2002 PLP 2571 (YLR)

Nemo for Respondents. Date of hearing: 13th June, 2002. NAZIR AHMAD SIDDIQUI, J.‑‑‑It is stated in the plaint by the plaintiff Khuda Bakhsh (hereinafter called the appellant) that his sister Mst. Zaineb Bibi, defendant No. 1 (hereinafter called respondent No. 1) orally agreed to sell the suit land measuring 16 Kanals (detailed in the plaint) for a consideration of Rs.4,00,000 (four lacs) which was paid on the date of agreement i.e., 26‑8‑2001. Pursuant thereto, possession of the suit land was also delivered by her to him. However, she later on transferred suit- land to defendant No.2 Ghulam Hussain (hereinafter called respondent No.2) vide Tamleek Mutation No. 1955 dated 8‑12‑2001, thus obliging the appellant to seek a declaration of ownership with possession of the suit land on the basis of oral agreement to sell and also that the said Mutation being collusive was inoperative qua his rights. By way of alternate relief, it has also been prayed that suit be decreed for the specific performance of the alleged agreement. Permanent injunction was also sought as a consequential relief for restraining the present respondents from causing any interference with the alleged possession of the appellant regarding suit‑land.

2. During the pendency of the suit, an application under Order VII, rule 11 of C.P.C. for rejecting the plaint of the appellant was moved and the same was allowed by the learned trial Court vide its order dated 6‑4‑2002, now assailed through the instant R.F.A. as the same amounts to a decree within the meaning of section 2(2), Civil Procedure Code.

3. The learned counsel for the appellant has made the following submissions:‑ (a) That on 6‑4‑2002, the learned Civil Judge was required to decide the application of the appellant moved under Order 39, rules 1 and 2, Civil Procedure Code seeking temporary injunction but instead of deciding the same, he rejected the plaint under Order VII, rule 11, Civil Procedure Code. Such a course was never approved by the superior Courts. Reliance has been placed on 1994 SCMR 826 (Jewan and 7 others v. Federation of Pakistan through Secretary, Revenue Islamabad and 2 others). Learned counsel has read the following lines from this judgment: "In the former proceedings (Order 39, rules 1 and 2, Civil Procedure Code) even if the Court reaches the conclusion that the plaintiff has failed to make out a prima facie case, it can only refuse to grant temporary injunction and reject the application but this rejection cannot result in the dismissal of the suit which proceeds to trial notwithstanding a finding by the Court that the plaintiff has failed to make out a prima facie case for grant of temporary injunction . . .. . . " (b) That in order to press into service the provision of Order VII, rule 11, Civil Procedure Code, averments contained in the plaint are to be presumed to be correct and nothing beyond the same can be looked into. Reliance has been placed on 1995 SCMR 459 (Haji Allah Bakhsh v. Abdul Rehman and others). The appellant has yet to prove his case through the evidence, so it was unfair as well as inequitable to non- suit him by invoking rule 11 of Order VII, Civil Procedure Code. Reliance has been placed on 2000 CLC 1673 (Miss Gul‑e‑Rana v. Muhammad Mansoor Khan and 4 others).

4. We have considered the submissions, perused the record and gone through the judgments cited at the bar.

5. With regard to (a) we have noticed that before the learned trial Court application' under Order VII, rule 11, Civil Procedure Code moved by the respondent was also pending for consideration and final disposal. As a matter of fact, learned trial Court decided the same after hearing the full- fledged arguments of learned counsel for the parties. So argument of the learned counsel on this score (a) is of no significance.

