2026 PLP 165 (YLR)

Anwaarul Haq Pannun, J.

Through the instant writ petition, the petitioner has called in question the vires of the order dated 13.02.2019, dismissing his application under order VII, Rule 11 C.P.C. by learned Civil Judge 1st Class, Lahore and the order dated 22.10.2020 passed by learned Addl. District Judge, Lahore, upholding the above order while dismissing the petitioners revision petition.

2. The factual background of this case, in brief, is that the plaintiffs (hereinafter to be referred as the respondents) filed a suit on 02.05.2009 for specific performance along with perpetual injunction on the basis of an agreement to sell dated 29.12.1998, without citing any witness of the alleged transaction, either in the disputed agreement to sell or in the plaint, against the defendant, their real uncle (hereinafter to be referred as the petitioner); that they have purchased 1/3rd Share out of total land measuring 6-kanals 02 Marlas, comprising Khasra No.1985, Khewat No.305, Khatooni No.551, as per Jamabandi for the year 1993-94 Hadbust Mouza Attoke Awan, Tehsil Cantt. District Lahore from the petitioner, vide aforesaid agreement to sell against the total consideration of Rs.1,30,000/-, out of which, they had paid Rs.40,000/- as earnest money and the possession of the suit property, as part performance, was also delivered to them. The petitioner has resisted the suit while denying the execution of agreement to sell through his written statement. He also filed an application under Order VII, Rule 11 C.P.C., mainly on the grounds that the suit is badly hit and barred by limitation; that neither the disputed agreement to sell had been attested by two marginal witnesses, as required under Article 17 of the Qanun-e-Shahadat Order, 1984 (hereinafter to be referred as the Order), nor the presence of any witness at the time of execution of agreement to sell has even been mentioned in the plaint; that the execution of the agreement to sell cannot be proved as required under Article 79 of the Order ibid, therefore, the plaint may be rejected. The application was contested by the respondents, yet, they failed to mention even the names of the proposed witnesses of the execution of the disputed agreement to sell in their reply and had merely stated that the petitioner never denied the execution of the alleged agreement to sell rather had expressly admitted its execution before people of the vicinity and other relatives who shall be produced before the Court at the time of recording of evidence. The learned trial Court, dismissed the application under Order VII Rule 11 C.P.C., vide its order dated 13.02.2019 with the observations that:- Bare perusal of plaint discloses cause of action in favour of the respondents. The court-fee stamp papers have already been submitted. Thus, provisions of Order VII Rule 11 of C.P.C. are not attracted in the present proposition. Under the circumstances, in the interest of justice, the application is dismissed. No order as to costs. Being aggrieved, the petitioner filed revision petition, which has also met the same fate as the same has also been dismissed, vide order dated 22.10.2020 passed by learned Addl. District Judge, Lahore, hence, this writ petition.

3. No one has entered appearance on behalf of the respondents. In his written request for an adjournment, learned counsel for the respondents has stated that he is busy in some family function, while giving preference to his personal engagement over his professional duty, as on previous date of hearing, the position was also same, therefore, the reason being not tenable, his application is rejected and the respondents are proceeded against ex-parte. Arguments of learned counsel for the petitioner have been heard and record perused.

4. Under Article 202 of the Constitution of Islamic Republic of Pakistan 1973, the High Court has been empowered to make rules, which, for convenience of reference, is reproduced as follows:- "

202. Rules of Procedure. Subject to the Constitution and law, a High Court may make rules regulating the practice and procedure of the Court or of any court subordinate to it." The High Court Rules and Orders further provide guidelines in Vol-I, Chapter -1, Part-C, Rule 6 that:- If the plaint discloses no cause of action, or is barred by any law on the statements made therein, or if the relief claimed is under-valued or the plaint is not sufficiently stamped and the plaintiff fails to correct the valuation or pay the deficiency in the Court-fee within the time fixed by Court the plaint should be "rejected" under Order VII, Rule 11, reasons being recorded by the Presiding Officer in support of the order. In addition to above, under Section 122 of the Civil Procedure Code, 1908 (Part X, Rules) Power of certain High Courts to make rules:-[The High Courts] may, from time to time after previous publication, make rules regulating their own procedure and the procedure of the Civil Courts subject to their superintendence, and may by such rules annul, alter or add to all or any of the rules in the First Schedule. It may be relevant to point out that these rules have survived through 'saving clauses' of successive constitutions (See Article 244 of Constitution 1956, 225 of Constitution 1962 and 268(1) of the Constitution 1973). The rules are primarily a collection of instructions in summarized form, which explain and interpret the laws that are frequently referred to in the Courts.

5. As far as the contents of Order VII Rule 11 C.P.C. are concerned, certain parameters have been encapsulated in it to scrutinize the plaint to control frivolous litigation in limine. Prior to amendment/substitution of clause (d) of the above said Rule by Notification No. 237/Legis/XI-Y-26, dated 15 August 2018, issued by the Lahore High Court, Lahore, it was as under:-

11. Rejection of plaints: The plaint shall be rejected in the following cases:- a) . b) . c) . d) where the suit appears from the statement in the plaint to be barred by any law. The Clause (d) of the Rule by Notification No. 237/Legis/XI-Y-26, dated 15 August 2018, issued by the Lahore High Court, Lahore, published in the Punjab Weekly Gazette, Part-III, dated 22 August 2018, pp. 270-286, r. 6 and came into force on 1st November 2020 through Notification No. 250/Legis/XI-Y-26, dated: 23 October 2020, published in the Punjab Weekly Gazette, Part-III, dated 28 October 2020, p.

