falls under any of the clauses (a),
(b), (c) and (d) of Rule 11, the plaint is liable to be rejected."
Similarly, in "Aurangzeb Khan v. Haq Nawaz and others, (PLD 2008 Peshawar 135)", the stated view
was further affirmed by holding:--
"Once averments are made in the plaint, those averments only had to be taken into consideration while
rejecting the plaint especially in the circumstances when in the instant case the defendant-petitioner had
admitted the factum of sale in his application for rejection of the plaint who had alleged its cancellation.
In such situation serious disputed questions were involved which could only be thrashed out after
recording of pro and contra evidence after submitting the written statement and framing of issues as held
in Ghulam Dastagir and others v. Mst. Mariam and others (1993 MLD 1005 Karachi) and Messrs Hoechst
Pakistan Ltd. v. Messrs Cooperative Insurance Societies and others (1993 MLD 2464 Lahore)."
In "Atta Ullah and 6 others v. Sanaullah and 5 others, (PLD 2009 Karachi page 38)" it was held that:--
"The plaint can only be rejected under clause (d) of Order VII Rule 11, C.P.C. if from the statement in the
plaint the Court comes to the conclusion that the same is barred by any law. For deciding an application
under Order VII Rule 11, C.P.C. the contents of the plaint has to be taken as true on its face value and the
pleas raised in defence cannot be looked into. "
The plea of defence that the suit property has been further alienated and in absence of performing Talbs
on the second transection the suit is not maintainable, requires evidence to ascertain as to whether the
same is a genuine transaction or a result of collusion to ward off the right of pre-emptor of the
petitioner/plaintiff. In Abdul Qayyum through legal heirs v. Mushk-e-Alam and another, (2001 SCMR
798), the honourable Supreme Court of Pakistan has held that:--
"Reverting to the question of second sale allegedly made by the vendee in favour of appellant No.2, it
may be mentioned that though in the written statement, a specific ground was taken that the appellants
should have pre-empted the said sale as the previous sale had become non-existent but from the findings
recorded by the trial Court under Issues Nos. 1 and 4 that no evidence was produced to prove the said
issues by the appellants on whom onus was placed nor the same was pressed during final arguments, it is
clear that the same were abandoned. These issues were answered against the respondents. Though the
respondents could not file an appeal as the suit had been dismissed on other grounds but they could
certainly under, Order XLI, Rule 22, C.P.C, support the judgment of the trial Court of dismissal of suit on
other grounds also decided against them. It is manifest from the judgment of the First Appellate Court
which accepted the appeal of the appellants that no attempt was made by the appellants to argue either
orally or by making application against the findings recorded by the trial Court on Issues Nos. 1 and 4
against them. In the revision petition, it was stated in the narration of facts that the said second sale had
been made but no ground was taken as a ground of attack against the findings of the trial Court under
Issues Nos.1 and 4. Nothing was stated in the grounds of revision petition that the observations of the trial
Court that the said issues were not pressed were not correct. The learned Judge of the High Court of his
own without examining the case on the said issues in detail merely observed that the appellants failed to
make any attempt starting from the Talbs upto the filing of pre-emption suit in respect of the subsequent
transaction in favour of respondent. No. 2. Before recording such a finding, the findings of the trial Court
under Issues Nos. 1 and 4 were required to be set aside and the second transaction of sale was to be
scrutinized in the light of the ground taken by the appellants in the plaint that the same was not the real
transaction but was created merely to create hindrances in the way of exercise of right of pre-emption by
the appellants. "
The close perusal of the contents of the plaint clearly reveals a cause of action to the petitioner/plaintiff to
bring a suit against the impugned sale. Indeed the suit has been filed within the prescribed period of
limitation against the original transaction. The suit is neither barred by any law nor does it lacks
disclosing a cause of action. Hence, while accepting the present revision petition, both the impugned
orders are set aside. Resultantly, the application for impleadment of the alleged donee in the suit is
accepted.
ZC/310/P Revision accepted.
CASE LAW AGAINST THE JUDGEMENT
CASE NO. 1:

1994 S C M R 826

[Supreme Court of Pakistan]

Present: Shafiur Rahman and Saeeduzzaman Siddiqui, JJ
JEWAN and 7 others---Appellants
versus
FEDERATION OF PAKISTAN through Secretary, Revenue, Islamabad
and 2 others---Respondents
Civil Appeal No. 521 of 1992, decided on 24th January, 1994.
(On appeal from the judgment of Lahore High Court, dated 28-9-1991 and 11-12-1991, passed in C.R.
