2005 PLP 492 (CLC)

(1) Shaukat Ali and others v. Jalal‑ud‑Din and others 1999 CLC 1396, (2) Maulana Nur‑ul‑Haq v. Ibrahim Khalil 2000 SCMR 1305 and (3) Sultan Habib and 10 others v. Mst. Walayat Begum and 10 others 2003 SCR 92.

6. We have heard the learned counsel for the parties and also gone through the record. The plaintiff‑appellant filed a declaratory suit along with the prayer that the sale‑deed may be cancelled as being illegal and ineffective against his rights. The respondents moved an application under Order 7, rule 11, C.P.C. for rejection of the plaint but the trial Court dismissed the same. However, a revision filed with the High Court was accepted and the plaint was rejected with the following observations:‑‑ "(6) The primary question requiring determination in this case is whether the plaint disclosed the cause of action or not? For determining the cause of action, the Court has to assume the averments of the plaint as correct and after this, if the Court reaches on the conclusion that no relief could be awarded to the plaintiff, then it can safely be said that the plaint does not disclose the cause of action and the same has to be rejected. The present suit was filed by the plaintiff under section 39 of the Specific Relief Act, for the cancellation of the sale‑deed. It stultifies me, that the plaint did not contain the year, month and date of the sale‑deed and mutation, as to when these were executed and sanctioned. The cause of action accrued to the plaintiff from the execution of the sale‑deed in question and the mutation is also based on the said sale‑deed but from the perusal of the plaint it could not be said that which of the sale‑deeds were challenged by the plaintiff. (7) As stated above, the execution of the sale‑deed bestows the cause of action upon the plaintiff and when no explanation about the sale‑deed is furnished in the plaint, then how relief could be given to him? The next question arises as to which of the sale -deeds shall be declared null and void by the Court. It would also not be out of place to mention here, that the plaintiff has produced his evidence, but he has not produced the copies of the sale‑deed. Thus, it can safely be said that' the plaint did not disclose any cause of action." To appreciate the proposition the relevant provisions of Order 7, rule 11, C.P.C. are reproduced:‑‑ "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."

7. The next question arises as to what cause of action means? The term cause of action refers to every fact which if traversed, it should be necessary for the plaintiff to prove in order to support his right. It means the whole of material facts which it is necessary .for the plaintiff to allege and prove, in order to succeed. Precisely, the term cause of action refers to the ground on the basis of which the plaintiff asks for a favourable judgment. A cause of action is the sum total of all those Allegations upon which the right to the relief claimed is founded. It includes every fact which it would be necessary to prove, if traversed, in order to enable a plaintiff to sustain his action. In determining as to what is a cause of action, one is not concerned as to what is the nature of the defence that may be set up, but he has only to see what is alleged in the plaint. The facts that are alleged in the plaint and which require to be proved without proof of which the plaintiff would not be entitled to a judgment constitute the cause of action. Every such fact which is necessary to prove, therefore, would form a part of the cause of action. It is, therefore, to be ascertained from the allegations in the plaint as to what is the cause of action in each case. The proposition came under consideration before this Court in a case titled Abdul Ghafoor & Brothers v. Natural Food and Beverage (Pvt.) Ltd. And 2 others 2001 YLR 3243 where the same was resolved in the following terms:‑‑ ".... The terms `cause of 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 and for this purpose, only the facts stated in the plaint are to be considered to determine whether they constitute a cause of action or not? .... (7) The expression `cause of action' used in the Code in its general sense, refers to and signifies averment of fact or state of facts, giving rise to a claim or right of the plaintiff, against the defendant, sufficient to enable a Court in rendering a judgment or to grant relief. It excludes relief sought for and plea of defendant. It may mean facts or allegations, contemplating a claim of right and infringement of a right." The point was debated before this Court in another case reported as Khadim Hussain v. Jamal Hussain and 2 others 1997 MLD 2952 where it was held as under:‑‑ ".... It may be pointed out that if a defendant seeks rejection of a plaint for the non‑disclosure of cause of action, he has to show that even if the allegations in the plaint are presumed to be true, the plaintiff was not entitled to any relief. In the instant case, it is not correct to suggest that even if the averments made in the plaint are presumed to be true, the plaintiff is not entitled to the relief claimed." The Supreme Court of India‑ in a case reported as T. Arvandandam v. T.V. Satyapal and another AIR 1977 SC 2421 resolved the proposition in the following words:‑‑ " .... if on a meaningful not formal reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under Order VII, rule 11, C.P.C. taking care to see that the ground mentioned therein is fulfilled. And, if clear drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under Order X, C.P.C. An activist Judge is the answer to irresponsible law suits. The trial Courts would insist imperatively on examining the party at the first hearing so that bogus litigation can be‑ shot down at the earliest stage. The Penal Code is also resourceful enough to meet such men, (Ch.XI) and must be triggered against them ...."

8. We have no quarrel with the proposition enunciated in the cases referred to by the learned counsel for the respondents where the proposition stood resolved in the manner as held in the cases referred to above, therefore, the case‑law does not help the respondents in any manner.

9. In the present case a perusal of the plaint shows that the plaintiff‑appellant has filed a suit for declaration to the effect that he is owner in possession of the suit‑land and a declaration was also sought for cancellation of the sale‑deed as being illegal and ineffective against his rights, therefore, the plaint does disclose the cause of action particularly when an amendment application to remove the defects, if any, was also moved as such there was no occasion for rejection of the plaint.

10. In view of the above, the appeal is accepted by setting aside the order passed by the High Court and the case is remanded to the trial Court to proceed with the same in accordance with law. H.B.T./135/SC(AJK) Case remanded.