1999 PLP 1786 (MLD)

(ii) That the agreement involved a consideration of Rs.25,00,000 and, as such, the same was compulsorily registrable and without registration it would not create any right, title or interest whether vested or contingent in the property in dispute; and (iii) That the agreement in dispute was unilateral because it had not been signed by the plaintiffs/vendees in token of its acceptance and on the face of it, it was not enforceable in law.

6. After thoroughly examining the facts and circumstances of the case in the light of the case-law cited at the Bar from both the sides, I am of the convinced opinion that the learned Civil Judge was fully justified in rejecting the I application under Order VII, Rule 11, C.P. Code and to me it appears that the defendant has all along been trying to prolong the proceedings by bringing the matter to the High Court time and again. It would have been much better for her to produce her evidence and then enable the learned Civil Judge seized of the matter to dispose of the suit on merits after taking into consideration all the relevant facts and the pleas raised by both the parties, in the light of the evidence available on record. I find myself in total agreement with the learned counsel for the respondents that the rejection of plaint under Order VII, Rule 11, C.P. Code is contemplated at a stage when the Court has not recorded any evidence in the suit. The following observations 'made by his lordship Mr. Saiduzzaman Siddiqui, J., in Jewan and 7 others v. Federation of Pakistan through Secretary, Revenue, Islamabad and 2 others (1994 SCMR 826), relied on by both the parties, can be referred to with advantage:-- "The rejection of plaint under Order VII, Rule 11, C.P.C is contemplated at a stage when the Court has not recorded any evidence in the suit. It is for this reason precisely, that the law permits consideration of only averments made in the plaint for the purpose of deciding whether the plaint should be rejected or not for failure to disclose cause of action or the suit being barred under some provision of law. The Court while taking action for rejection of plaint under Order VII, Rule 11, C.P.C. cannot take into consideration pleas raised by the defendant in the suit in his defence as at that stage the pleas raised by the defendants are only contentions in the proceedings, unsupported by any evidence on record. However, if there is some other material before the Court apart from the plaint at that stage, which is admitted by the plaintiff, the same can also be looked into and taken into consideration by the Court while rejecting the plaint Order VII, Rule 11, C.P.C. Beyond that the Court would not be entitled to take into consideration any other material produced on record unless the same is brought on record in accordance with the rules evidence. There is marked difference between the scope of proceeding of an application under Order XXXIX, Rules 1 and 2, C.P.C., filed f. the plaintiff for 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 the plaint or the plaint being barred under some provision of law. In the former case, the Court while deciding the application for grant of temporary injunction ascertains existence or otherwise of a prima facie case, balance of convenience and the possibility of irreparable 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 proceeding under Order XXXIX, Rules 1 and 2, C.P.C., the Court is not only entitled to look into the pleadings of the plaintiff and documents filed by him in support of the case but it can also take into consideration the documents of 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 provision of law, the extent of examination of relevant facts by the Court to reach these conclusions 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 reason for this different approach while rejecting a plaint under Order VII, Rule 11, C.P.C. is quite obvious. In the former proceedings (under Order XXXIX, Rules 1 and 2, C.P.C.) even if the Court reaches the conclusion that the plaintiff has failed to make out a prima facie case, it can only refuse to grant temporary injunction and reject the application under Order XXXIX, Rules 1 and 2, C.P.C but this rejection cannot result in the dismissal of the suit which proceeds to trial notwithstanding a finding by the Court that the plaintiff has failed to make out a prima facie case for grant of temporary injunction. On the contrary, if the Court reaches the conclusion that the plaint failed to disclose any cause of action or suit appears to be barred under some law, the proceedings come to an end immediately and the plaintiff is non-suited before he is allowed an opportunity to lead evidence and substantiate his allegation made in the plaint. The rejection of plant at a preliminary stage when the plaintiff has not led any evidence in support of his case, is possible only if the Court reaches this conclusion on consideration of the statements contained in the plaint and other material available on record before the Court which the plaintiff admits as correct". The concluding sentence is very meaningful. The rejection of plaint at a preliminary stage when the plaintiff has not any evidence in support of his case, is possible only if the Court reaches this conclusion on consideration of the statements contained in the plaint and other material available on record before the Court which the plaintiff admits as correct. In the judgments cited at the Bar by the learned counsel for the petitioner i.e. Hakim Muhammad Buta and another v Habib Ahmad and others (PLD 1985 Supreme Court 153), Diamond Rubber Mills v. Pakistan Television Corporation Ltd. and 2 others (1989 CLC 1989), Messrs Abdul Hamid v. Board of Intermediate and Secondary Education (1991 MLD 672), Muhammad Yasin Khan and 4 others v. Azad Government of Jammu and Kashmir through Chief Secretary