2022 C L C 722
[Balochistan (Sibi Bench)]
Before Muhammad Ejaz Swati and Zaheer- ud-Din Kakar, JJ
MAI MITHAN and 67 others ----Petitioners
Versus
BANDA- E-ALI and 94 others ----Respondents
Constitution Petition No.S -70 of 2021, decided on 30th September, 2021.
(a) Civil Procedure Code (V of 1908) ---
----O.VII, R.11---Rejection of plaint ---Mutation, knowledge of ---Not challenged in life time -
--Suit barred by time ---Scope ---Petitioner's suit for declaration, cancellation of revenue
entries and per manent injunction was contested by respondents/defendants by filing written
statement---Respondents' application for rejection of plaint had been dismissed by Qazi ---
Majlis -e-Shoora accepted revision petition filed by respondents and rejected the plaint ---
Petitioners contended that issue of limitation was a mixed question of law and facts which
could be decided on the basis of evidence ---Validity ---Averments contained in plaint were
presumed to be correct ---Petitioner had challenged the mutation entries aft er 48 years ---
Plaint showed that predecessor of the petitioners was well aware about impugned mutation
entries but they did not challenge said mutation in their life time ---Suit appeared form
statement in plaint was barred by limitation ---Constitutional pe tition was dismissed
accordingly.
Nazar Gul v. Islam and 3 others 1998 SCMR 1223; Hakim Muhammad Buta Vs.
Habib Ahmed and other PLD 1985 SC 153; Haji Abdul Karim and others v. Messrs Florida Builders (Pvt.) Ltd. PLD 2012 SC 247; Haji Allah Bakhsh v. Abdul Rehman and others 1995
SCMR 459; Noor Din and others Vs. Additional District Judge, Lahore and others 2014 SCMR 513 and Muhammad Rustam and other v. Mst. Makhan Jan and others 2013 SCMR 299 rel.
(b) Civil Procedure Code (V of 1908) ---
----O.VII, R.11--- Rejection of plaint---Nature and Scope ---Order VII, R.11 of Civil
Procedure Code, 1908, laid down an independent remedy for defendant to challenge maintainability of suit instead of contesting the same on merit.
(c) Civil Procedure Code (V of 1908) ---
----O. VII, R. 11--- Rejection of plaint---Object ---Object of O.VII, R.11 of Civil Procedure
Code was primarily to save the parties from the rigorous or frivolous litigation at the very
inception of the proceedings.
Pakistan Agricultural Storage and Services Corp oration Ltd. v. Mian Abdul Latif PLD
2008 SC 371 rel.
(d) Civil Procedure Code (V of 1908) ---
----O.VII, R.11--- Rejection of plaint---Cause of action and limitation---Stage to decide ---
Court could exercise power at any stage of suit before passing of judgm ent for deciding
application under O.VII, R.11 of C.P.C., 1908, relating to clause (a) & (d) and same could be
exercised power before filing of written statement.
(e) Civil Procedure Code (V of 1908) ---
----O.VII, R.11--- Rejection of plaint---Cause of acti on, existence of ---Duty of Court ---
Scope ---Order VII, R.11 of Civil Procedure Code, 1908 casts duty on court to perform its
obligation if a plaint was hit by any clause of the said provisions, even without filing of application by defendants ---While decidi ng application under O.VII, R.11, C.P.C., it was to
be considered whether plaint disclosed a real cause of action or something purely illusory/imaginary / hollowed had been stated.
(f) Civil Procedure Code (V of 1908) ---
----O.VII, R.11--- Rejection of plai nt---Plaint, exclusiveness of ---Scope ---For O.VII, R.11 of
Civil Procedure Code, it was plaint alone which was to be considered.
Muhammad Khan v. Muhammad Amin through L.Rs. and others 2008 SCMR 913 rel.
Ahsan Rafiq Rana and Barrister Saifullah Magsi for Petitioners.
Naseer -ud-Din Mengal, A.A.G. for Official Respondent.
Muhammad Sadiq for Respondent No.83.
Ghulam Mustafa Buzdar for Respondent No.90.
Date of hearing: 23rd September, 2021.
JUDGMENT
MUHAMMAD EJAZ SWATI, J. ----The petitioners (plaintiffs) filed a suit, against
respondents for declaration, cancellation of revenue entries and permanent injunction, in respect of property described in Paragraph No.1 of plaint and in paragraph No.3 of plaint, it was averred as under,
2. The respon dents (defendants) contested suit by way of filing written statement on
factual as well as legal grounds. An application under Order VII, Rule 11 Civil Procedure
Code (C.P.C.), field by the respondents was dismissed, by the learned Qazi Bhag, vide order dated 4 -9-2018, on the ground that matter relating to issue raised in application is based on
facts and law, therefore, required determination, after adducing evidence by the parties. On civil revision filed by the respondents, the learned Majlis -e-Shoora, S ibi, vide impugned
order dated 18- 03-2021, accepted civil revision and plaint was rejected in view of Order VII,
Rule 11, C.P.C.