225. Order VII Rule 11 Clause (d) supra after amendment reads as under:-

11. Rejection of plaint. The plaint shall be rejected in the following cases: (a) (b) (c) . (d) where the suit appears, from the record available with the court, to be barred by any law. By introducing amendment in clause (d) of Rule 11 of Order VII C.P.C., the scope for rejection of plaint has palpably been enlarged. As defined in amended clause (d) of Rule 11 of Order VII C.P.C,, the term record available with the Court includes (i) Pleadings as defined in Rule 1 of Order VI; (ii) Documents attached with plaint under Rule 14 of Order VII; (iii) Form No.14 as required under Order IX-A, stating separately admitted and disputed facts; (iv) Documents attached with the written statement or relied upon by the defendant under Order VIII; (v) Examination and proceedings under Order X; (vi) Any admissions made by parties during the proceedings of a suit under Order XII; (vii) Documents produced by parties under Rule 1 of Order XIII; of C.P.C. In sum and substance, prior to the above amendment, it was mandated that, if from the statement in the plaint only, it appears that the suit is barred by any law, the plaint could have been rejected, whereas the amendment in clause (d) of supra Rule presently mandates that when the cause, mentioned in the suit, from the record available with the Court, appears barred by any law, the Court is competent to reject the plaint. Such power is vested in the Court to control frivolous and vexatious litigation right from the inception of the suit as the continuation of proceedings would bear no fruitful result rather shall be an exercise in futility and abuse of process of Court and wastage of public time at the expense of other litigants.

6. Before treading ahead, it would be advantageous to examine the scope of the term barred by law as mentioned in clause (d) of Order VII Rule 11 C.P,C. According to the Black's Law Dictionary, bar means, a plea arresting a law suit or legal claim. It means as a verb, to prevent by legal objection. According to the Black s Law Dictionary, barred means obstructed by bar. Subject to hindrance or obstruction by a bar or barrier which, if interposed, will prevent legal redress or recovery, as, when it is said that a claim or cause of action is barred by the statute of limitation. According to Ramanatha Iyar's Law Lexicon, bar is that which obstructs entry or egress; to exclude from consideration. According to the K J AIYAR judicial Dictionary, word bar of resjudicata means as impediment to further action . From above definitions it can be deduced that the barred means no further action shall be taken on cause if no fruitful result is expected.

7. It may be quite relevant to emphasize that Article 17 of The Qanun-e-Shahadat Order, 1984, i.e. competence and number of witnesses in its clause 2(a) makes it obligatory that matter pertaining to financial or future obligations, if reduced into writing, it becomes mandatory that such instrument shall be attested by two men or one man and two women, so that one may remind the other, if necessary and evidence shall be led accordingly. Article 79 when read with Article 17 of ibid, further restricts that any document shall not be used as evidence until two witnesses have been called for the purpose of proving its execution. It is thus clear that unless and until the above referred mandatory conditions are not fulfilled, the document pertaining to financial and future obligation cannot be entertained and admitted in evidence in support of a claim made in the suit, therefore, in absence of fulfillment of the above conditions, the further proceedings, in any suit, would be a mere futile exercise and mere wastage of precious time of the Court. Reliance is placed upon a case reported as Hafiz Tassaduq Hussain v. Muhammad Amin through legal heirs and others (PLD 2011 SC 241).

8. The combined reading of Rule 11 of Order VII of C.P.C, Articles 17 and 79 of the Qanun-e-Shahadat Order, 1984, provides that while considering the facts of case before it, if it suffers from above mentioned flaws, the Court should not hesitate in exercise of its powers to reject the plaint to nip the evil in the bud. In case titled as Sikandar Ali and 2 others v. Baddar-ud-Din and 4 others (2019 CLC 1046) it was held that:- The provision of Order VII rule 11, C.P.C. does not place any such restriction, rather it lays that an incompetent suit must be buried in its inception, if it is found to be falling within the ambit of clause (d) of rule 11 of Order VII of the C.P.C.

9. So far as the facts of instant case are concerned, the alleged agreement to sell dated 29.12.1998, on the basis of which the respondents have instituted their suit, is not an admitted document. It has not been attested by any of the marginal witnesses. Even in their pleadings, name of none of the witness has been mentioned as attesting witness of the alleged agreement to sell. Moreover, even in their written reply, which they had filed in response to application under Order VII Rule 11 C.P.C, the respondents have pleaded that the petitioner never denied the execution of alleged agreement to sell rather he had admitted its execution before the people of vicinity and other relatives who shall be produced before the Court at the time of recording of evidence. Therefore, in view of above undisputed and undeniable factual position, since the alleged agreement to sell dated 29.12.1998 lacks the mandatory requirements under Articles 17 and 79 of the Qanun-e-Shahadat Order, 1984, and as such the same cannot be used as evidence, hence the continuation of proceedings before the learned trial Judge, shall be nothing but futile exercise and abuse of process of Court, which cannot be allowed as aforesaid at the expense of public time, which should be consumed by the Court meaningfully in other matters requiring its urgent attention and serious consideration.

10. For what has been discussed above, by allowing this writ petition, the impugned orders dated 13.02.2019 and 22.10.2020, passed by learned Civil Judge 1st Class and the learned Addl. District Judge, respectively are hereby set aside declaring the same to have been passed illegally being result of failure of jurisdiction vested in the Courts below and as such being of no legal effect; consequently, the application under order VII Rule 11 C.P.C. filed by the petitioner is accepted and the plaint of the respondent s suit is rejected. MH/A-62/L Petition allowed.