2006 PLP 2236 (YLR)

IJAZ-UL-HASSAN KHAN, J.

Hidayatullah, plaintiff instituted suit against Yaqoob Khan Marwat, defendant, the then Director, Anti-Corruption Establishment, Peshawar, seeking recovery of, Rs.10,00,000 as damages for mental torture and loss of reputation for maliciously involving the plaintiff in a false corruption case.

2. The facts which I have been able to gather from the record of the case are, that while posted as Engineer at Bannu, the residents of Sarwar Mama Khel, Tehsil Lakki Marwat, District Bannu, submitted an application to the Ministry of Interior and Director Anti-Corruption, Peshawar containing serious allegations of corruption and irregularities against the petitioner. An inquiry, in pursuance thereof, was conducted by the Sub-Inspector (Anti-Corruption Establishment) and the allegations were not proved and the Assistant Director Crimes (Anti-Corruption Establishment) recommended that the case be dropped against the petitioner. However, the respondent put the case to Anti-Corruption Committee No.1 for appropriate action. Finally, the petitioner having been found not guilty was exonerated of the charge.

3. The defendant in his written statement repudiated the allegations of the plaintiff and pleaded that suit was incompetent, not maintainable and barred under the expressed provisions contained in section 5 of West Pakistan Anti-Corruption Establishment Ordinance (Ordinance XX) 1961, read with section 42 of the Police Act, 1861.

4. Consequent upon moving of an application under Order VII, rule 11, C.P.C., the trial Court framed preliminary issues for adjudication as under: (1) Whether the suit is maintainable in its present form? (2) Whether the suit is barred by any law? (3) Relief.

5. The learned Civil Judge, Peshawar, seized of the matter, accepted the application and rejected the plaint by his order dated 10-7-1999, mainly on the ground that defendant having acted in his official capacity, cannot be prosecuted in any manner and suit was not maintainable. An appeal was preferred thereagainst, which did not bear fruit. The same was dismissed by learned Additional District Judge, Peshawar, vide judgment dated l 28-6-2004.

6. Feeling aggrieved thereby, the petitioner has approached this Court by filing instant civil revision under section 115, C.P.C., which is before me for consideration.

7. Mr. Muhammad Arif Khan, Advocate, appearing on behalf of the petitioner, contended, inter alia, that the judgments and decrees of both the Courts below are against law and facts of the case; that same have been recorded in a mechanical manner without recording evidence whereby mandatory provisions of law have been violated and that the Courts below have failed in appreciating the plea of the petitioner that all the proceedings taken up, acts done and order passed by the defendant were motivated by bad intention and ulterior motive, which disentitle him to the protection given by the relevant law. The learned counsel added that only bona fide acts/mistakes have been condoned by the relevant law and by ignoring the aforesaid legal position, the trial Court as well the appellant Court have failed in the exercise of jurisdiction so vested in the learned Courts. In the last limb of argument, the learned counsel reiterated that the appellate Court has erred, while holding that audit report also supported the allegations, while actually the audit reports held responsible the Sub-Divisional Officer, Sub-Engineer and Tube-Well Operator only. To augment the contentions, reliance was placed on Mst. Karim Bibi and others v. Zubair and others 1993 SCMR 2039; Muhammad Zaman and others v. Shah Wazir Khan PLD 2002 Peshawar 45 and Kanwar Qutubuddin Khan v. Karachi Development Authority through Director General CLC 2002 Karachi 634.

8. Mr. Abdul Samad Khan, Advocate, representing the respondent, on the other hand, fully supported the judgments and decrees of the two Courts below and reiterated that in order to re-invoke the applicability of Order YII, rule 11 (a), C.P.C., the Court has to look into the contents of the plaint only and has to examine the plaint on its face value. If the plaint by itself, indicates any infirmity in clauses (a) to (d) or rule 11, Order VII, then the Court should order rejection of plaint as the fruitless litigation required to be buried at its inception to avoid the wastage of time of Court and unnecessary harassment to opposite party. The learned counsel added that Court while rejecting the plaint under Order-VII, Rule 11 cannot take into consideration the plea of the defendant when such plea is disputed and denied by the plaintiff. To augment the contentions, reliance was placed on 1994 SCMR 826 and PLD 2002 Peshawar 45; Nazeer Ahmad and others v. Ghulam Mehdi and others 1988 SCMR 826 and 2003 YLR Peshawar 712.

