ZAHID HUSSAIN vs Mst. NOOR JEHAN and 2 others

ORDER

1. ' This appeal has been presented against judgment and decree dated 21-3-2005, passed by Senior Civil Judge-I, Quetta whereby plaint of appellant has been rejected under Order VII, rule 11, C.P.C.

2. While deciding an application under Order XXXIX, rules 1 and 2, C.P.C.

3. Ch. Mumtaz Yousaf, learned counsel for the appellant, submits that learned trial Court had no jurisdiction to reject the plaint because order was to be passed only on an application under Order XXXIX, A rules 1 and 2, C.P.C. And the case was not fixed for disposal of suit. He further submits that the ground on the basis of which plaint has been rejected, required evidence, which opportunity has not been provided to appellant.

4. ' On the other hand learned counsel for respondents Nos. 1 and 2 vehemently opposed the contention of learned counsel for the appellant and stated that plaint was rejected under Order VII, rule 11, C.P.C. And under said provision of law evidence was not required to be recorded.

5. ' We have considered the contentions put forth by learned counsel for parties and have also perused the record as well as relevant provisions of law.

6. Admittedly the matter was fixed for hearing on application under Order XXXIX, rules 1 & 2, C.P.C. The trial Court was only authorized B to decide said application either way, but rejection of plaint at this stage, in our view, is illegal and unlawful. After framing of issues the trial, Court could decide the suit on legal issues as envisaged under Order XIV, rule 2, C.P.C. And in that case too, an opportunity of hearing and proving the case to the parties is necessary, which principle has not been followed in instant case. As far as the reasoning advanced by trial Court in judgment is in respect of accrual of cause of action and limitation for filing of suit is concerned, under Order VII, rule 11, plaint could be rejected, if it does not disclose cause of action, but it cannot be rejected on the ground of accrual of cause of action, as the later requires evidence to prove and after recording of evidence, if the plaintiff fails to prove cause of action accrued to him then, the suit has to be dismissed. Similarly, point of limitation is a mixed question of law and facts which also requires evidence, but without recording evidence, rejection of plaint is not legal and proper. We may place reliance on the judgment reported in 2008 YLR 1287, wherein it has been held that:- "The plaint can be rejected only if comes within the mischief of rule 11 of Order VII, C.P.C. The rejection of the plaint was sought on two grounds firstly that the plaint does not disclose a cause of action and secondly that the suit is barred by Article 91 of the First Schedule of Limitation Act. For rejecting the plaint on the first ground the contents of entire plaint and accompaniments are to be considered and it may be treated as true and correct on its face value. The defence cannot be looked into for rejecting the plaint on the ground that the suit is barred by any law, the plaint can only be rejected when the suit appears from the statement in the plaint to be barred by any law."

7. Thus, in view of what has been stated and discussed hereinabove, we are inclined to accept the appeal, set aside the impugned judgment dated 21-3-2005, passed by Senior Civil Judge I, Quetta and remand the case back to learned trial Court for decision afresh strictly in accordance with law.