2232/90 and Rev. Application No. 35-C/91).
(a) Civil Procedure Code (V of 1908)---
----O.VII, R. 11---Constitution of Pakistan (1973), Art. 185 (3)---Leave to appeal was granted to consider
as to whether in the circumstances of the case the rejection of plaint under O.VII, R.11, C.P.C. was
justified.
(b) Civil Procedure Code (V of 1908)---
----O.VII, R. 11---Rejection of plaint under O.VII, R.11, C.P.C. when contemplated ---Difference
between the scope of proceedings of an application under OXXXIX, Rr.l & 2, C.P.C. filed by the plaintiff
for grant of temporary injunction in a pending proceeding and the rejection of plaint under O.VII, R.11,
C.P.C. on account of failure to disclose a cause of action in the plaint or the plaint being barred under
some provision of law.
The rejection of plaint under Order VII, Rule 11, C.P.C. is contemplated at a stage when the Court has not
recorded any evidence in the suit. It is for this reason precisely, that the law permits consideration of only
averments made in the plaint for the purpose of deciding whether the plaint should be rejected or not for
failure to disclose cause of action or the suit being barred under some provision of law. The Court while
taking action for rejection of plaint under Order VII, Rule 11, C.P.C. cannot take into consideration pleas
raised by the defendant in the suit in "his defence as at that stage the pleas raised by the defendants are
only contentions in the proceedings unsupported by any evidence on record. However, if there is some
other material before the Court apart from the plaint at that stage which is admitted by the plaintiff, the
same can also be looked into and taken into consideration by the Court while rejecting the plaint under
Order VII, Rule 11, C.P.C: Beyond that the Court would not be entitled to take into consideration any
other material produced on record unless the same is brought on record in accordance with the rules of
evidence. There is marked different between the scope of proceedings of an application under Order
XXXIX, Rules 1 and 2, C.P.C., filed by the plaintiff for grant of temporary injunction in a pending
proceeding and the rejection of the plaint under Order VII, Rule 11, C.P.C. on account of failure to
disclose a cause of action in the plaint or the plaint being barred under some provision of law. In the
former case, the Court while deciding the application for grant of temporary injunction ascertains
existence or otherwise of a prima facie case, balance of convenience and the possibility of irreparable
injury to the party seeking injunction in the case if the relief is withheld. While considering existence or
otherwise of a prima facie case in proceeding under Order XXXIX, Rules 1 and 2, C.P.C., the Court is not
only entitled to look into the pleadings of the plaintiff and documents filed by him in support of the case
but it can also take into consideration the documents of pleadings filed by the defendant. However, the
Courts while rejecting a plaint under Order VII, Rule 11, C.P.C., on the ground that the plaint failed to
disclose any cause of action or the suit is barred under some provision of law. the extent of examination
of relevant facts by the Court to reach these conclusions has to be only on the basis of averments made in
the plaint and any other material or document which is admitted by the plaintiff. The reason for this
different approach while rejecting a plaint under Order VII, Rule 11, C.P.C. is quite obvious. In the
former proceedings (under Order XXXIX, Rules 1 and 2, C.P.C.) even if the Court reaches the conclusion
that the plaintiff has failed to make out a prima facie case, it can only refuse to grant temporary injunction
and reject the application under Order XXXIX, Rules 1 and 2, C.P.C. but this rejection cannot result in.
the dismissal of the suit which proceeds to trial notwithstanding a finding by the Court that the plaintiff
has failed to make out a prima facie case for grant of temporary injunction. On the contrary, if the Court
reaches the conclusion that the plaint failed to disclose any cause of action or suit appears to be barred
under some law, the proceedings come to an end immediately and the plaintiff is non-suited before he is
allowed an opportunity to lead evidence and substantiate his allegation made in the plaint. The rejection
of plaint at a preliminary stage when the plaintiff has not led any evidence in support of his case is
possible only if the Court reaches this conclusion on consideration of the statements contained in the
plaint and other material available on record before the Court which the plaintiff admits as correct.
Muhammad Akhtar v. Abdul Hadi 1981 SCMR 878 and Nazeer Ahmed v. Ghulam Mehdi 1988 SCMR
824 ref.
(c) Civil Procedure Code (V of 1908)---
----O.VII, R. 11---Rejection of plaint---Court while rejecting the plaint under O.VII, R. 11, C.P.C. cannot
take into consideration the plea of defendant when such plea is disputed and denied by the plaintiff.