9. Having considered the submissions of learned "counsel for the parties in the light of the material on record and the case law cited at the bar, I am of the view that the contentions of learned counsel for the petitioner carry weight and must prevail. No doubt it is true that the Court should reject a plaint which is manifestly meritless and vexatious and does not disclose a clear right to sue, as the fruitless litigation is required to be buried at its inception to avoid the wastage of time of Court and c unnecessary harassment to opposite party as held in PLD 2002 Peshawar 45, but the fact cannot be lost sight of that in the instant case, the plaint of the petitioner vividly discloses cause of action and the relevant law of damages is clearly attracted to the facts narrated in the plaint. It is duty of the Court before which a suit is instituted before issuance the summons to examine the plaint for the purpose of determining whether the pliant should be returned under rule 10 anti or rejected under rule

11. Ordinarily as soon as the cause of rejection appears, the plaint should be rejected straightaway, for such a suit should be taken off the file at its very inception and the plaintiff allowed opportunity to retrace his steps as permitted by rule 13 post. However, where issues have been framed, including one on the question of maintainability of suit, the parties must be allowed to lead evidence and the plaint cannot summarily be rejected. It is always the contents of the plaint that have to be kept in view and if their plain reading discloses a cause of action, the plaint cannot be rejected simply because quite c formidable objections are raised in defence, as held in 1986 CLC 1181. In this case, the averment made in the plaint is that the respondent allegedly involved the petitioner in a false case of corruption and damaged his reputation and caused mental torture, in which he was consequently exonerated. True he was consequently exonerated. True or false, the allegation apparently disclosed commission of a tortuous act on the part of the respondent and the petitioner was made to suffer for more than two years. He complained of agony and humiliation at the hands of the respondent and ostensibly could ask for re-compensation in the shape of damages. Since Issue No.1 had already been framed regarding this controversy, therefore, the trial Court committed an illegality by passing the impugned order for rejection of the plaint. The controversy could not be decided without recording evidence. Evidence should have been recorded thereon and thereafter it should have been decided. The learned trial Court after having reflected the said controversy in Issues Nos.1 and 2, should have decided the suit after recording evidence in order to do complete justice between the parties. It was observed in Irshad Ali's case PLD 1995 SC 629, that: "A party should not be denied a relief on account of technicalities in the procedural law, as the same is formed for the purpose of regulating the legal proceedings, they are extended and designed to foster the cause of justice rather than to defeat it."

10. It is settled principle of law that the rules framed in the Code of Civil Procedure are Rules made for the advancement of justice and they should not, as far as D possible be allowed to defeat the ends of justice, as held in and Muhammad Sarwar's case 1980 CLC 946.

11. Where the plaint does not disclose any cause of action, it has to be rejected and for this purpose only the plaint is to be looked into and nothing else. The Court should reject a plaint which is manifestly meritless and vexatious and does not disclose a clear right to sue. The rejection of plaint is possible at preliminary stage when plaintiff has not led evidence in support of his case. Court can reject the plaint only if Court reaches at such conclusion after considering statement made in plaint and other material available on record which plaintiff admits as correct.

12. In the result and for the foregoing reasons, this revision petition is accepted, judgments and decrees of both the Courts below are set aside and the case is remanded to the trial Court with direction to decide the same on merit, preferably within six months, after receiving the order of this Court. There shall be no order as to costs. The parties shall appear before the trial Court on 15-5-2006. The office is directed to send the record forthwith to the trial Court. H.B.T./101/P Revision accepted.