3. The impugned order has been challenged by the petitioners, on ground that issue of
limitation is a mix question of law and f acts, which can be decided on basis of evidence. That
petitioners being in possession of land- in-dispute had challenged adverse entries, in view of
Section 53 of the Land Revenue Act, 1967, for which only civil court has jurisdiction to adjudicate upon mat ter.
4. The learned counsel for respondents contended that plaint does not disclosed any
cause of action nor petitioners had any locus standi to file time barred claim.
5. We have heard the learned counsel for the parties and perused the record. It is settled
principle of law that in order to take up the pleas under Order VII, Rule 11, C.P.C., the party concerned has to essentially take the averment made in the plaint as correct and their entirety appears to be barred by law or a suit on basis of it was incompetent, did not disclose cause of
action. The totality of facts must coexist, if anything wanting claim would be incompetent. The court would take into consideration the plaint as a whole and the document placed by the plaintiff on record.
6. It is w ell settled that party seeking relief must have "cause of action" not only when
alleged act is done, but at the time of filing suit, right to seek relief was in existence. The
question as to whether a suit is barred by limitation or right to seek relief ex ists or not, would
therefore depend upon facts and circumstances of each case. For said purpose only averment made in plaint are relevant. At this stage court would not to consider defense.
7. Order VII, Rule 11, C.P.C. lays down an independent remedy to defendant to
challenge maintainability of suit instead of contesting the same on merit. The court can
exercise power at any stage of suit before passing of judgment for deciding application under Order VII, Rule 11, C.P.C. relating to clauses (a) and (d) ca n be exercise power before filing
of written statement. The averments in plaint are generic. The plea taken by defendants would be wholly irrelevant at that stage.
8. It is clearly implied thereby that Order VII, Rule 11, C.P.C., cast a duty on court to
perform its obligation, when same hit by any of clause provided under Order VII, Rule 11,
C.P.C. Even without filing of application by defendants, while deciding application under Order VII, Rule 11, C.P.C., it is to be considered whether plaint discloses a real cause of action or something purely illusory/imaginary or hollowed has been stated within meaning of Order VII, Rule 11, C.P.C. For Order VII, Rule 11, C.P.C., it is plaint alone, which is to be considered. In case of Muhammad Khan v. Muhammad Amin through L.Rs. and others (2008 SCMR 913), the Honorable Supreme Court of Pakistan observed that "the plaint in the suit were admittedly filed on 05 -01-2009. Evidently the suit was filed beyond period of limitation
prescribed under Article 113 of the Limitati on Act and fact of limitation is evident from
averment made in plaint. In such circumstances, the trial court was not required to frame issue or lead evidence." In Nazar Gul v. Islam and 3 others (1998 SCMR 1223) it was observed as under,
"We have gone through the copy of the plaint placed on the present record. It has nowhere been alleged therein that the petitioner and the respondents were the co-sharers. On the other hand, the petitioner categorically asserted in para.4 of the plaint that the defendants taking advantage of his absence and that of his father took
possession of the entire cultivable land. In the circumstances, cause of action on the petitioner's own showing accrued to him about forty years prior to the institution of
the suit. Suit brought by him was, thus, patently time -barred and it was rightly so held
by the learned Judge of the High Court. Since the bar of limitation was apparent from the contents of the plaint itself, the learned Judge rightly dismissed the suit on the ground of limita tion instead of remanding the case to the Courts below."
9. In case of Hakim Muhammad Buta and other v. Habib Ahmed and others (PLD 1985
SC 153), the honorable apex Court of Pakistan observed as under,
"The words of section 3 of the Limitation Act are mandatory in nature in that every suit instituted after the period of limitation shall subject to the provision of sections 4 to 25 of that Act, be dismissed although limitation has not been set up as a def ence. If
from the statement in the plaint the suit appears to be barred by limitation, the plaint shall have to be rejected also under Order VII, Rule 11, C.P.C. The law, therefore, does not leave the matter of limitation to the pleadings of the parties. I t imposes a
duty in this regard upon the Court itself. There is a chain of authority, and a detailed discussion of the same is not necessary, to lay down that limitation being a matter of statute and the provisions being mandatory, it cannot be waived and even if waived can be taken up by the party waiving it and be the Courts themselves."
