2022 PLP 1392 (CLC)

MUHAMMAD IJAZ KHAN, J.

The petitioner has invoked the Constitutional jurisdiction of this Court under Article-199 of the Constitution of Islamic Republic of Pakistan, 1973, seeking the following relief; "It is, therefore, most humbly prayed that on acceptance of this writ petition the impugned judgment/order dated 17.08.2021 passed by the learned Additional District Judge-I/Judge MCAC, Swabi and Judgment/Order dated 11.3.2021 passed by the learned Civil Judge-VII Swabi, being respondents Nos.3 and 4 both may kindly be declared as without jurisdiction, illegal, void and of no legal effect may kindly be set aside and the suit filed by the respondent No.1/plaintiff being non-maintainable, may graciously be rejected with cost throughout. Any other remedy which this Hon'ble Court deem proper in the circumstances may also graciously be awarded in favour of the present petitioners."

2. The crux of the petitioner case is that respondent No.1 namely Fazal Sadiq filed a suit against respondent No.2 namely Ahmad Mustafa and the present petitioner for a declaration to the effect that he is owner in possession of the suit property and that the suit property do not fall within the leased area of the petitioner-Department. The said suit was contested by petitioner by filing written statement as well as an application under Order VII, Rule 11, C.P.C. for the rejection of the plaint on the ground that all areas having mines and minerals are deemed to be the property of the Government and that the plaintiff-respondent No.1 is not having a cause of action to file the instant plaint, by asserting himself to be the owner of the suit property.

3. The learned trial Court dismissed the application of the petitioner vide order dated 11.03.2021. Thereafter, petitioner preferred an appeal to the Court of Additional District Judge-I/Judge MCAC, Swabi, but the same was also dismissed vide impugned order dated 17.08.2021, hence, through the instant writ petition both these orders have been impugned before this Court.

4. Arguments heard and record perused with the able and valuable assistance of the learned counsel for the petitioner.

5. The contents of the plaint would reveal that the respondent-plaintiff has approached the Civil Court to protect his rights attached to the suit property by claiming that he is owner in possession of the suit property and that the petitioner, then, defendants may be restrained from illegal, unlawful and unauthorized interference in the suit property. The contents of the plaint are prima facie supported by revenue record, which does show that the suit property is an Agricultural property and that the names of the plaintiff, now respondent No.1, and others are recorded as owners in the column of ownership, therefore, the plaintiff has successfully "disclosed a cause of action" to institute the instant suit. While deciding an application filed under Order VII, Rule 11, C.P.C. for the rejection of the plaint, the Court has just to see the plaint that as to whether the plaintiff has "disclosed a cause of action" and at this earlier stage of proceedings the Court is not obliged to determine that as to whether the plaintiff is "having a cause of action or not", as the same is to be determined after recording of pro and contra evidence of the parties. It is by now a settled law that "disclosing a cause of action" and "having a cause of action" are two distinct phenomena and as such at the initial stage of proceedings, the plaintiff could not be non-suited for not having a cause of action, and thus the two Courts below have rightly dismissed the application of the petitioner.

6. At the time of deciding an application filed under Order VII, Rule II, C.P.C., for the rejection of the plaint, the Court has just to consider the "contents" of the plaint and every fact mentioned in the plaint has to be considered as true and correct and even the written statement or a plea taken in the written statement could not be taken into consideration. Even the fact/apprehension that the plaintiff may not ultimately succeed in establishing the averments made in the plaint, cannot be a ground for rejecting the plaint under Order VII, Rule 11, C.P.C. In this regard wisdom can be drawn from the judgment rendered by the apex Court in case titled "Jewan and 07 others v. Federation of Pakistan through Secretary, Revenue, Islamabad and 02 others" reported in (1994 SCMR 826), wherein it is held that; "The rejection of plaint under Order VII, Rule-II, C.P.C. is contemplated at a stage when the Court has not recorded any evidence in 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 under 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 of evidence." This Court too in identical matter in the case titled "Shehzada v. Khairullah and others" reported in (2012 CLD 758 Peshawar) has also held that; "Keeping the 'ratio decedenti' of the aforementioned judgments of the august Supreme Court, it would be safe to state that the Courts entertaining the application for rejecting of the plaint under Order-VII, Rule-11, C.P.C. has to take into account the plaint and not the stance taken by the defendants in their written statement, if the same was beyond the pale of what was contained in the plaint."

7. The scope of Order VII, Rule 11, C.P.C., is limited to situations, where the plaint does not disclose a cause of action or if the relief is under value and on being required by the Court to correct the valuation within a specific period, the plaintiff has failed to do so or if the relief claimed is properly valued, but, the plaint is written upon paper insufficiently stamped and in such eventuality too when the plaintiff fails to done away with the deficiency or if the suit appears from the statement in the plaint to be barred by any law. The learned counsel for the petitioner was asked that which of the clauses of Order VII, Rule 11 of the C.P.C. could hit the plaint of respondent No.1/plaintiff, but, he failed to come up with a legally justifiable answer.

8. Today, when the learned counsel for the petitioner was confronted that as to whether they have given any notice to the plaintiff-owner or as to whether they have notified the suit property as mines/lease area as required from them under Khyber Pakhtunkhwa Mineral Sector Government Act, 2017, their reply was in negative. When such being the position, petitioner could not make out any case for interference of this Court in the impugned order/Judgments dated 17.8.2021 and 11.03.2021 passed by two Courts below.

9. Even otherwise, two Courts below have concurrently discarded the plea of the petitioner and in a writ jurisdiction petitioner was required to show that the Orders/Judgments of the Courts below suffer from jurisdictional defect(s) or that the two Courts below have exercised their jurisdiction in an illegal and arbitrary manner or some material irregularities have been committed by the Courts below which would justify the interference by this Court in a petition filed under Article 199 of the Constitution of Pakistan, but, the same could not be established by the petitioner before this Court.

10. For what has been discussed above, the writ petition is misconceived and is hereby dismissed in limine. MH/126/P Petition dismissed. ***