2003 PLP 335 (CLC)

Rashid Akram Rana and Nisar Ahmad Beg for Respondents. Date of hearing: 22nd May, 2002. This revision petition is directed against the order, dated 14‑3‑2000 passed by Additional District Judge, Lahore, whereby he accepted the appeal of the respondents‑plaintiffs filed against the judgment and decree, dated 30‑9‑1998 of the Civil Judge, Lahore whereby the plaint of the suit for declaration and cancellation of the sale deed dated 29‑6‑1997 executed by defendants Nos. 4 to 24 in favour of defendants Nos.1 to 3, registered on 30‑5‑1997, in respect of land measuring 14 Marlas, 10 sq. ft. out of the Property No. S‑39‑R‑2, Bull Road, Lahore, was rejected.

2. Brief facts of the case are that respondent‑plaintiff Kashmiri Bradri . Khishat Faroshan, Lahore (hereinafter referred to as the said Bradri) had a Takya outside Shah Almi Gate, Lahore, which was taken over by the Municipal Corporation. In lieu of the said Takya vide instrument registered on 6‑4‑1864 the Bradri was given by the then Government a Takya covering an area of land measuring 7 Kanals, 14 Marlas outside Mochi Gate, Qila Gujjar Singh, Lahore. It is alleged in the plaint that the abovesaid Bradri had been using and utilizing the said property jointly and nobody individually and without the consent of the other members of the Bradri was entitled, authorized and competent to deal with the same or to sell, alienate and transfer the same or any portion thereof. Some dispute arose regarding the use of the said property by the members of the Bradri Ultimately vide judgment and decree, dated 17‑11‑1922 passed in Civil Appeal No.3404 of 1917 by the Lahore High Court it was decided that the suit property was to be used by all the members of the Bradri and the same was inalienable and indivisible. In 1938, the elders of the Bradri entered into an agreement for the management and dealing with the said property. According to clause (8) of the said ‑agreement, the condition that the alienation/sale of the said property could not take place without the consent of the members of the Bradri was reiterated, which document was registered by the Sub‑Registrar, Lahore on 8‑2‑1938 and Mutation No.2579 was sanctioned on 15‑12‑1939 on the basis of the said agreement. Again some dispute arose amongst the members of the Bradri regarding the said property, which was resolved vide judgment and decree dated 15‑11‑1944 passed by Mr. V.S. Vashist, Sub‑Judge, Lahore. It is stated that the matter was compromised and in those proceedings the said property was again declared as joint, inalienable and indivisible without the consent of whole of the Bradri. One Muhammad Yaqoob claiming himself to be the President of the Bradri leased out a portion of the said property to Agha Rashid Ahmad for a period of 50 years w.e.f. 1‑1‑1988 to December, 2037 and rent note dated 8‑8‑1988 was executed and got registered. A suit was filed by Nazir Ahmad son of Wazir Ahmad (defendant No.21 in the present suit) claiming himself to be the member of the Bradri, challenging the said rent deed dated 8‑8‑1988, which suit was decreed on 2‑5‑1992 by the Civil Court. The appeal filed there against by Agha Rashid Ahmad was dismissed on 11‑4‑1995 by the learned Additional District Judge, Lahore. The plaintiffs‑respondents claim themselves to be the Body constituted by the Members of the Bradri, named as Anjuman Kashmiri Bradri Khisht Faroshan, 2‑Bull Road, Lahore. According to the plaintiffs, this Body is duly registered. It is stated that defendants Nos.1 to 3, who were occupying a portion of the said property on rent, demolished the property, for which the plaintiffs‑respondents filed a suit for permanent injunction. In the said suit written statement was filed by the petitioners‑defendants Nos.1 to 3, in which they claimed that the land measuring 14 Marlas, 10 sq. ft. out of Property bearing No.S‑39‑R‑2, Bull Road, Lahore was purchased by them from defendants Nos.4 to 24 vide sale‑deed dated 29‑6‑1997 registered on 30‑5‑1997. On getting the copy of the above sale‑deed, the respondents filed a suit for declaration and cancellation of the abovesaid sale‑deed on the ground that in the presence of documents, i.e. agreement registered on 6‑4‑1864, decision dated 17‑11‑1922 in Civil Appeal No.3404 of 1917, agreement of Bradri dated 8‑2‑1938, Mutation No‑2579 dated 15‑12‑1939, judgment dated 5‑11‑1994, judgment dated 2‑5‑1992 and judgment dated 11‑4‑1995 of the learned Additional District Judge, defendants Nos.4 to 24 had no authority to transfer the above‑stated property in favour of petitioners‑defendants Nos. 1 to