Muhammad Akhtar v. Abdul Hadi 1981 SCMR 878 and Nazeer Ahmed v. Ghulam Mehdi 1988 SCMR
824 explained.
(d) Civil Procedure Code (V of 1908)---
----O.VII, R. 11---Rejection of plaint---Until such time the documents relating to earlier proceedings were
brought on record in accordance with law and the matter was thoroughly examined with regard to
controversy in the two proceedings, it was not possible for the Court to reach the conclusion that the suit
involved the same controversy which was decided in the earlier proceedings.
Muhammad Hanif Niazi, Advocate Supreme Court with Rana Maqbool Ahmad Kadri,
Advocate-on-Record (absent) for Appellants.
Syed Zahid Hussain, Advocate Supreme Court with Tanvir Ahmad, Advocate-on-Record for (absent)
Respondent.
Date of hearing 24th January 1994.
JUDGMENT
SAEEDUZZAMAN SIDDIQUI, J: --The above appeal with the leave of this Court is filed by the
appellants to call in question the orders passed by a learned Judge in Chambers of Lahore High Court, on
28-9-1991 and 11-12-1991 dismissing the Civil Revision Application and the Review Application
respectively, filed by the appellants. Leave was granted in the case to consider the following contention of
the appellants:-
"The contention of the learned counsel for the petitioners is not without force. The order of the trial Court
rejecting the plaint under Order VII, Rule 11, C.P.C. on the ground that the suit instituted by the plaintiff
was mala fide and passed on concocted and distorted facts was apparently outside the scope of the
provisions of Order VII, Rule 11, C.P.C. as no evidence in the case was recorded and prima facie no
material was available before the trial Court to record the above findings. We are accordingly, inclined to
grant leave in the case to consider whether in the circumstances of the case the rejection of plaint under
Order 7, Rule 11 was justified."
The appellants instituted Civil Suit No. 195 of 1990 before the Civil Judge, Jhang for declaration of title.
Alongwith the suit, the appellants also filed an application for grant of a temporary injunction to 'protect
their possession over the land in suit. The trial Court while deciding the application for grant of temporary
injunction rejected the plaint observing as follows:--
"7. I have come to the conclusion that the case of the plaintiffs/petitioners is absolutely mala fide, has
been filed on the concocted and distorted fact. There is no document on file showing them to be
occupancy tenants and as such owners. According to the statement of Jewan, it is since 1966 that the
ownership stands in favour of defendant No.2. Not only this the plaintiffs are paying him the share of
produce. Thus, the plaintiffs have no cause of action. For their failure before High Court in writ
jurisdiction, their case is also barred under res judicata. Thus their plaint is rejected."
The appeal filed by the appellants against the above order of Civil, Judge before the Additional District
Judge, Jhang, failed and the Civil Revision Application preferred before the High challenging the
appellate order also met the same fate giving rise to the present appeal.
The learned counsel for the appellants contended before us that the rejection of plaint was based on
considerations which were extraneous to the provision of Order VII, Rule 11, C.P.C.. It is also contended
by the learned counsel that the learned Judge in Chambers took into consideration facts which were
neither proved on record by any legal evidence nor admitted by the appellants and as such the order was
not sustainable in law.
The learned counsel for the respondents on the other hand contended that the civil suit filed by the
appellants was an abuse of the process of the Court as in the earlier round of litigation between the parties
which ended with the dismissal of Writ Petition No.2080 of 1965 filed by the appellants, the appellants
were unsuccessful to establish their title to the land. The learned counsel for the respondents relied on the
decisions of this Court in the cases of Muhammad Akhtar v. Abdul Hadi (1981 SCMR 878) and Nazeer
Ahmad v. Ghulam Mehdi (1988 SCMR 824) which are also referred by the learned Judge in Chambers in
the impugned judgment, to contend that the provisions of Order VII, Rule 11, C.P.C. are not exhaustive
and that the power to reject a plaint could be exercised by the Court apart from the provisions of Order
VII, Rule 11, C.P.C. if the Court otherwise finds that the continuation of proceedings of the suit is nothing
but an abuse of the power of the Court.