6. With regard to (b) it is true that there is no cavil to the proposition that a plaint can be rejected if its contents do not disclose a cause of action or on the face of it, suit is barred by any law or if the plaintiff fails to correct the valuation of the suit or to supply the requisite stamp paper for the Court‑fee within the time given by the Court. However, it is also equally true that "besides averments made in the plaint other material available on the record, which on its own strength was legally sufficient to completely refute the claim of the plaintiff, can also be looked into for the purpose of rejection of plaint. Reliance can safely be placed on 2002 SCMR 338 (S.M. Shafi Ahmad Zaidi, through legal heirs v. Malik Hassmi Ali Khan (Moeen) through legal heirs). Reference can also be made to case of Jewah (supra) referred to by the learned counsel wherein it has been ‑held rejection of plaint at preliminary stage when plaintiff has trot led any evidence support of his case is possible only if the Court reaches this conclusion consideration of the statements contained in the plaint and other material available on the record before the Court which the plaintiff admits as correct." In the instant case, we questioned the learned counsel about the previous litigation of the parties qua the suit land, he replied that he was not aware of the nature of the same. However, the documents (undisputed/unrefuted) available on the record go a long way to show that on 9‑4‑2001 appellant instituted a suit for permanent injunction against the present respondents and others to the effect that they be restrained from causing interference with his possession over the land including the suit‑land which was later on dismissed as withdrawn vide order of the learned trial Court, dated 14‑5‑2002; that Mst. Zaineb Mai (present respondent No.1) instituted a suit against the appellant arid the Agriculture Development Bank of Pakistan on 28‑8‑1994 through which she challenged the Mutation No. 122, dated 9‑1‑1970, showing the transfer of the suit‑land by her in favour of the appellant and. another and Mutation No. 86 dated 6‑8‑1991 showing mortgage of the suit‑land appellant in favour of Agricultural Development, Bank of Pakistan, Branch Kehrorr Pecca. This suit, after a hot contest, was decreed by the learned trial Court vide its decree dated 25‑1‑1999. Appellant's appeal against the same was also dismissed by the learned Additional District Judge, vide his judgment and decree dated 29‑3‑2001. Appellant approached the High Court in order to challenge these judgments and decrees through C.R. No.387‑D of 2001 but the same was also dismissed in limine by a learned Judge of this Court on 19‑4‑2001; that respondent No.1 transferred the suit‑land to respondent No.2 through 'Tamleek' Mutation No.1955 dated 8‑12‑2001 and partition proceedings were also initiated but the appellant filed this suit on 15‑12‑2001 on the basis of an oral agreement showing payment of the entire price. These facts emerging out of such documents were specifically put to the learned counsel conducting the case on behalf of appellant in the trial Court but he remained unable to deny the same. However, he maintained that "since agreement in-question was made after the decision of said forums therefore, due to a fresh agreement there was no need to recapitulate the previous litigation inter se the parties." After recording this submission of the learned counsel, learned trial Court further observed in para. 7 of its impugned judgment. "However, when further confronted with the proposition that the parties litigated upto the level of honourable High Court as to what under circumstances, plaintiff/petitioner (present appellant) had not got written agreement executed and obtained the receipt showing payment of Rs.4,00,000 (four lacs) which is a huge amount. He stated that since the matter was inter se brother and sister, so it was not felt. necessary". Strange enough that the present, learned counsel did not come forward with any explanation with regard to this aspect of the matter by simply stating that he was not aware of the nature of previous litigation.

7. It is worth to be noticed that the appellant has sought a decree for declaration of title on the basis of an agreement to sell that too oral one but it is well‑settled that "an agreement to sell does not create any right, title or interest in the property." On this score too suit for declaration on the face of it was not maintainable. Reference can confidently be made to a D.B. judgment passed in case with reference to Order VII, rule 11, Civil Procedure Code printed in 2001 YLR 2789 (D.B.) (Muhammad Younas and another v. Mst. Muhammad Bibi and 6 others).

8. With regard to the alternate relief of specific performance of the alleged agreement it can safely be held in the context of the facts noticed above that the appellant did not have a cause of action.

9. In the presence of the above unrefuted rather admitted facts we feel no hesitation to hold that the appellant after having been unsuccessful in getting served his ulterior motive with respect to depriving the respondent of the suit property even upto the level of superior Courts has restarted another round of litigation by filing the instant suit without having any just cause of action. It has been held in D.B. judgment of this Court (Farzand Ali v. Mst. Sughra Bibi etc.) R.F.A. No.284 of 2001 that "a Court is not absolved of its judicial obligation, to bury a suit, at its inception particularly a suit for equitable relief under the Specific Relief Act, if it comes to a conclusion after considering the admitted facts or the facts which cannot be disputed/refuted even without holding the factual enquiry or requiring further evidence that the suit must fail: It has also been held, in 2002 SCMR 238 with reference to Order VII, rule 11, Civil Procedure Code. "It is not only the requirement of law and justice but also it is in the interest of litigating parties and the judicial institution itself. The parties are saved with their time and unnecessary expenses and the Courts get more time to devote it for the genuine causes."

10. We are convinced that the learned trial Court had rightly and justly non‑suited the appellant on a due appreciation of law and facts vide its impugned judgment and decree and in the given circumstances, the same is also in furtherance of the ends of justice. Resultantly, instant appeal stands dismissed. Appeal dismissed. Q.M.H./M.A.K./K‑151/L