1999 PLP 1236 (MLD)

4. Mr. Sardar Khan, the learned Counsel for the respondents, argued that according to the evidence produced by the plaintiff at the time of institution of the suit, both the plaintiff and the vendee-defendant were co-sharers and no other evidence was offered to substantiate the plaint. Both the Courts below, keeping in view the aforesaid evidence, came to the conclusion that the plaintiff had no preferential right, as such, the suit was correctly dismissed. It was also argued that the concurrent findings arrived at by both the Courts below are not assailable in second appeal.

5. I have heard the learned Counsel for the parties and also gone through the record. The trial Court as well as the first appellate Court rejected the suit on the ground that the plaint did not disclose any cause of action. To appreciate the proposition, it is essential to see as to what the 'cause of action' means. The term "cause of the action" refers to every fact which if traversed, it should be necessary for the plaintiff to prove in order to support his right to judgment and which, if not proved, gives the defendant a right to judgment. It means that whole of the material facts which it is necessary for the plaintiff to allege and prove in order to succeed. It does not refer to the evidence which is necessary to prove such facts, but to the fact which it is necessary to prove. In other words, it refers to the grounds on the basis of which the plaintiff asks for a favourable judgment. It is the bundle of essential facts which it is necessary for the plaintiff to prove before he can succeed. The proposition attracted the attention of the Supreme Court of Pakistan in the case, Said and others v. Fazal Hussain and others (PLD 1959 SC (Pak) 356) wherein the following observation was made.:- "The expression 'cause of action' means the totality of the material facts which it is necessary for the plaintiff to allege and prove in order to succeed." In another case, 'Muhammad Khalil Khan and others v. Mahboob Ali Mian and others' (PLD 1948 SC 131), the term "cause of action" was defined in the following words"- "--the bar under Order II, rule 2 refers entirely to the grounds set out in the plaint as the cause of action or, in other words, to the media upon which the plaintiff asks tile Court to arrive at a conclusion in his favour-"

6. Under Rule 11, of Order ", C.P.C., a plaint can be rejected if it does not disclose tile cause of action or the other necessary conditions envisaged, in, the aforesaid Rule, are not satisfied. It will be useful to reproduced the relevant Rule "R.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 correct 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 any law." The analysis of the aforesaid rule reveals that while looking the plaint from this angle,, it is the only plaint which has to be looked into and if the allegations maintained in the plaint, taken at their face value, reveal no cause of action, the plaint is to be rejected. Where the matter requires factual investigation, the plaintiff must be given an opportunity to substantiate his case and the plaint should not be rejected. If a plaint, prima facie, discloses a cause of action, it should not be rejected on a presumption that the plaintiff shall not be able to prove it. In other words, the plaintiff's suit cannot be dismissed without hearing the relevant evidence the plaintiff desires to produce. The Court should reject the plaint which is manifestly merit-less, vexatious and does not disclose a clear right to sue. Reliance in this regard may also be placed on 1987 CLC 2461 (Muhammad Hussain Khan v. Muhammad Din) and 1988 CLC 473 (S. Tariq Hussain v. The Estate Officer), wherein the following observations were made respectively:- (i)1987 CLC 2461 "We have no quarrel with the proposition that generally while determining the jurisdiction of a civil Court to entertain and decide upon a cause of action, the nature of the claim put forward by the plaintiff as his cause of action is to be looked into and the matter involved does not depend upon what the defendant may assert or asserts by way of defence and it would not matter if it turns out at the trial that the subject of contest between the plaintiff and defendant is not properly represented by the forum which the plaintiff has chosen..." (ii)1988 CLC 473 "

the Court while rejecting the plaint under Order VII, Rule 11, C.P,C, must confine itself to the consideration of averments made in the plaint.

7. In the present case, the perusal of the plaint shows that the plaintiff has given the grounds on the basis of which she asks for a favourable judgment which she has to prove in order to succeed. It may be mentioned that a party while disclosing a cause of action, must show from its plaint that it discloses a cause of action, but it is not required that it should place all evidence which it wants to bring on record through evidence. The bundle of facts alleged in the plaint are not to be confused with the evidence sought to be produced in order to prove those facts. The trial Court though framed issues on the controversy involved between the parties, but decided the matter without providing the parties an opportunity of bringing their evidence on record in support of their respective claims.

8. In view of the above discussion the judgments and decrees passed by the Courts below, are not maintainable which ate hereby set aside by accepting the appeal. The case is remanded to the trial Court which shall proceed with it in accordance with law. It may also be observed that the point raised by the learned Counsel for the respondents that the concurrent findings arrived at by the Courts below are not assailable in second appeal, is not found to have any substance in it as the findings suffer from illegalities and provide a cause to interfere in the circumstances. C.M.A./158/AJ&K Appeal accepted.