Mst. SIRAJ ZAMANI Versus Kh. AZHAR IQBAL

Mst. Siraj Zamani, petitioner filed a suit for declaration against the respondents to the effect that agreement to sell dated 1‑11‑1988 was illegal, void, based on fraud and liable to be set aside and respondent/defendant No. 1 (Khawaja Azhar Iqbal) could not use the same in any manner and that respondents/defendants Nos.2 and 3 could not supply him (respondent No. 1) electricity connection. She stated that she and Mst. Razia Bibi daughter of Habibullah were owner in possession of suit‑land (measuring 47 Kanals 10 Marlas bearing Khewat No.1466/1229 situated in Chak No. 1‑A/4‑L) and they were selling the same in the shape of plots for residential purposes. She maintained that they, agreed to sell land measuring 66 Marlas to respondent/defendant No. 1 vide agreement dated 1‑11‑1988 for a consideration of Rs.8,00,000 and he paid them Rs.10,000 as earnest money and promised' to pay Rs.1,65,000 on 10‑12‑1988 failing which earnest money would be forfeited and agreement would stand cancelled. She asserted that Mst. Razia Bibi died on 10‑10‑1990 and respondents/defendant. Nos.4 to 10 are her legal heirs. She alleged that respondent No. 1 failed to pay Rs.1,65,000 on 10‑12‑1988 whereupon she sent him a notice on 26‑1‑1999. She further alleged that respondent No.1 started raising construction in their absence. She asked him not to raise construction and asked respondents/defendants Nos.2 and 3 ‑not to supply him electricity but they resisted, therefore, she was constrained to file present suit. Khawaja Azhar Iqbal, respondent No. 1 mentioned in his written statement that plaintiff had executed fresh agreement dated 5‑11‑1988 after the agreement dated 1‑11‑1988, hence she had renewed the same and previous agreement had become in effective, therefore, suit was not maintainable. He further mentioned that plaintiff agreed to sell disputed plots for a consideration of Rs.7,00,000 instead of Rs.8,00,000 and she received Rs.3,65,000 from him and allowed to raise construction, therefore, he had raised construction. Alongwith suit she had also filed application for issuance of temporary injunction and the same was fixed for arguments. However, after hearing arguments on the said application; learned trial Court rejected plaint under Order 7, rule 11 C.P.C. vide order dated 3‑4‑1991. The petitioner filed appeal against the said judgment, which was dismissed, by learned Additional District Judge, Okara vide judgment dated 5‑5‑1992. Hence, this revision petition.

2. The revision petition was admitted to regular hearing on 9‑6‑1992 and notices were issued to respondents. The case was fixed for 13‑6‑2003 but respondents Nos.1 to 3 did not appear on the said date, therefore, they were proceeded against ex parte.

3. I have heard the argument and perused the record.

4. Learned counsel for the petitioner submits that according to Order, 7 Rule 11, C.P.C. learned trial Court could reject plaint only on the ground that it did not disclose cause of action. Further submits that defence set up or documents annexed thereto could not be looked into for rejection of plaint but learned trial Court rejected the plaint on the ground that defendant has mentioned in written statement that agreement dated 1‑11‑1988 on the basis of which plaintiff had filed suit had been substituted by agreement dated 5‑11‑1988, therefore, impugned judgments are illegal and liable to be set aside. As mentioned above petitioner/plaintiff had filed a suit for declaration etc. on the basis of agreement dated 1‑11‑1988. The case of petitioner is that aforesaid agreement is illegal, void; based on fraud and liable to be set aside. However, order dated 3‑4‑1991 shows that trial Court rejected the plaint on the ground that according to written statement plaintiff had executed agreement dated 5‑11‑1988 after disputed agreement' (1‑11‑1988), therefore, plaintiff had no cause of action. It is pertinent to note that trial Court observed that 'Muhammad Naeem General Attorney of plaintiff had filed an affidavit to the effect that he had neither executed the agreement deed dated 5‑11‑1988 nor had, received any consideration amount mentioned on it and that this agreement deed was forged and void". So it is clear that plaintiff had not accepted agreement dated 5‑11‑1988 to be correct rather her case is that the same is forged and void. It is well‑settled that plaint can be rejected only if it did not disclose cause of action or the same is barred by any law. Order VII rule 11, C.P.C. is reproduced below:

"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 undervalued, 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."

So it is clear that in order to invoke the applicability of clause (a) the Court shall look into the contents of the plaint only and shall examine the plaint on its face value. If the plaint by itself indicates any infirmity enumerated in clauses (a) to (d) of Rule 11 of Order VII, C.P.C. then the Court shall order the rejection of the plaint as the fruitless litigation requires to be buried at its inception to avoid wastage of time of Courts H and unnecessary harassment of the opposite party. Reliance can be placed on the case of Haji Allah Bukhsh v. Abdul Rehman and others (1995 SCMR 459). The defence set up and documents annexed with the written statement cannot be looked into for rejection of plaint. Reliance can be placed on the case of Mushtaq Ahmad Khan and another v. Mercantile Cooperative Finance Corporation Limited and another (PLD 1989 Lahore 320). However, as mentioned above learned trial Court 'rejected the plaint only on the basis of averments in the‑written statement and agreement dated 5‑11‑1988. In these circumstances I find that judgment of learned trial Court is not sustainable in the eye of law. Learned counsel for respondents Nos.4 to 10 also concedes on this point. The perusal of judgment dated 5‑5‑1992 passed by learned Additional District Judge shows that appeal brought by petitioner was dismissed without appreciating the material available on record, which has resulted in miscarriage of justice, therefore, the same cannot be sustained and justifies interference by this Court.

For what has been discussed above, I am of the considered opinion that judgments passed by both the Courts below are liable to ‑be set aside. As such this revision petition is accepted, impugned judgments are set aside and case is remanded to learned trial Court for decision afresh in accordance with law. The application for issuance of temporary injunction shall also be decided on merit. No order as to costs.

M.H./S‑788/L Case remanded.