P L D 1992 Lahore 363 (PLP)

This civil revision has arisdn out of a suit brought by respondents Nos.1 to 9, Mst. Hameeda Begum and others, against the petitioner, Ghulam Rasool, and respondent No. 10 Muhammad Sarwar. In the said suit, in which the respondent No. 10 and the petitioner were defendants Nos. I and 2 respectively, the validity of a sale‑deed had been challenged by respondents Nos. I to

9. These respondents were plaintiffs therein. Besides the said defendants, one Ismail was defendant No. 3 in the suit but as, process fee had not been deposited for his service, the suit was dismissed against him. The petitioner, who was in fact, the contesting defendant, made an application for rejection of the plaint stating that the plaintiffs in the. suit had executed a document known as TASHAEH NAMA in which they had ratified the sale deed in' question. The said TASHAEH NAMA was a registered deed which had been placed on record by the petitioner (defendant No. 2). The Civil Judge, who was seized of the suit, accepted the application of the petitioner and injected the plaint, under Order VII, rule 11, of the Code of Civil Procedure, with the following observations:‑‑ "Copy of the impugned sale‑deed date * d 15‑2‑1989 and agreement sell dated 1.2‑12~1988 in favour of defendants Nos. 2 and 3 respectively have also been placed on record. The perusal of the Correction deed ('Tesih Nama') dated .14‑9‑1989, roves that the plaintiffs have entered into a Correction deed ('Tesih Nama') with defendant No. 2 and have rectified the impugned sale‑deed executed in favour of defendant No.2 by defendant No.

1. As such the cause of action against defendant No.2 has ceased to exist as defendant No. 1 is a pro forma defendant and suit against defendant No. 3 had already been dismissed vide order dated 6‑2‑1990 by this Court for non‑deposit of process fee. This Correction deed ('Tesih Nama') is a duly registered public document and presumption of truth s attached to it. This Correction deed ('Tesih Nama') dated 14‑9‑1989 has not been challenged by the plaintiffs so far."

2. Plaintiffs in the suit, therefore, went in appeal before an Additional District Judge. The learned Additional District Judge accepted the appeal, set aside the judgment and decree passed by the learned Civil Judge and remanded the suit to him for proceeding further in accordance with law. ‑3 View taken by the learned Additional District Judge was that the TASHEH NAMA was a material extraneous to the contents of plaint and, therefore, the trial Court was precluded from taking that document into consideration, for rejecting the plaint. Further reasoning of the learned appellate Court for accepiing the appeal makes the following reading:‑‑ "The other aspect of the case is that the learned trial Court observed that TASHEUI NAMA was not challenged by the appellants in any Court. Since the said document is a registered public document and presumption of truth is attached to it hence appellants have no case, is not tenable. The presumption of truth attached to this document is rebuttable and appellants while submitting written reply to the application under Order V11, rule 11, C.P.C. categorically asserted that the TASHER NAMA was a forged document and separate proceedings are being taken in this respect. It is true that learned trial Court, without having any evidence on record, admitted the genuineness of contentions raised by defendant No. 2 and skipped over the contentions of appellants that the said document is forged one. The case‑law referred by learned counsel for the respondent No.2 is not applicable in the instant case. Since it cannot be said at this stage that the contentions raised by learned counsel for the appellants are mere technicalities and suit is ultimately failed."

4. Feeling aggrieved by the order of the learned Additional District Judge, the petitioner has come up in revision to this Court.

5. It was contended by learned counsel for the petitioner that according to latest law on the subject, material other than the plaint can also be taken into account for rejecting the plaint under Order VII, rule 11, of the Code of Civil Procedure, and, therefore, the learned Additional District Judge had erred in proccdding on the premises that the said TASHEH NAMA, produced by the petitioner, who was the contesting defendant, could not be taken into consideration. In this" regard, reliance was placed by him on Nazecr Ahmad and others v. Ghulam Mehdi and others 1988 SCMR 824, Muhammad Akhtar etc. v. Abdul Hadi etc. 1981 SCMR 878 and Mian Muhammad Akrarn and others v. Muhammad Rafi 1989 CLC 15 (Lahore).

6. On the other hand, it was contended by the learned counsel for the respondents Nos. 1, 3, 4 and 5 that since the plaintiffs in the suit had raised the plea that the TASHEH NAMA was a fictitious document, the plaint could not be rejected by the learned trial Court without satisfying itself that the said document was genuine.

7. It is true that ac‑cording to the trend of the latest authorities, documents other than the plaint can be taken into consideration for rejecting a plaint but such documents cannot be readily acted upon if their validity is questioned by the plaintiff. In the instant case, as pointed out by the learned Additional District Judge, the plaintiffs, who arc respondents Nos. 1 to 9, before me, had, in their reply to the application of the petitioner (defendantNo. 2), for rejection of plaint categorically asserted that the TASHEH NAM was a forged document and that separate proceedings were being taken out in that respect, but despite all this the learned Civil Judge relied on the TASHEH NAMA and reached the conclusion that in view thereof the plaintiff had no cause of action. Although the TASHEH NAMA was a registered document yet the plaintiffs were not precluded from producing evidence to substantiate their plea that it was the result of forgery. Proper course for the learned Civil Judge was, therefore, to frame an issue in regard to validity of the TASHEH NAMA and record parties' evidence thereon before acting upon it. He proceeded with undue haste in non‑suiting the plaintiffs on the score of said TASHEH NAMA the validity whereof had been challenged by the plaintiffs. The Iearned Additional District Judge was, therefore, justified in disagreeing with the learned trial Court.

8. What emerges from the above discussion in that the order of the learned Additional District Judge is not open to any legitimate exception. This civil revision is, therefore dismissed with no order as to costs.

9. The parties shall now appear before the learned trial Court on 16th June, 1992 to enable it to proceed further with the suit in accordance with law. passed on basis of such document even if defendant had admitted, his liability [p. 370] D AA./G‑57/L Revision dismissed.