A plain reading of the Order VII, Rule 11, C.P.C. would show that the rejection of plaint under this
prevision of law is contemplated at a stage when the Court has not recorded any evidence in the suit. It is
for this reason precisely, that the law permit consideration of only averments made in the plaint for the
purpose of deciding whether tile plaint should be rejected or not for failure to disclose cause of action or
the suit being barred under some provision of law. The Court while taking action for rejection of plaint
under Order VII, Rule 11, C.P.C. cannot take into consideration pleas raised by the defendant in the suit
in his decease, as at that stage the pleas raised by the defendants are only contentions in the proceedings
unsupported by any evidence on record. However, if there is some other material before the Court apart
from the plaint at that stage which is admitted by the plaintiff, the same can also be looked into and taken
into consideration by the Court while rejecting the plaint under Order VII, Rule, 11 C.P.C.. Beyond that
the Court would not be entitled to take into consideration any other material produced on record unless
the same is brought on record in accordance with the rules of evidence. We may point out here that there
is marked different between the scope of proceedings of an application under Order XXXIX, Rules 1 and
2, C.P.C., filed by the plaintiff for grant of temporary injunction in a pending proceeding and the rejection
of the plaint under Order VII, Rule 11, C.P.C. on account of failure to disclose a cause of action in the
plaint or the plaint being barred under some provision of law. In the former case, the Court while deciding
the application for grant of temporary injunction ascertains existence or otherwise of a prima facie case,
balance of convenience and the possibility of irreparable injury to the party seeking injunction in case the
relief is with held. While considering existence or otherwise of a prima facie case in proceedings under
Order XXXIX, Rules 1 and 2, C.P.C., the Court is not only entitled to look into the pleadings of the
plaintiff and documents filed by him in support of the case but it can also take into consideration the
documents of pleadings filed by the defendant. However, the Courts while rejecting a plaint under Order
VII, Rule 11, C.P.C., on the ground that the plaintiff failed to disclose any cause of action or the suit is
barred under some provision of law, the extent of examination of relevant facts by the Court to reach
these conclusions has to be only on the basis of averments made in the plaint and any other material or
document which is admitted by the plaintiff. The reason for this different approach while rejecting a
plaint under Order VII, Rule 11, C.P.C. is quite obvious. In the former proceedings (under Order XXXIX,
Rules 1 and 2, C.P.C.) even if the Court reaches the conclusion that the plaintiff has failed to make out a
prima facie case, it can only refuse to grant temporary injunction and reject the application under Order
XXXIX, Rules 1 and 2, C.P.C. but this rejection cannot result in the dismissal of the suit which proceeds
to trial notwithstanding a finding by the Court that the plaintiff has failed to make out a prima facie case
for grant of temporary injunction. On the contrary, if the Court reaches the conclusion that the plaint
failed to disclose any cause of action or suit appears to be barred under some law, the proceedings come
to an end immediately and the plaintiff is non-suited before he is allowed an opportunity to lead evidence
and substantiate his allegation made in the plaint. We are, therefore, of the view that the rejection of plaint
at a preliminary stage when the plaintiff has not led any evidence in support of his case, is possible only if
the Court reaches this conclusion on consideration of the statements contained in the plaint and other
material available on record before the Court which the plaintiff admits as correct.
The learned counsel for the appellants has, however, contended before us that in view of the decision in
the case of Muhammad Akhtar v. Abdul Hadi and Nazeer Ahmed v. Ghulam Mehdi (supra) the Court
while rejecting a plaint under Order VII, Rule 11, C.P.C. can also take into consideration the pleadings of
the defendants and the documents produced by him. We have carefully examined the above-cited cases
which were the basis of impugned decision by the High Court and are of the view that no such law has
been laid down by this Court in the aforesaid 2 cases. In Muhammad Akhtar v. Abdul Hadi (supra) this
Court accepted the appeal against the order of the High Court which set aside the rejection of plaint under
Order VII, Rule 11, C.P.C. by the lower Courts, on the ground that the High Court while setting aside the
order of the lower Court rejecting the plaint under Order VII, Rule 11, C.P.C. failed to take into account
the order of this Court passed between the parties in the earlier litigation, wherein, the plea raised by the
respondent in the subsequent suit was decided. It was also observed by this Court in the above case that
the subsequent suit instituted by the respondent to challenge the earlier proceedings on the ground of
fraud and misrepresentation and want of jurisdiction was barred in view of Section 12 (2), C.P.C. It will
thus appear that from the very contents of the plaint, the suit was found to be barred under section 12 (2),
C.P.C. and it was for this reason that this Court upheld rejection of the plaint by the trial Court and the
first appellate Court and set aside the order of the High Court interfering with the order rejecting the
