2014 PLP 154 (YLR)

MAZHAR ALAM KHAN MIANKHEL, J.

Through this civil revision under section 115 of C.P.C., the petitioners have challenged the order of learned Civil Judge-XXII, Peshawar dated 4-7-2011 whereby their application under Order VII Rule 11, C.P.C. was dismissed.

2. Concise facts of case are that plaintiffs instituted a suit for specific performance coupled with permanent injunction and recovery of Rs.20,00,000 as damages against the defendants for violation of the agreement, regarding suit property fully described in the plaint. Plaintiffs averred in the plaint that a compromise agreement/arbitration award was reached between the parties on 18-6-1998 before the Court of learned Senior Member Board of Revenue regarding suit property and in pursuance of that agreement, plaintiffs handed over possession of land measuring 24 Kanals to defendants. Plaintiffs next alleged that they asked the defendants to perform their part of agreement and transfer land measuring 46 Kanals, 2-1/2 Marlas in their favour but they used delaying tactics and ultimately refused to act upon the settlement so reached. Defendants were put on notice who attended the Court. Defendants 1 to 5 submitted an application for rejection of plaint under Order VII, Rule 11 of C.P.C. but their application was rejected on 4-7-2011. They preferred appeal their against in the Court of Additional District Judge, Peshawar but the same was returned in original to them because of lack of pecuniary jurisdiction. Hence, this revision petition.

3. Learned counsel for the petitioners contended that the impugned judgment and order of the learned forum below is against law and facts; that the learned Court has wrongly observed that for the rejection of plaint only the contents of the plaint have to be considered; that the learned Court failed to appreciate the fact that the matter had been decided by the arbitrator where against an application should have been filed within thirty days but the respondents instead of doing so, have filed the instant suit which is hopelessly time-barred and as such is not maintainable; that the learned Court below fell into error by observing that question of limitation is a mixed question of law and fact and cannot be resolved without recording of evidence and asked for the acceptance of this revision petition, by allowing the application under Order VII, Rule 11, C.P.C. for the rejection of plaint.

4. As against that, learned counsel for the respondents while supporting the impugned order argued that the same is quite in accordance with law and is based on cogent reasons and warrants no interference by this Court in its revisional jurisdiction.

5. Arguments of the learned counsel for the parties were heard and record of the case was perused.

6. Perusal of record would reveal that plaintiff/respondents had filed a suit for specific performance on the strength of an arbitration award/compromise deed dated 18-6-1998. The suit was filed on 25-3-2011. Petitioners instead of filing written statement, filed an application for rejection of plaint under Rule 11 of Order VII of C.P.C. The trial Court, after hearing, dismissed the application vide impugned order dated 4-7-2011.

7. The impugned order would reveal that trial Court dismissed the application on three grounds i.e. (i). that averments made in the plaint alone has to be considered; (ii). that the civil Court is the proper and appropriate forum for filing a suit for specific performance; (iii). that the question of limitation is always considered as mixed question of law and fact, requiring recording of evidence for its determination.

8. As far as the first question is concerned, no doubt; that averments made in the plaint are of prime consideration for determining the disclosure of cause of action but this alone is not the sole criteria for the purpose. It is by now settled proposition that the documents available with the plaint can also be looked into for determining the disclosure of cause of action. Even the written statement and the documents brought on the record by the defendant can also be considered and it depends on the facts and circumstances of each case. The question of rejection of plaint can even be considered at any stage of the proceedings. The moment cause for rejection of plaint appears, the plaint should be rejected and similarly it can be rejected even at appellate and revisional stage. So, the scope of Rule 11 of Order VII of C.P.C., which apparently appears to be very limited but the matters involving application of Rule 11 ibid be dealt with in accordance with the law laid down by the superior Courts of the land and the purpose behind the same is just to protect the defending party from the agonies of the protracted trials in the civil matters. Besides the above, it also saves the precious time of the Courts of law. But the exercise of jurisdiction under the above provision of law must be very careful and it should be exercised only when the Court comes to the conclusion that even if the averments made in the plaint are proved, the plaintiff would not be able to get any relief or no useful purpose would be achieved by keeping the suit pending. Reliance in this regard can be placed on the cases of Nazeer Ahmad and others v. Ghulam Mehdi and others (1988 SCMR 824), Ghulam Sarwar v. Mst. Sultan Bibi and others 1989 MLD 4873, Muhammad Ali and another v. Naziran Bibi and others 2002 YLR 1463, Port Services Company Ltd. v. Port Services (Pvt.) Ltd. through Chief Executive and others (2006 CLC 303), Jewan and 7 others v. Federation of Pakistan through Secretary, Revenue, Islamabad and 2 others (1994 SCMR 826), S.M. Shafi Ahmad Zaidi through legal heirs v. Malik Hassan Ali Khan (Moin) through legal heirs (2002 SCMR 338). The trial Court while dismissing the application, in a very cursory, slipshod and thoughtless manner concluded that only averments made in the plaint have to be seen. When it appears to the Court that the suit would fail ultimately, then any further exercise in the matter would be nothing less than a futile attempt and this opinion can be made by considering material available on the record other than the plaint. The suit of plaintiff/respondents for specific performance was on the strength of a document which was basically a compromise in legal proceedings before Member Board of Revenue reached way back in June, 1998. If for the sake of arguments, it is considered as an agreement then, it was executed in the year 1998 and till the filing of present suit on 25-3-2011, the plaintiff/respondents failed to ask for its compliance and filed instant suit after filing of application for partition.

9. The other reason which prompted the trial Court to dismiss the application was that of limitation. No doubt that the question of limitation is normally considered as a mixed question of law and facts and its determination requires recording of evidence but not in all cases: The question of limitation is also clear in this case and it would call for no evidence. If for the sake of arguments, we consider it an agreement and the plaintiff/respondents have to derive their rights from this document then what were the reasons that the plaintiffs only opted to file suit for specific performance after 12/13 years and that too, after filing of partition application by the defendant/petitioners, which on the face of it is time-barred. The conduct of plaintiff/respondents appears to be based on mala fide. Admittedly both the parties are co-sharers and the plaintiff/respondents are enjoying the possession of the joint property. The plaintiff in the garb of alleged agreement, opted to block the way of defendant/petitioners to ask for proper partition. No doubt that a suit for specific performance has to be filed before a civil Court and civil Court is the only forum for such relief but instant case is not of the type. The very document reflects that plaintiff respondents claim some more share in the joint property which has not been determined in the document. Similarly there is also nothing on the record which could reflect that the property of the plaintiff/ respondents is recorded in the name of defendant/petitioners. Interestingly, record of the case is also silent regarding the part of agreement to be performed by the plaintiff/respondents by giving possession of "6 Jaribs" to the defendant/petitioners. Relevant portion of the document is reproduced below:-- A look at the contents would reveal that such a vague document cannot be made basis for specific performance of an agreement wherein rights of claiming party have yet to be determined and at the most the plaintiff/respondents, if had any claim of more share in the joint property, then they can seek the appropriate remedy before competent Court of law and every wrong entry in the Revenue Record, if any, as per their claim, would give them fresh cause of action.

10. Decision so arrived at by the trial Court is not in accordance with law and thus the trial Court has failed to exercise its jurisdiction in accordance with law which is amenable to the revisional jurisdiction of this Court. This Court, while exercising such jurisdiction can grant relief of rejection of plaint. Hence, this revisional petition is allowed by setting aside the order of the lower Court dated 4-7-2011 and thereby further accepts the application of petitioners under Rule 11 of Order VII of C.P.C. for rejection of plaint and the plaint stands rejected. AG/617/P Revision accepted.