and 3 other (1991 MLD 2295), National Development Finance Corporation through Mumtaz Hussain, Assistant Vice-President/Branch Manager, Mirpur v. M/s. Leepa Shoes Ltd. Mirpur through Shaukat Ali, Managing Director (1992 MLD 474), Asghar Ali v. P.K. Shahani and 2 others (1992 CLC 2282), Agra Cooperative Housing Society Limited v. Syed Akhtar Ali and others (1994 MLD 1747), Jewan and 7 others v. Federation of Pakistan through Secretary, Revenue, Islamabad and 2 others (1994 SCMR 826) (referred to above), Shah Muhammad and others v. Central Government and others (1998 SCMR 341) and Rashid Ahmad v. Federation of Pakistan through Secretary, Ministry of Communication (Communication Division), Islamabad and another (1998 SCMR 405), I am afraid, i have not been able to find out any material in support of the contention of the learned counsel for the revision petitioner that the learned Civil Judge should have rejected the plaint on the material available before him. No doubt matter of limitation is not left to pleadings of the parties and duty is also imposed on the Court itself to examine this aspect. It is given in Hakim Muhammad Buta and another v. Habib Ahmad and others (PLD 1985 Supreme Court 153) that the provisions of section 3 of the Limitation Act are mandatory in nature and if from the statement in the plaint the suit appears to be barred by limitation, the plaint shall have to be rejected under Order VII, Rule 11, C.P. Code. In the present case, however, the things are different. A careful reading of the contents of paras. 3 and 4 of the plaint reveal that as per the allegation of the plaintiffs they had been repeatedly requesting the defendant to receive the remaining amount and to transfer the land in their favour but she remained putting them off saying that she intended to purchase some land and in case she accepted the balance of amount, the said money shall be spoiled by her relatives. It is also claimed by the plaintiffs that the defendant and her mother stayed with plaintiff No.2 at Karachi about 2 years back (before the institution of the suit) when they were on their way for the performance of Haj and that they promised that after coming back they would do the needful but in-vain. All these assertions in the plaint can be looked into after both the parties have led their evidence thereon. In Diamond Rubber Mills v. Pakistan Television Corporation Ltd. and 2 others (1989 CLC 1989), it was held that when at any given time, cause of action ceases to subsist or bar under any law comes into operation and that position is discernible from the plaint, recourse to Order VII, Rule 11, C.P. Code can be taken. It was further held that upon deletion of main party to the suit when hardly any cause of action survived and what relief remained was incoherent one, bar under Order VII, Rules 7 and 8 would come into play. There can bardly be any cavil with the conclusion drawn in this judgment. In Messrs Abdul Hamid v. Board of Intermediate and Secondary Education (1991 MLD 672), it was laid down that plaint could be rejected on the ground of res judicata and bar of limitation. Similarly in Muhammad Yasin Khan and 4 others v. Azad Government of Jammu and Kashmir through Chief Secretary and 3 others (1991 MLD 2295), it was laid down that where Court was satisfied on basis of material placed before it that suit was ultimately to fail, Court should not drag the parties just for the reason that formalities of written statement, issues and evidence should first be completed. It was further held that plaint should be rejected as barred by res judicata where the trial Court has been appraised of the fact that subject- matter of dispute of the suit was earlier adjudicated by the competent Court between the same parties and the plaintiff had deliberately concealed and suppressed facts of earlier litigation and was inspired by vexatious motives with the design of harassing and compelling defendants for abandoning their claim. In National Development Finance Corporation through Mumtaz Hussain, Assistant Vice-President/Branch Manager, Mirpur v. M/s. Leepa Shoes Ltd., Mirpur, through Shaukat Ali, Managing Director (1992 MLD 474), it was held that the approach of the Court was erroneous; that rejection of plaint could not be sought prior to filing of written statement and that the Court's attention could be invited for scrutiny of plaint even prior thereto. In Asghar Ali v. P.K. Shahani and 2 others (1992 CLC 2282) it was laid down that where suit was barred under any law, and such bar was clearly deducible from bare reading of plaint it would not be necessary that an application under provision of Order VII, Rule 11, C. P. Code be made and the Court has power and jurisdiction to reject the plaint even at interlocutory stage of considering grant of temporary injunction. It was after taking into consideration all the evidence available on record and while discussing issues in the case that in Agra Cooperative Housing Society Limited v. Syed Akhtar Ali and others (1994 MLD 1747) it was observed that plaintiff (vendee) himself failed to perform his part of the contract which he was required to have performed within stipulated time of three years and, as such, the suit stood barred by limitation. In Shah Muhammad and others v. Central Government and others (1998 SCMR 341), plaintiffs could not controvert factual findings and it was held that the plaint was rightly rejected. Leave to appeal was, therefore, refused. Similarly in Rashid Ahmad v. Federation of Pakistan through Secretary, Ministry of Communication (Communication Division), Islamabad and another (1998 SCMR 405) an admission made by the petitioner was held to have knocked out case of petitioner completely and it was observed that the trial Court was fully justified to bury at inception still born suit so that no further time was consumed in fruitless litigation.