plaint under Order VII, Rule 11, C.P.C. In the second case, Nazeer Ahmed v. Ghulam Mehdi (supra) the
suit instituted by the predecessor of the appellant in that case was dismissed under Order VII, Rule 11,
C.P.C. by the trial Court on the ground that the evacuee status of the property was determined by the
Custodian of Evacuee Properties and as such the suit was barred under Section 41 of the Pakistan
Administration of Evacuee Properties Act, 1957. The contention of the appellant in that case was that
with the repeal of the Pakistan Administration of Evacuee Properties Act, 1957, the bar contained under
Section 41 of the said Act was no more applicable. This Court did not accept the above contention of the
appellant and held that in spite of repeal of Act XII of 1957, the bar contained in Section 41 of the Act of
1957 continued to be applicable to the case and the subsequent suit instituted by the appellant after repeal
of the Act of 1957 was barred under the law. In this case also the facts regarding status of the property
and the earlier decision of the Custodian were discernible from the averments in the plaint and as such the
order rejecting the plaint under Order VII, Rule 11, C.P.C. was upheld by this Court. We are, therefore, of
the view that in the above-referred cases though the observation was made by the Court that Order VII,
Rule 11, C.P.C. is not exhaustive of all situations but it did not lay down the law that the Court while
rejecting the plaint under Order VII, Rule 11, C.P.C. could take into consideration the plea of defendant
though disputed and denied by the plaintiff. In the case before us, the trial Court dismissed the suit of the
appellants after reaching the conclusion that the suit filed by them was mala fide and based on concocted
and distorted facts. It was also observed that there was nothing on the record to show that the plaintiff was
not an occupancy tenant of the land. The above finding by the Court is not based on any evidence and was
possibly taken from the averments made by the defendant in his pleadings which were still unsupported
by any legal evidence on the record. Learned counsel for the respondents very vehemently urged that the
statement of one of the appellant, Jewan, was recorded by the Court on 22-4-1990 which could be legally
taken into consideration by the Court while rejecting the plaint under Order VII, Rule 11, C.P.C. The trial
Court in its order dated 20-11-1990 while dismissing application for grant of temporary injunction
referred to the said statement of Jewan recorded on 22-4-1990 as follows:-----
"Worthwhile is the statement of Jewan, plaintiff/petitioner No.l recorded by me on 22-4-1990. He was
clear to say that the defendants have deprived them of their rights with the collusion of Patwari and
mutation in their names have been cancelled. He was categorical that it is the defendant, who is taking
produce of the land. He added that the possession of the plaintiffs, is confined to 26 Bighas, while the rest
of the land has been disposed of by defendant No. 2. He also disclosed that Ehsan Hussain got mutation in
his favour, sanctioned in 1966, and we are paying to him the share of produce since 1966. It is worth of
mention that he said that they are paying them the share of produce voluntarily. This statement of Jeewan
show nothing but that he is aware that mutation has been sanctioned in favour of Ehsan Hussain
(defendant No. 2) since 1966, and for this reason they are voluntarily paying him the share of produce."

We fail to understand as to how the above statement made by Jewan was relevant for the purpose of
rejecting the plaint on the ground that it failed to disclose any cause of action or that the suit instituted by
him was mala fide and based on concocted facts. On the contrary the statement referred to above do show,
and it is also admitted by the learned counsel for the respondents before us, that the appellants are tenants
on the land in question and therefore they could not be dispossessed from there except in accordance with
due process of law. The above statement of Jewan recorded by the trial Court on 22-4-1990 neither shows
that the plaint had failed to disclose any cause of action nor it is sufficient to reach to the conclusion that
the suit was barred on the principle of res judicata applied by the Court. With regard to the observation of
the Courts below that there were earlier proceedings between the parties and therefore, the present suit
instituted by the appellants was barred on the principle of the res judicata may only observe that the
record of the earlier proceedings is to 'be brought before the Court on record in accordance with law and
only then it is to be considered whether the controversy decided in the earlier proceedings is the same
which is agitated by the appellants in the present suit. Until such time the documents relating to earlier
proceedings were brought on record in accordance with law and the matter was thoroughly examined with
regard to controversy in the two proceedings, it was not possible for the Courts below to reach the
conclusion that the present suit involves the same controversy which was decided in the earlier
proceedings. We, accordingly, allow this appeal, set aside the orders of the lower Courts rejecting the
plaint under Order VII, Rule 11, C.P.C.. The case is remanded to the trial Court with the direction to
dispose of the case in accordance with law. As it is not disputed before us, that the appellants are
occupying the land as tenants, the parties will maintain status quo until disposal of the suit. There will no
order as to costs in the circumstances of the case.

M.BA./J-107/S Case remanded.