Powers under Order Vii, Rule 11, C.P.C

Powers under Order Vii, Rule 11, C Powers under Order Vii, Rule 11, C.P.C By Naleymitho @ Muhammad Ishaque, Kubar, Advocate High Court, (Sindh) Karachi Under Order VII Rule 11, C.P.C. a plaint of a Suit shall be rejected for the following reasons: 11. Rejection of Plaint.--The plaint shall be rejected in the following cases: (a) where it does not disclose a cause of action: (b) where the relief claimed is under-valued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so: (c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so: (d) where the suit appears from the statement in the plaint to be barred by any law. In order to attract provisions of Order VII, Rule 11, C.P.C. it is mandatory requirement that the contents of the plaint should be presumed to be true and correct. However, the precedent of honourable Supreme Court of Pakistan laid down in the case of S.M. Shaft Muhammad Zaidi through Legal Heirs v. Malik Hassan Ali Khan (Moin) through Legal Heirs reported in 2002 SCMR 338 is often used for rejecting the plaint. It has been observed by the honourable Supreme Court on Page No.342 (Para No.14) as under: "14. 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 the 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." The aforesaid observation of the honourable Supreme Court of Pakistan too demonstrates that the averments of the plaint cannot be ignored straightaway. In another case law of honourable Supreme Court of Pakistan (Abdul Waris v. Muhammad Yousaf) reported in PLD 1997 Supreme Court 366, it has been,observed by their lordships on Page No.371 by relying upon the case Haji Allah Bakhsh v. Abdur Rehman 1995 SCMR 459. Relevant observation is reproduced below:-- "5. In the present case on the basis of the contents of the plaint, it could not have been held that the plaint does not disclose any cause of action or that relief claimed is undervalued and the plaintiff failed to correct. the valuation in spite of the time fixed by the Court or the plaint written upon insufficient stamp- paper and the plaintiff failed to supply the requisite stamp-paper within the time fixed by the Court or that the suit was barred from the statement in the plaint by any law. In this view of the matter, the learned Civil Judge was competent to reject the above application under Order VII, Rule 11, C.P.C: The petitioner is free to raise whatever legal or factual pleas are available to him to show that the suit is not maintainable but the rejection of the plaint could not have been sought on the above grounds which were pressed into service. Leave is refused." It has been laid down by the honourable Supreme Court of Pakistan in case Jewan and 7 others v. Federation of Pakistan through Secretary, Revenue, Islamabad and 2 others 1994 SCMR 826, at Page No.831, relevant placitum is reproduced as under:-- "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 a case law reported in 1991 SCMR 2030, it has been held by the honourable Supreme Court of Pakistan that in case of defect, the plaintiff be given opportunity to remove defect. In another case law reported in 1990 SCMR 1630, it has been held by the honourable Supreme Court of Pakistan that the plaint cannot be rejected on plea of lack of proof, weakness of proof and only averments of plaint be seen. However, the plaint cannot be rejected where the pleas raised in the plaint require evidence such as fraud, misrepresentation, limitation, etc, or any mixed questions of law and facts. It has been held in case of Muhammad Altaf and others v. Abdur Rehman Khan and others 2001 SCMR 953 (Page No.954), the relevant placitum is reproduced as follows:- "4. We would not like to express our views on the merits of the respective case of parties. However, it will suffice to observe that for the purpose of an application under Order VII, Rule 11, C.P.C., the averments contained in a plaint are to be presumed, to be correct. In the case in hand, learned Judges of the Division Bench have rightly pointed out that the allegation of fraud which was also averred in the plaint could not have been resolved without recording evidence." It has been observed in case of Tariq Mahmood Chaudhry, Kamboh v. Najam-un-Din 1999 SCMR 2396 (Page No.2397), by the honourable Supreme Court of Pakistan, the relevant placitum (A) is reproduced as under:-- "3. After hearing the learned counsel for the petitioner and the respondent who appeared in person, we are of the view that the learned Civil Judge had already framed issue No.2 to the effect that the suit was within time and besides that the learned Civil Judge also gave finding that the question of limitation in the case was a mixed question of law and fact and thus the issue can only be resolved after recording of evidence touching the controversy." When first application under Order VII, Rule 11, C.P.C. has already been decided on merits, second application under Order VII, Rule 11, C.P.C. is not maintainable. See PLD 2002 Supreme Court 74. After rejection of the plaint, the plaintiff can file fresh suit after removing technical defects; if any. Moreover, the order rejecting a plaint is certainly a decree in terms of the definition of the expression "decree" contained in S.2(2), C.P.C. and could be challenged under section 96, C.P.C. However, if the application for rejection of the plaint is dismissed, the party seeking rejection of the plaint may invoke the jurisdiction of Revisional Court, if the said order falls within the meaning of Section 115, C.P.C.