MUHAMMAD ASIF KAMAL PASHA Versus PARVEEN AKHTAR
INAMULLAH KHAN, J.--- This single judgment is intended for the decision of present constitutional petition as well as connected Writ Petition No.15- D/2022 titled "Amjad Ali and others v. Parveen Akhtar and others" , having common facts and law being the outcome of one and the same judgment dated 31.01.2022, rendered by learned Additional District Judge-II D.I.Khan.
2. Unnecessary details apart, the facts forming factual canvas of the instant and connected petitions are that the respondent No.1 (then plaintiff) instituted a suit seeking declaration of ownership in respect of the house, detailed in the head note of plaint, on the basis of registered deed No.1535 dated 29.07.2013 and sought cancellation of registered deed No.1858 dated 26.01.2016 on the ground that the latter deed was executed by Muhammad Asif Kamal Pasha (defendant No.3), on her behalf, on the basis of general power of attorney vide deed No.257 dated 26.01.2016 in favour of Amjad Ali etc (defendants Nos. 4 to 6) but in-fact she never appointed him as her general attorney, and as such, the deed No.1858 is fraudulent, illegal and unlawful.
3. After services of summons, the petitioners i.e. defendants Nos. 3 and 4-5, filed their separate written statements followed by seperate applications for rejection of plaint under Order VII Rule 11, C.P.C., which were replied by the respondent No.1 . The learned trial Court after hearing arguments on the application dismissed the same vide order dated 07.07.2021. Petitioners discontented with the order dated 07 07.2021 preferred their separate revision petitions which were dismissed by the learned Additional District Judge-II, D.I.Khan, vide Judgment dated 31.01.2022. Feeling aggrieved of the judgment/orders of both the courts blow, present writ petitions have been filed by the petitioners/defendants.
4. Arguments heard and record perused.
5. The respondent No.1, in her plaint, alleged that the general power of attorney vide registered deed No.257 dated 26.01.2016, executed in favour of petitioner Muhammad Asif Kamal Pasha, is a fraudulent document and that she neither executed nor signed the same; and for this reason, the registered deed No.1858, executed by the general attorney on behalf of respondent No.1, is also liable to be cancelled. Whereas, petitioners in their respective applications for rejection of plaint have contended that the general power of attorney was validly executed, and as such plaint does not disclose any cause of action. Both the learned courts below concurrently dismissed the applications on the ground that factual controversy is involved in the matter which requires recording of evidence. No doubt the factual controversy, if involved in a matter, requires recording of pro and contra evidence, nevertheless, there is no bar on a court to give its opinion in view of any admitted and un-rebuttable fact or document. In this case, respondent No.1, in the year 2018, filed an application No.121/2 of 2018 before the learned Civil Judge-I/Judge Family Court-II, D.I.Khan, for guardianship of her minor sons. The said application was filed through the same general power of attorney. During proceedings in the guardianship petition, statement of Muhammad Asif Kamal (general attorney) was recorded as AW-4, and the respondent No.1 had also recorded her statement AW-5, wherein she stated that:
6. Even in the revocation deed dated 28.08.2019 too, the respondent No.1 admitted the appointment of petitioner (Muhammad Asif Kamal Pasha) as her general attorney and the reason for cancellation of the power of attorney was noted to be the lost of confidence. Relevant excerpt from the revocation deed is reproduced as under:
(Underlined is my emphasis)
7. It is clear from the contents of revocation deed that the respondent No.1 herself admitted the appointment of Muhammad Asif Kamal Pasha as her general attorney and then specifically mentioned that she would not be responsible for his acts after such revocation, which clearly means that she did not depute the acts done by the attorney prior to the date of cancellation of power of attorney. In other words, she admitted the execution of registered deed No.1858 through her general attorney, and as such, the plaint does not disclose the cause of action. Even otherwise, if the respondent No.1 is allowed to lead her complete evidence, even then, because of above referred realities, her suit would not succeed. In such circumstances, the plaint lodged by respondent No.1, disclosed no contestable cause of action.
8. True that while deciding the application under Order VII Rule 11, C.P.C. only the contents of plaint are to be looked into, but the other material on its own intrinsic value can also be considered along with the averments made in the plaint. In the case of "S.M. Sham Ahmad Zaidi through Legal Heirs v. Malik Hassan Ali Khan (Moin) through Legal Heirs" (2002 SCMR 338) the august Supreme Court has held that:
14. Besides, averments made in the plaint other material available on record which on its own strength is legally sufficient to completely refute the claim of the plaintiff can also be looked into for the purpose of rejection of the plaint. It does not necessarily mean that the other material shall be taken as conclusive proof of the facts stated therein, but it: actually moderates that other material on its own intrinsic value be considered along with the averments made in the plaint.
9. If a party who approaches the Court, with mala fide by concealing material facts, which if brought before the Court, the plaintiff would have been out of Court for having no cause of action and also in a situation that defendants brought any such fact in the notice of the Court the same can also be judiciously pondered upon while deciding an application under Order VII Rule 11, C.P.C. because a plaintiff should not be allowed to grind the other party into a false and frivolous litigation. The basic objective and aim of Order VII Rule 11, C.P.C. is that an incompetent suit should be laid to rest at its inception so that no further time is allowed to be wasted over what is bound to collapse. A suit may be specifically barred by law and in such an event, the matter would come under the vivid terms of clause (d) of Rule 11 Order VII of the Code but even in a case where a suit is not permitted by necessary implication of law in the sense I that a positive prohibition can be spelt out of legal provisions. The Court has got an inherent jurisdiction to reject the plaint at any stage of trial and in such a situation formalities should be avoided to reject it, thus, provisions of Rule 11 of the Order VII are not exhaustive. The Court in exercise of inherent jurisdiction can nip the frivolous litigation in the bud, when on account of some legal impediments full-fledged trial will be a futile exercise. Reliance is placed on the judgment reported in case titled "Noor Din and another v. Additional District Judge, Lahore and others" (2014 SCMR 513) .
10. Moreover, in carrying out an analysis of the averments contained in the plaint the court is not denuded of its normal judicial power. It is not obligated to accept as correct any manifestly self-contradictory or wholly absurd statements. The court has been given wide powers under the relevant provisions of the Qanun-e-Shahadat. It has a judicial discretion and it is also entitled to make the presumptions set out, for example in Article 129 which enable it to presume the existence of certain facts. It follows from the above, therefore, if an averment contained in the plaint is to be rejected, perhaps on the basis of the documents appended to the plaint, or the admitted documents, or the position which. is beyond any doubt, this exercise has to be carried out not on the basis of the denials contained in the written statement which are not relevant, but in exercise of the judicial power of appraisal of the plaint. While rendering this view, I am fortified by the dictum laid down by the august Supreme Court of Pakistan in the case of "Haji Abdul Karim and others v. Messrs Florida Builders (Pvt) Limited" (PLD 2012 Supreme Court 247) .
11. In view of the foregoing, both the learned courts below have failed to exercise the jurisdiction so vested in them and committed serious and material irregularity and illegality in entertaining the plaint of respondent No.1 . This petition is accordingly accepted, the impugned Judgment/Order of both the courts below are hereby set aside and the plaint stands rejected under Order VII Rule 11, C.P.C. Parties shall bear their own cost.
UN/33/P Petition allowed.