ANWAR KHAN vs ABBAS KHAN

Abbas Khan, plaintiff-respondent instituted suit in the Court of Senior Civil Judge, Kohat, against his brothers Anwar Khan and Banaras Khan defendant-- petitioners, claiming a declaration-cum--- permanent injunction to the effect that plaintiff is owner of 57 Kanals whereas defendants are owners to the extent of 31 Kanals, 17 Marlas and 44 Kanals, 8 Marlas respectively in suit-land fully detailed in the head note of the plaint and the entries incorporated in the Revenue Record are incorrect and liable to rectification. The validity of Mutation No. 862, dated 22-7-1934 was also brought under challenge and a prayer for correction of the same was also made. The suit was - resisted on all grounds legal as well as factual including limitation. The pleadings of the parties gave rise to the framing of nine issues. At is stage an application was moved on behalf of defendant No. l for rejection of plaint under Order VII, rule 11, C.P.C. On the ground of limitation and non-impleadment of necessary parties. The application having been contested was accepted vide judgment, dated 5-5-1999 and plaint was rejected, on the ground that plaintiff has got no cause of action to institute the suit. The petitioner being aggrieved with the said judgment preferred an appeal which was heard and decided by learned Additional. District Judge, Kohat. Vide judgment dated 14-11-2001, appeal was accepted, impugned order was set aside and case was remanded back to trial Court with direction to decide the same in accordance with law after - recording evidence. The present revision bearing No. 229 of 2001 has been filed against the aforesaid judgment, principally on the ground that remand order is perfunctory and suffers from legal infirmity and keeping in view the facts and circumstances of the case the learned Appellate Court had no justifiable reason to accept the appeal, set aside the order of the trial Court and remand the case for decision after inviting evidence.

2. I have heard Mr. Ajmal Khan, Advocate, learned counsel for the petitioners and Mr. M. Zahir Shah, Advocate learned counsel for the respondent at some length in the light of the material on record.

3. There is no cavil to the proposition that a plaint can be rejected if its contents do not disclose a cause of action or on the face of it, suit is barred by any law or if the plaintiff fails to correct the valuation of the suit or to supply the requisite stamp paper for the court---fee within the time given by the Court, However, it is also equally true that "besides averments made in the plaint other material available on the record, which on its own strength was legally sufficient to completely 8 refute the claim of the plaintiff, can also be looked into for the purpose of rejection of the plaint". If an authority is needed, on the point reference can be made to S.M. Shafi Ahmad Zaidi through Legal Heirs v. Malik Hasan Ali Khan (Moeen) through Legal Heirs (2002 SCM R 338). It needs no reiteration that rejection of plaint at preliminary stage when the plaintiff has not led any evidence in support of his case is possible only if the C Court reaches this conclusion on consideration of the statement contained in the plaint and other material available on the record before the Court which the plaintiff admits as correct. Ghulam Abbas v. Syed Abid Hussain Shah and 6 others (1994 M LD 2345 (Peshawar).

4. It is not denied that plaintiff--respondent and defendant-petitioners are real p brothers and suit-land is jointly owned by them. It is also not disputed that in appropriate cases even the contents of the written statement/affidavits can be looked E into when considering application under Order VII, rule 11, C.P.C. In order to reach a fair and just conclusion. The issue of limitation is a mixed question of facts and law F which is always attended to after recording evidence of the parties.

5. Having regard to the facts and circumstances of the case I am of the opinion that the appellate Court has not committed any material irregularity entailing mis--carriage of justice. The impugned order does not suffer from any jurisdictional defect as described in section 115 of the Code of Civil Procedure (V of 1908). The discretion exercised by the Appellate Court is neither arbitrary nor perverse or fanciful. Learn counsel for the petitioners has not been able to pinpoint any material irregularity for setting aside the impugned order. The Appellate Court has chosen to exercise discretion on sound principles of law which hardly call for interference of this Court. The revision petition fails which ix hereby dismissed. The parties are left to bear their own costs.