3. It was also asserted that the above stated sale‑deed was void, ab initio illegal and inoperative.

3. During the pendency of the above suit for declaration, Muhammad Tariq Mahmood, Muhammad Tahir Mahmood and Muhammad Zahid Mehmood petitioners‑defendants Nos. 1 to 3 who had purchased the suit shop, filed an application under Order VII, rule 11, C.P.C. for rejection of the plaint of the suit on the ground that the plaintiff/Anjuman‑Kashmiri Bradri Khisht Faroshan has no locus standi to file the suit against the present defendants‑petitioners who are bona fide purchasers with consideration from the real owners. It was also contended that Abdul Ashfaq, President of the Anjuman and Khalid Masood Butt, Vice‑President, were tenant and therefore, they are de barred from filing the suit. Further contends that the real Anjuman Kashmiri Bradri has filed a suit challenging the legal status of the plaintiff. Further it was contended that Abdul Ashfaq who claims himself to be the President, filed a petition under Order I, rule 10, C.P.C. in the appeal titled `Iqbal Gondal v. Shah Jahan Begum', which was dismissed by the learned Additional District Judge on 19‑11‑1997. In this view of the matter, the plaintiff could have not filed the suit for cancellation of the document. Further it was added that the suit has been filed with mala fide intention.

4. The learned Civil Judge accepted the application under Order VII, rule 11, C.P.C. for rejection of the plaint filed by the petitioners and proceeded to reject the plaint vide judgment and decree dated 30‑9‑1998. The learned Civil Judge observed:‑‑ "The certificate of registration by Joint Stock Company, Punjab, Lahore bears the date of the registration as 4‑12‑1997 whereas the disputed sale‑deed is made on 7‑7‑1997." It was further observed that "no document whatsoever alongwith the plaint has been produced which shows that the registration was thus made with the consent of all the members of the Bradri. Above all a suit is pending in another Court of law in which the legality of the plaintiff itself, has been challenged and as such the status of the plaintiff has not yet been confirmed". The learned Judge proceeded to observe that no cause of action is available to the plaintiff to file the suit.

5. The appeal filed by the plaintiff‑respondents has been accepted by the learned Additional District Judge, Lahore vide order dated 14-3‑2000. The learned Additional District Judge while accepting the appeal did not find himself in agreement with the reasons given by the learned trial Court for rejection of the plaint and observed that:‑‑‑ " ....mere filing of a suit against the appellant Anjuman would not render a civil suit filed by the appellant incompetent." The learned Judge was of the opinion that if some transaction was contrary to the Members of the Kashmiri Bradri the suit is proceedable and the impugned judgment passed by the trial Court is not sustainable. In consequence thereof the appeal was accepted and the case was remanded for re‑decision.

6. The learned counsel for the petitioners contends that respondent No. 1 is not a legal person. The sale‑deed was executed prior to the issuance of certificate of registration by the Registrar, Joint Stock Companies in favour of the respondent. The plaintiffs so‑called Abdul Ashfaq and Maqsood Butt, President and Vice‑President respectively, were adjudged as tenant and the suit has been filed with mala fide intention to frustrate the execution proceedings and that their application in the ejectment matter under Order I, rule 10, C.P.C. has been dismissed by the learned Additional District Judge. The present suit is res judicata and therefore, the suit could have not been proceeded under the law; the plaint was rightly rejected by the learned Civil Judge under Order VII, rule 11, C.P.C. because from the contents of the plaint no locus standi or cause of action could be reflected in favour of the plaintiff.

