GHULAM ALI vs ASMAT ULLAH and another

1. ' MUHAMMAD AFZAL ZULLAH, C.J.---This appeal, in a civil suit, through leave of the Court is directed; against the acceptance by the High Court, of respondents' First Appeal against an order of remand passed by a learned District Judge.

2. ' The respondents' plaint was rejected under Order VII, Rule 11, C.P.C. On the ground that it did not disclose any cause of action. The appellant/plaintiff's appeal was allowed and the case was remanded to the trial Court for further proceedings. However, this order of remand was challenged by the respondent/defendants in the High Court through an appeal which was allowed. The order of remand was set aside and the order of rejection of the appellant's plaint was restored. Leave to appeal was granted to examine the question "whether the appellant's plaint could be rejected under Order VII, Rule A 11, C.P.C., for non-disclosure of cause of action".

3. ' We have gone through the plaint. Paragraphs 4 and 6 thereof read as follows:-- {{URDU TEXT}} ' The argument advanced from the respondents' side which prevailed with the High Court was that the question of "equation money" of Rs,25,000 vis-a-vis, the disputed exchange not having been mentioned in the deed of exchange, no oral evidence could be led in that behalf. Similarly the question of the value of the superstructure not having been directly dealt with in the exchange deed no oral evidence could be led on this question either. Therefore, as assumed, no sufficient cause of action was shown in the plaint to proceed any further. The same, therefore, was rejected under Order VII, Rule 11 of the Civil Procedure Code.

4. After hearing the learned counsel for both the sides we have not been able to agree with the reasoning of the High Court. Whether or not oral evidence could be led to support the assertion made in the afore-reproduced part of the plaint, it is an admitted position that the assertions made in the plaint, as they were, had to be seen for purpose of determining; whether, the plaint disclosed any cause of action. It is not denied that if the said reproduced averments are kept in mind regardless of the fact, whether the respondent/plaintiffs would be able to prove them or not, they do disclose sufficient cause of action to proceed further with the suit. It is also not denied from the respondents' side that lack of proof or weakness of proof in the circumstances of this case does not furnish any justification for coming to the conclusion that there was no cause of action shown in the plaint. That being so, there is no alternative but to accept this appeal, set aside the impugned judgment and restore the order of remand passed by the learned District Judge. Order accordingly. Parties shall hear their own costs.