7. A cursory glance through these judgments cited at the Bar by the learned counsel for the petitioner, thus, leads me to conclude that the petitioner has not been able to make out a case for rejection of the plaint in the facts and circumstances of the case in hand. In Principal, Higher Secondary School, Oghi v. Mir Afzal (1995 CLC 525) it was held that plaint should not be rejected when objections huge been reduced into issues and partial evidence of plaintiff has already been recorded. In such case, it would be appropriate that case is decided on merits after recording evidence of both parties. In Muhammad Ramzan v. Sargodha Textile Mills Ltd (PLD 1997 Azad J&K 1), Mr. Gul Zarin Kiani J., who had disposed of Messrs Abdul Hamid v. Board of Intermediate and Secondary Education (1991 MLD 672

relied on by the learned counsel for the petitioner) observed that resection of plaint would neither be proper nor legal when issues were already settled plaintiffs had concluded their evidence and defendant was to lead his evidence, which proposition is on all fours, with the facts of the case in hand. Similarly in Abdul Waris v. Muhammad Yousaf (PLD 1997 Supreme Court 366), relevant observations in Haji Allah Bakhsh v. Abdul Rehman (1995 SCMR 459) were reproduced and it was held that defendant would be free to raise whatever legal or factual pleas were available to him to show that suit was not maintainable but rejection of plaint could not have been sought on those grounds if it could not have been said that the plaint did not disclose any cause of action or that relief claimed was undervalued and the plaintiff failed to correct the valuation in spite of the time fixed by the Court or the plaint was written on 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 statement in the plaint by any law. In Begum Masooda Abdul Haque v. Messrs. Shan-e-Mustafa Productions, Lahore and another (PLI 1985 Lahore 91) it was laid down that general policy of law is that civil suits be decided on merits in accordance with the procedure laid down for their trial in Civil Procedure Code after framing necessary issues and affording proper opportunities to the parties to lead necessary evidence and that the plaint should not be rejected under Order VII, Rule 11, C.P. Code unless the case falls strictly within the ambit of the said rule.

8. The matter has further been set at rest by what has been laid down in Muhammad Zaki and others v. Muhammad Taqi (PLD 1995 Karachi 416) in which it is held as under:-- "As regards the provisions of Order 14, Rule 2, C.P.C., it is within the discretion of the Trial Court to settle the preliminary issues of law only if it is of the opinion that the entire suit can be disposed of on hearing of such issues. However, if the trial Court is of the opinion that it would be necessary to proceed with the issues of facts also then the trial Court may settle the issues arising out of the pleadings and proceed to record the evidence if necessary and to give final adjudication." It was added that the order of the learned trial Court to record evidence pertaining to issues raised by the parties in their pleadings would not be open to interference by High Court in exercise of its revisional jurisdiction under section 115, C.P. Code.

9. The practice of deciding causes in parts has always been deprecated because this results in frequent remands and citizens lose confidence in the Courts due to inordinate delay in disposal of their cases as held in Sh. Haji Ijaz Ahmad v. Inam Naqshbandi (1995 CLC 101).

10. The agreement to sell merely creates a right to obtain another document which will when executed create a title and as per the assertion of the learned counsel for the respondents is not registrable. But this aspect of the case shall also have to be looked into in detail by the learned Civil Judge when disposing of the matter on its merits.

11. After looking into all the aspects of the case at a bit length, I am of the considered opinion that this revision petition is without merit and has obviously been filed in order to prolong the proceedings on one pretext or the other. It is, If therefore, liable to be dismissed and the same is hereby dismissed with costs. A.A./P-49/L Petition dismissed