2016 PLP 1514 (MLD)

CH. MUHAMMAD IBRAHIM ZIA, J.

This appeal by leave of the court is addressed against the judgment of the High Court dated 18.9.2013, whereby appeal filed by the appellant, herein, has been dismissed.

2. The precise summary of the facts as enumerated is that the plaintiff-appellant filed a declaratory suit along with perpetual injunction in the court of Senior Civil Judge, Mirpur on 17.7.2010. It is alleged in the suit that the plot measuring 5 marlas situated in Sector D/1, Mirpur was allotted to him by MDA on 7-3-1965. The possession of the same was handed over to him which was under his possession. He has constructed a house over the said plot and is residing therein. It is also alleged that he has also constructed a room adjacent to the plot along with bath room over the land in dispute. The land in dispute is under the possession of the plaintiff-appellant. During his absence, the defendant-respondents Nos. 3 to 8 and the father of defendant-respondents Nos. 1 and 2 with the collusion of MDA, included the land in dispute in their plot and snatched the room and bathroom forcibly.

3. The trial Court, after necessary proceedings rejected the suit under Order VII Rule, 11 of the Civil Procedure Code, vide judgment and decree dated 30-11-2011. The plaintiff-appellant challenged the judgment and decree dated 30.11.2011 through an appeal before the District Judge, Mirpur on 06.01.2012. The learned District Judge Mirpur, concurred with the findings recorded by the trial Court. The plaintiff-appellant filed second appeal before the High Court to assail the judgments of the courts below which also met the same fate on 18.9.2013. the plaintiff-appellant has now approached this Court to challenge the validity of the judgment through the instant appeal.

4. Mr. Muhammad Riaz Inqilabi Advocate, the learned counsel for the appellant argued the case at some length. He submitted that the appellant has filed suit for declaration and perpetual injunction. Accordingly to law, such suit can be filed whenever eventuality arises. The courts below have misconceived the facts and rejected the plaint under the provisions of Order VII Rule 11 of Civil Procedure Code, merely on the ground that the previous application filed in the suit for arraying party has been dismissed, therefore, the plaintiff has got no cause of action. The suit in which the application for arraying the party was filed has already been dismissed by the trial Court. The respondents have not challenge the trial Court's order, thus, dismissal of the suit has attained finality. In this state of affairs, when the original suit has been dismissed, the question of arraying party becomes irrelevant. He further submitted that the present suit has been filed on different grounds and cause of action. The courts below have failed to properly appreciate the factual and legal proposition and rejected the plaint in summary manner which has resulted into miscarriage of justice. Therefore, the judgments of the courts below are not maintainable.

5. Conversely, Raja Khalid Mehmood Advocate, the learned counsel for the defendant-respondents submitted that the appellant has failed to justify his application for arraying him as party in the previous suit filed by respondents. He submitted that due to rejection of the application, the appellant is debarred to file fresh suit in relation to the same subject matter. He forcefully argued that the courts below have passed legal orders based upon due appreciation of the plaint and all other relevant material. However, he admitted the factual proposition that the suit in which application was made for arraying party, has been finally dismissed by the trial Court and the order has attained finality. He submitted that no question of law is involved, hence, this appeal has no merits and the same is liable to be dismissed.

6. We have considered the arguments of learned counsel for the parties and also perused the record made available. The sole proposition involved in this case is rejection of the plaint under the provisions of Rule 11 of Order VII of Civil Procedure Code. According to hereinabove stated facts, the plaint in this case has been rejected on the ground that the plaintiff is some earlier case filed an application for impleading him as defendant which was rejected by the trial Court. The rejection order of the trial Court being affirmed by the appellate courts has attained finality. In this case, neither the trial Court nor the appellate Courts have properly appreciated the contents of the plaint or discussed the same in their judgments. It will be useful to reproduce here the prayer clause of the plaint, which reads as follows:-- According to the statutory provisions of Rule 11 of Order VII, C.P.C., the main consideration for rejection of the paint is contents of the plaint. It will be useful to reproduce here the provisions of Rule 11 Order VII of C.P.C., which reads as follows:-- "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 any law." As the clause (a) of this rule clearly speaks that where the plaint does not disclose the cause of action it can be rejected. Thus, for rejection of the plaint is the statutory requirement that the court should have proper appreciation of the contents of the plaint. While applying these statutory provisions, there is a chain of authorities of the Superior Courts that for rejection of the plaint under Rule 11 Order VII of C.P.C. the main consideration is contents of the plaint. After application of the judicial mind and due appreciation of the plaint, if it does not disclose any cause of action the same can be rejected. In this regard reliance can be placed on the judgment of this Court reported as Muhammad Younas Arvi v. Muhammad Aslam 2012 CLC 1445, the relevant portion of which is reproduced as under:-- " .. There are plethora of judgments on this legal proposition, however, the survey of case law reveals that for rejection of plaint under provisions of Order VII, Rule 11, C.P.C., the main consideration is the contents of plaint or keeping in view the peculiar facts of the case some undisputed or admitted material or documents available, which according to the nature of the averments of the plaint can be considered as a part of plaint may also be considered. When on this touch stone the present case is judged, we don't feel any hesitation in holding that appreciation of the averments of the plaint and the documents annexed with it do not help us to draw the conclusion that the plaintiffs have no cause of action or the suit is barred by law." This principle of law has been consistently enunciated by this Court in number of judgments, the latest of which are the cases titled M. Abdul Rehman Abbasi and others v. Abdul Waheed and others (Civil Appeal No.223 of 2013 decided on 15.10.2014) and Syed Hassan Gillani and others v. Khawaja Ghulam Nabi and others (Civil Appeal No.35 of 2014 decided on 12.01.2015).

7. In our considered view, in this case neither the courts below have made proper appreciation of the contents of the paint nor the same has been discussed. The plaint has been rejected mainly on the ground of rejection of the application filed by plaintiff-appellant for impleading him as party in some previous case. Thus, the order of rejection of plaint is lacking proper appreciation of the contents of the plaint according to the spirit of the statutory rules. Hence, the same is not speaking one and not maintainable. Consequent to the above stated reasons all the orders of Courts below are set aside and the case is remanded to the trial Court with the direction to make re-appraisal of the plaint according to the spirit of the statutory provisions, record speaking order and act according to law. The appeal is accepted in the above terms with no order as to costs. ZC/15/SC(AJ&K) Case remanded.