2014 PLP 1494 (YLR)

IKRAMULLAH KHAN, J.

Through the instant Civil Revision, the judgment dated 1-3-2012 of the learned Additional District Judge-III, Peshawar has been made impugned whereby the judgment dated 16-6-2011 passed by the learned Civil Judge, Peshawar was upheld in appeal filed by the petitioner.

2. On facts, the petitioner, through the institution of a civil suit, challenged the sale Mutation No. 3424 attested on 1-3-2001 pertaining to land Measuring 8 marla, therein Khasra No. 688 of Moza Landi Akhun Ahmed, Peshawar.

3. The claim of the petitioner was, that the said transfer of the land through the impugned sale mutation in favour of the respondent, by her son through the General power of attorney was result of fraud, misrepresentation and ineffective upon her rights of ownership.

4. The respondent, contested the suit and instead of submitting her written statement, preferred an application for rejection/dismissal of the suit on the ground that, the impugned sale mutation was valid and legal one, being effected by the real son of the petitioner, who was legally appointed attorney of the petitioner and was duly authorized to sell the disputed land.

5. On conclusion of hearing of the application the learned Civil Judge, Peshawar dismissed the suit of the petitioner thereunder the provisions contained in Rule 11 of Order VII of Civil Procedure Code, 1908.

6. On appeal, the learned Additional District Judge, Peshawar upheld the impugned judgment of Civil Judge and consequently dismissed it.

7. Being aggrieved by the impugned judgment, the petitioner has challenged the said impugned judgment by filing the instant revision petition, thereunder section 115 of the Civil Procedure Code, 1908.

8. The learned counsel who made appearance on behalf of the petitioner, made its respective submissions that, both the learned lower Courts have given elaborately, their views and findings on the power of attorney and the power entrusted to the attorney by the petitioner, as well as on the validity and legality pertained to the sale mutation, without, bringing on record, the strong reservations, exceptions, raised and alleged therein the pleadings of the petitioner, and that so, in absence of written statement and evidence in this regard. Further argued that, it is by now settled principle of law that for the purpose of rejecting a plaint, it would be the averments, allegations in a suit has to be looked upon and not the grounds, objections raised therein by the defence, termed the impugned judgment perverse and illegal one.

9. On the other hand, the learned counsel on behalf of the respondent defended the impugned judgment and contended that the suit of the petitioner was barred by law of limitation and the power of attorney on the basis of which the impugned sale mutation was made, is still intact and never been challenged by the petitioner, the suit has rightly been dismissed by both the learned Lower Courts.

10. I anxiously considered the arguments, being delivered by both the learned counsel and gone through the available record.

11. The provisions contained thereunder Order VII, Rule 11 Civil Procedure Code, 1908, reads as:

"

11. Rejection of plaint

The plaint shall be rejected in the following cases:

(a) Where it does not disclose a cause of action. (b) Where the relief claimed is under-valued, and the plaintiff on being required by the Court to connect the valuation within a time to be fixed by the Court, fails to do so; (c) Where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so; (d) Where the suit appears from the statement in the plaint to be barred by an law."

12. As evident from the bare perusal of the impugned judgment, that the suit was rejected, on the sole ground that petitioner had not challenged the subsequent periodical records whereof, the name of the respondent was incorporated in the column of ownership pertains to the suit property. Other grounds which were made, grounds for rejection of the suit, purely pertain to facts.

13. It could not be rebutted, that no evidence has been led by either party thereto the suit, nor any document, even the impugned sale mutation is legally brought on the record and duly exhibited, no reference shall be legally given in regard to the legality or validity of such documents. The findings of the learned lower appellate Court on merit of the sale mutation and power of attorney, is not more or less but sheer abuse of jurisdiction, could not be sustained. Insofar as, the other proposition of law that, without challenging the subsequent periodical record of rights, thereafter the sale mutations, a suit could not be instituted, is not backing by any valid law in this regard. It would be sufficient to challenge the original sale mutation and the first entry therein the revenue record, effected there through the impugned sale mutation.

14. It is settled law, that for the purpose of rejection of plaint only the averments of the plaint are to be looked into. Reliance be placed in this regard on case of Mst. Bano alias Gul Bano and others v. Begum Dilshad Alam and 4 others, (2001 CLC 88).

15. The petitioner has alleged and has seriously challenged the sale mutation, being result of fraud, as such require farther probe through recording of evidence and considering of other material available on record.

16. The Hon'able Karachi High Court in case of Haji Abdul Karim and 4 others v. Messrs Florida Builders (Pvt.) Ltd., Karachi reported (2009 YLR 451) had held as:-- "while considering application under Order VII Rule 11 Civil Procedure Code, 1908, only contents of plaint and other material available on record, which on its own strength is legally sufficient to completely refute the claim of the plaintiff, can be looked into and defence of defendant cannot be considered."

17. This Court in case of Muhammad Rahim v. Malik Daud Khan and 6 others (2011 CLC 490) has opined as:-- "Matters involving question of fact requiring proof through production of evidence should not be rejected summarily but after framing of issues and recording of evidence pro and contra."

18. The petitioner has filed suit for declaration on the ground that she was owner in possession of the disputed land and entries of sale mutation in favour of respondent were wrong and based on fraud. Facts alleged by the petitioner in her pleadings while the defence taken by the respondent that the impugned sale mutation was legally and validly effected by the attorney of the petitioner, had has valid power of attorney and was competent to mutate the disputed land make substantial dispute with mix question of law and facts, which required evidence and unless evidence was recorded, the dispute between the parties could not be resolved. Petitioner had properly pleaded the cause of action in the plaint and if the cause of action described in the plaint was taken to be true and correct, the suit was not devoid of cause of action. In such a case where controversial question of facts or law existed therein a suit, the provisions of Order VII, Rule 11, Civil Procedure Code, 1908 would not be invoked rather proper course for the Court in such cases was to frame issues on such questions and decide the same on merits in the light of evidence.

19. Keeping in view the aforesaid reasons, this Civil Revision is allowed and the impugned judgments of both the learned lower Courts are accordingly set aside.

20. The case is remanded back to the Trial Court to proceed from the stage, whereof it was discontinued on rejection of the plaint but strictly in accordance with law. AG/126/P Case remanded.