10. In case titled Haji Abdul Karim and others v. Messrs Florida Builders (Pvt.) Ltd.
(2012 PLD 247) plaintiff had filed suit for specific performance of a sale agreement , wherein
date fixed in agreement for its completion being 31- 12-1997, while plaintiff filed suit on 07-
01-2003, alleging incompletion of agreement within stipulated period, due to failure and
inability of defendant to perform his part of agreement. Plaint iff had not alleged in plaint that
dates fixed in original agreement had been changed or dispensed with by parties vide any
subsequent express agreement in writing made within original period of limitation by
resorting to novation of contract or acknowledgment in terms of Section 19 of Limitation
Act, 1908. In the above case, the Honorable Supreme Court of Pakistan observed as under,
"We have examined the plaint on the touchstone of the above criteria and find that
from the admittedly executed agreement be tween the parties, which is the document
sued upon the entire case of the petitioners is structured thereupon, it postulates a 'date forced' for the performance thereof and no case for the exemption, the enlargement and the exclusion of period of limitatio n has been set out, in the pliant as
per Order VII, Rule 6, C.P.C, therefore, the suit undoubtedly appeared from the statement in the plaint to be barred by the limitation and has been rightly rejected by the Courts."
11. In the case Haji Allah Bakhsh v. A bdul Rehman and others (1995 SCMR 459), the
Honorable August Court observed that averment contained in plaint are presumed to be correct.
12. In the case of Pakistan Agricultural Storage and Services Corporation Ltd. v. Mian
Abdul Latif (PLD 2008 SC 371), the august Court of Pakistan held that object of Order VII, Rule 11, C.P.C. was primary to save the parties from the rigorous or frivolous litigation at the very inception of the proceedings.
13. In the case titled Noor Din and others v. Additional Distric t Judge, Lahore and others
(2014 SCMR 513), after 40 years gift was challenged by the legal heirs, their predecessor not challenged in their life time, the Honorable Supreme Court observed as under,
"It may be noted that this is not a case of inheritance. According to the revenue record
the daughters of Mandoo Khan were recorded as legal heirs upon his death in the year 1951. Twenty years after becoming owners they gifted their shares to their brother, Dhoop Khan. The possession admittedly had remained wit h Dhoop Khan who died in
the year 2002 and thereafter his legal heirs, namely, the petitioners. The present suit was filed in the year 2012, more than forty years after the gift mutation. The object of the powers conferred upon the trial Court under Order VII, Rule 11, C.P.C. is that the Courts must put an end to the litigation at the very initial stage when on account of some legal impediments full fledged trial will be a futile exercise. In view of the above facts the suit of the plaintiffs/respondents challenging the gift mutation was on the fact of the record barred by time and there was no need for recording of evidence. Consequently, this petition is converted into appeal and allowed. The impugned judgment and orders are set aside, the application of t he petitioners under Order VII,
Rule 11, C.P.C. is allowed and the suit filed by respondents Nos.3- 18 is therefore
dismissed as barred by time."
14. In the case title Muhammad Rustam and others v. Mst. Makhan Jan and others (2013
SCMR 299), the Honorable S upreme Court held as under,
"In Abdul Haq v. Mst. Surraya Begum (2002 SCMR 1330), this Court inter alia was
seized of a similar issue and while dismissing the petition, it observed as follows: -
"11. Atta Muhammad was deprived of right to inherit the property as a consequence of mutation in dispute but he did not challenge the same during his lifetime. The petitioners claimed the property through Atta Muhammad as his heirs who filed the suit as late in 1979 about nine year after the sanction of mutation which had already been given effect to in the record of rights. The petitioners, therefore, had no locus standi to challenge the mutation independently for Atta Muhammad through whom they claimed inheritance himself had not challenged the same during his lif eime."
15. In the instant case, the petitioners filed the suit on 24- 03-2018 for declaration and
cancellation of mutation entries carried out in year 1969/70 and challenged the same after 48 years. Paragraph No.3 of plaint makes it clear that predecessor of the petitioners were well aware about impugned mutation entries, but they did not challenge said mutation in their life time, nor petitioners/plaintiffs have set out their case in the plaint for the exemption, the enlargement and exclusion of period of l imitation as provided under Order VII, Rule 6,
C.P.C., therefore, suit of the petitioners appeared from statement in the plaint to be barred by limitation, has been rejected in accordance with law, thus warrants no interference by this Court.
In view of t he above, the Constitutional Petition No(s). 70 of 2021 is dismissed.
Parties are left to bear their own cost.
ZH/173/Bal. Petition dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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