7. Conversely, the learned counsel for the respondents contends that admittedly Kashmiri Bradri Khisht Faroshan, Lahore was given the land measuring 7 Kanals, 14 Marlas including the property in dispute outside Mochi Gate, Qila Gujjar Singh, Lahore by the Municipal Corporation in lieu of Takya taken by the Corporation outside Shah Almi Gate and the Bradri has been using and utilizing the said property jointly and nobody individually without the consent of other members of the Bradri could have sold the property and this was decided by the Lahore High Court in the Civil Appeal No.3404 of 1917. The precise submission of the learned counsel is that from the contents of the plaint the cause of action was available to the plaintiffs‑respondents and that the provisions of Order VII, rule 11, C.P.C. were not attracted in the facts and circumstances of the case. On the strength of case reported as Jewan and 7 others v. Federation of Pakistan through Secretary, Revenue, Islamabad and 2 others 1994 SCMR 826, Mst. Azra Mansoor and others v. Mst. Zulakha Bai and others 2001 MLD 1469, Khadim Hussain v. Jamal Hussain and 2 others 1997 MLD 2952 and N.A. Shahryar v. Messrs Conforce Limited, Lahore 1981 CLC 1009 it has been contended that it is well‑settled principle of law that the Court while considering application of provisions of rule 11, Order VII, C.P.C., simply to examine the statement made in the plaint and basing decision relating to rejection of the plaint on data and material supplied by the opposite‑party is not permissible unless the parties are put to trial. Learned counsel contends that competency and bar are two distinct questions. According to him, suit may be incompetent, cannot be assumed to be barred under section 42 of the Specific Relief Act.

8. I have heard the arguments of both the learned counsel for the parties and perused the record. It is well‑established principle of law that while considering the application of provisions of rule 11 of Order VII, A C.P.C: the Court has to simply examine the statement made in the plaint. The learned Civil Judge proceeded to reject the plaint of the suit filed by the respondents on the ground that the status of plaintiff Anjuman Kashmiri Bradri Khisht Faroshan is subject‑matter of another suit. The learned Civil Judge also not relied on the certificate of registration in favour of the plaintiff and according to the learned Civil Judge the disputed sale is made on 7‑7‑1997 whereas the date of registration is 4‑12‑1997 subsequent to the date of sale. A perusal of the plaint would show that the plaintiff has specifically mentioned in the plaint that Anjuman Kashmiri Bradri Khisht Faroshan had a Takya outside Shah Almi Gate, Lahore and in lieu of the said Takya vide instrument registered on 6‑4‑1864 the Bradri was given another Takya covering an area of land measuring 7 Kanals, 14 Marlas including the disputed property, outside Mochi Gate, Qila Gujjar Singh, Lahore. This instrument registered on 6‑4‑1864 was of vital importance. Whether the defendants‑petitioners, namely, Muhammad Tariq Mehmood, Muhammad Tahir Mehmood and Muhammad Aahid Mehmood could have purchased the property in violation of the instrument registered on 6‑4‑1864 and the respondents had the authority to sell the land owned by the Bradri. It is also admitted between the parties that some dispute regarding the ownership, management and dealing with the property acquired by the Bradri on the basis of instrument, dated 6‑4‑1864 was decided by the judgment and decree, dated 17‑11‑1922 of High Court in Civil Appeal No. 3404 of 1917. It is the case of the respondents that the said property was to be used by all the members of the Bradri and the same could have not been transferred. Then the agreement registered on 8‑2‑1939 amongst the members of the Bradri, on the basis of which Mutation No.2579 sanctioned on 15‑12‑1939, was also the subject‑matter of the litigation. Certain judgments of the Courts, dated 15‑11‑1944 passed by Mr. V.S. Vashist Sub‑Judge, dated 2‑5‑1992 of Mr. Muhammad Ajmal Hussain, Civil Judge and dated 11‑4‑1995 of Khawaja Muhammad Sharif, Additional District Judge, Lahore were relied upon by the plaintiffs‑respondents‑in the plaint. Both the parties are alleging mala fides against each other, which is question of fact to be decided by adducing evidence.

