BASHIR AHMAD vs ABDUL MAJID and 7 others
This civil matter before the Sindh High Court arises from an application under Order VII Rule 11 of the Code of Civil Procedure 1908 seeking the rejection of a plaint in a suit concerning an agreement of sale. The core legal questions involved the bars of limitation, proper valuation of court-fees for injunctions, and the maintainability of a suit for specific performance when an alternative remedy of damages is provided. The Court held that pleas involving mixed questions of fact and law, such as limitation and the availability of alternative remedies for specific performance, cannot be resolved without recording evidence and therefore do not warrant the rejection of the plaint. Regarding court-fees, the Court found a deficiency in the valuation of injunction reliefs but ruled that such an objection does not result in the rejection of the plaint, directing the plaintiff to submit an amended plaint with proper valuation and additional court-fees. The key principle laid down is that a plaint cannot be rejected under Order VII Rule 11, Code of Civil Procedure 1908 on ambiguous pleas or complex factual contentions requiring evidentiary backing, and defects in court-fee valuation require an opportunity for amendment rather than immediate dismissal.
- Can a plaint be rejected under Order VII Rule 11 of the Code of Civil Procedure 1908 on the ground of limitation when the determination of limitation depends on disputed agreements and requires recording of evidence?
- Does an objection regarding the under-valuation of court-fees for injunction reliefs warrant the outright rejection of a plaint under the Code of Civil Procedure 1908?
- Is a suit for specific performance automatically barred under the Specific Relief Act merely because the agreement between the parties provides for an alternative remedy of damages?
- Whether time is of the essence of the contract in respect of agreements of sale touching immovable property without a written notice fixing reasonable time?
- Order VII Rule 11, Code of Civil Procedure 1908
- Article 113, Limitation Act 1908
ORDER
1. ' I have heard the learned counsel on this application under Order 7. Rule 11, C.F.C. Learned counsel for the plaintiff is right when she says that the pleas raised in support of the application under Order 7, rule 11, C.P.C. Are ambiguous in nature. She contends that such should not be considered.
2. However, in the interest of justice, each one of these pleas have been examined with the assistance of the learned counsel for the parties.
3. ' The first plea is that of the bar of limitation. The plaintiff relies on two successive agreements, one of which as per written statement of the defendants is not admitted. On this plea itself, the question of limitation cannot be considered unless a finding is arrived at with regard to the second purported agreement. At any event, the question whether the matter falls within the first part of the third column to Article 113 in the First Schedule to the Limitation Act or in the latter such part is also no free from doubt, more so when it is settled law that in respect of agreements of sale, touching immovable property time is not of the essence of contract even though mentioned in the agreement itself unless written notice is addressed by one party to the other and time is reasonably fixed. The question, therefore, requires evidence, as a precondition.
4. ' The next question raised in this application pertains to payment of court-fees relevant to the valuation of the injunctions claimed in the suit. In this context learned counsel for the defendants appears to be right but then, even so, acceptance of such objection as well cannot result in the rejection of the plaint. The plaintiff is, therefore, directed to value the reliefs of injunction according to the requirements of the Court Fees Act. For such purpose, let amended plaint with due valuation and additional court-fees be submitted with advance copy to the learned counsel for the defendants within four weeks.
5. ' The third question raised pertains to the suit being barred under the provisions of the Specific.
6. Relief Act. As before, no particulars are provided. However, learned counsel for the defendants says that because the agreement inter parties provides for an alternative of damages, relief for specific performance is automatically barred. No case on the subject has been cited. However, specific performance is a discretionary relief and may be refused in given circumstances, one of which can be the availability of an alternative relief. This question is also one which can be examined only in the context of the over-all controversy in the suit after evidence is recorded.
7. ' In view of the foregoing, I see no merit in this application and dismiss it. However, such questions, as be relevant, would remain to be considered at the time, when the matter proceeds on merits. No observation made here, being only tentative, shall then bind the parties.
2. Deferred for the present.
Cited by 7 cases
- Maj. (R) MUHAMMAD IQBAL HUSSAIN through Attorney vs Col. (R) SADIQ 2017 YLR 2105
- MUSHTAQ A. PATEL vs MUHAMMAD ISLAM through Legal heirs and others 2017 YLR 2459
- Meer Hassan, etc. vs Hakeem Muhammad Sana Ullah, etc. 2014 C.L.R. 945
- MEER HASSAN (deceased) through his Legal Representative vs HAKEEM 2015 PLJ Lahore 171
- Haji REHMAT ALI vs AKBAR ALI HASHMI and others 2002 YLR 3525
- MUHAMMAD ANWAR and 8 others vs BAHAN and anothers 2000 YLR 378
- MUHAMMAD ANWAR-and others vs Mst. BIHAN and others 2000 C.L.R. 962