9. In view of the above, factual and legal controversies arise from the statement made in the plaint, are whether the vendors being the member of the legal entity Anjuman Kashmiri Bradii Khisht Faroshan had the power to sell land in favour of the petitioners. (ii) Whether the respondent‑plaintiff is a lawful and legal body constituted under the law and has a locus standi to file the suit? (iii) whether Abdul Ashfaq President whose application under Order 1, rule 10, C.P.C. has been dismissed by the Court of appeal of the Rent Controller who had the 'limited jurisdiction, was a res judicata in the present suit? (iv) Whether the suit has been filed by the respondent with mala fide intention to frustrate the ejectment order, if any? (v) What is the effect of the judgment passed by the High Court in Civil Appeal No.3404 of 1917, dated 17‑11‑1922, the judgment of the Civil Court,. dated 15‑11‑1944, 2‑5‑1992 of the Civil Judge and judgment, dated 11‑4‑1995 of the Additional District Judge, on the present suit? (vi) Whether the substance of the plaint read with prayer clause of the plaint gives rise to a cause of action against the defendants? (vii) Whether the plaintiff will be entitled to a decree asked for. These questions can be adjudicated upon only after recording evidence of the parties. 'Cause of action' has not been defined in the C.P.C. It is the bundle of facts, which have been alleged by the plaintiff in the plaint. It has been held in the case reported as National Development Finance Corporation v. Messrs Leepa Shoes Ltd., Mirpur 1992 MLD 474 that to ascertain cause of action only the facts stated in the plaint are to be construed to determine whether they constitute a cause of action". It means the whole of the material facts which it is necessary for the plaintiff to allege and prove in order to succeed.

10. The learned counsel appearing for the petitioners has shown the apprehension that the suit has been filed by the respondent‑plaintiff No. 1 with mala fide intention showing to be a legal person, i.e. Anjuman Kashmiri Bradri Khisht Faroshan to frustrate the ejectment order against them. The apprehension of the petitioners is ill‑founded. Unless and until C the ejectment order passed by the competent Court of law against Abdul Ashfaq or any other tenant has been. stayed by the Court of competent jurisdiction by issuing a stay order under Order 39, rules 1 and 2, C.P.C. read with section 151, C.P.C., mere filing of the suit challenging the sale‑deed may not be helpful to the respondent or any other tenant. There is lot of difference between the scope of proceeding in .an application under Order 39, rules 1 and 2, C.P.C. filed by the plaintiff or 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 plaint or the plaint being barred under some provisions of, law. In the former case,' the Court while deciding the application for grant of temporary injunction ascertains existence or otherwise of prima facie case, balance of ‑convenience and the possibility of irreparable loss/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 a proceeding under Order 39, rules 1 and 2, C.P.C. the Court is only entitled to look into the pleadings of the plaintiff and the documents filed by him in support of his case, but it can also take into consideration the documents and the 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 provisions of law, the extent of examination of the relevant facts by the Courts to reach a conclusion 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 provisions of Order VII, rule 11., C.P.C. and Order 39, rules 1 and 2, C.P.C. came up for interpretation in the case reported as Jewan and 7 others 1994 SCMR 826 (supra), wherein it has been ruled by the Hon'ble Supreme Court:‑‑‑ "O.VII, R.11, C.P.C.‑‑‑Rejection of plaint under O.VII, R.11, C.P.C., when contemplated‑‑‑Difference between the scope of proceedings of an application under O.XXXIX, Rr.1 & 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.

11. In case reported as Mst. Azra Mansoor and others v. Mst. Zulakha Bai and others 2001 MLD 1469 it has been held:‑‑‑ " ....Plaint was sought to be rejected on the ground that plaintiffs had no locus standi/cause of action to file suit and that suit was not maintainable under S.42 of Specific Relief Act, 1877‑‑ Allegations made in plaint and contentions raised by defendant, both on legal and factual plane needed full‑fledged enquiry after recording evidence of parties and as such it could not be said that suit was not maintainable."

12. The law and the findings of the Courts are to be applied on the facts of each case. On the basis of the facts mentioned in the plaint and the documents relied upon by the plaintiff, the provisions of Order VII, rule 11, C.P.C. are not attracted and at this stage the plaintiffs could have not been non‑suited. The allegations made in the plaint required a full‑fledged enquiry after recording the evidence. The petitioners defendants can also raise all the objections at the time of final adjudication of the suit including the objection of grant of temporary injunction against the execution of the ejectment order if the occasion arises. The learned Civil Judge fell in error while rejecting the plaint by applying provisions of Order VII, rule 11, C.P.C. the learned Additional District Judge has rightly reversed the judgment and decree of the trial Court. There is no force in this revision petition, which is dismissed. Q.M.H./M.A.K./M‑1357/L Revision dismissed