P L D 2024 Balochistan 101
Before Muhammad Ejaz Swati, J
KHRUM SHEZAD ZAFAR and 2 others ---Petitioners
Versus
RAZIA BEGUM and 2 others ---Respondents
Civil Revision No. 329 of 2022, decided on 29th November, 2022.
Civil Procedure Code (V of 1908) ---
----O. VII, R.11--- Specific Relief Act (I of 1877), Ss. 39 & 12--- Suit for cancellation of gift -
mutation and restoration of possession of suit -property--- Rejection of plaint ---Averments of
the plaint--- Cause of action ---Relief(s) sought for ---Evidence, requirement of ---Scope ---
Plaintiff/lady, apart from cancellation of mutation, sought second relief praying restoration
of her possession over two rooms constructed by her claiming that she was forcibly dispossessed without adopting proper course of law ---Civil Court rejected the plaint of the
lady/ plaintiff allowing an application filed by the defendants, however, the Appellate Court partly allowed plaintiff's appeal remanding the case with a direction to decide the second relief/prayer on merit ---Contention of the petitioners/defendants was that gift -mutation was
admitted ---Plea of the respondent /plaintiff was that evidence was required in respect of
second limb /relief sought by her ---Validity ---While deciding an application under O. VII, R.
11 of the Civil Procedure Code, 1908, only averments of the plaint were to be taken into
consideration and every case was to be decided as per its own peculiar fact and
circumstances ---Respondent/plaintiff beside seeking cancellation of the impugned gift also
sought relief for restoration of her possession of two rooms, which were allegedly
constructed by her and said fact was also admitted in another suit filed by the petitioners which was already decreed ---Since the respondent/plaintiff was allegedly forcibly
dispossessed from the suit -property without adopting proper course of law, and in respect of
second limb of her prayer the suit did not fall in the penal provision of O. VII, R. 11 of the Civil Procedure Code, 1908--- Trial Court considered only one prayer/relief while deciding
application filed by the petitioners/ defendants under O. VII, R. 11, of the Civil Procedure Code, 1908--- Suit could be considered and decided independently on the basis of pleadings
and evidence of the parties with regard to the other prayer ---Such partial rejection, as in the
present case, was not permissible under the law ---Appellate Court for justifiable reason had
set-aside the order of the Trial Court, therefore, impugned order passed by the Appellate
Court did not call for any interference by the High Court ---Revision was dismissed, in
circumstances.
Jewan and 7 others v. Federation of Pakistan through Secretary, Revenue, Islamabad
and 2 others 1994 SCMR 826; Mrs. Anis Haider and others v. S.Amir Haider and others 2008 SCMR 236; Saleem Malik v. Pakistan Cricket Board and 2 others PLD 2008 SC 650; Jeewan Shah v. Muhammad Shah and others PLD 2006 SC 202; S.M. Shafi Ahmed Zaidi through legal heirs v. Malik Hassan Ali Khan (Moin) through legal heirs 2002 SCMR 338; Pakistan Agricultural Storage and Services Corporation Ltd. v. Mian Abdul Latif and others PLD 2008 SC 371; Ch. Muhammad Siddique and another v. Mst. Faiz Mai and others PLD 2012 SC 211; Haji Abdul Karim and others v. Messrs Florida Builders (Pvt.) Limited PLD 2012 SC 247 and Rashid Ahmed and others v. Nazar Hussain and others 2022 SCMR 1842 ref.
Shahid Javed Nagi for Petitioners.
Tariq Ali Tahir for Respondent No.1.
Date of hearing: 25th November, 2022.
JUDGMENT
MUHAMMAD EJAZ SWATI, J. ---Respondent No.1 (Razia Begum) plaintiff was
working as hostel warder in health department Government of Balochistan. She is unmarried
and is more than sixty years of age. Plaintiff sister namely Shamim Akhtar husband died in the year 1991 and her sister also died in the year 1993. The petitioners (defendants) are sons of the plaintiff's sister. The plaintiff averred in the plaint that she her on source purchased property measuring 0 Rod, 7- 3/4 Polls, bearing Khasra No.77, Mutation No.2742/2797,
situated in Mohal Chashma Hudda, Mouza Hudda, Tappa Saddar -I, Tehsil and District
Quetta (property in dispute) and gifted to her nephews i.e. petitioner and respondent No.2 due to love and affection. It was further averred that she also constructed two rooms over the property in dispute and occupied the said rooms for herself. The plaintiff was forcibly dispossessed by the defendants from the property in dispute, therefore, she in her suit has sought two reliefs against the defendants i.e. for cancellation of gift of mutation and restoration of her possession of the two rooms from which she had been dispossessed without adopting proper course of law. The petitioners instead of filing written statement filed an application under Order VII, Rule 11, Civil Procedure Code (C.P.C.) on ground that in the plaint no cause of action has been disclosed, therefore, suit is liable to be rejected. The
learned Civil Judge -III Quetta (trial court) vide order dated 9- 3-2022 rejected the plaint. On
appeal filed by the respondent No.1, the learned District Judge Quetta (appellate court) vide
order dated 23 -5-2022 (impugned order) partly allowed the appeal and set aside the order of
the trial court and remanded the case to the trial court with a direction to decide the case on merit and in accordance with law.
2. The learned counsel for the petitioners contended that averments made in the plaint
clearly manifest that the property in question was gifted by plaintiff to the petitioners and mutation thereof was also entered accordingly. That after completion of the transaction the said transfer cannot be cancelled as no fraud or misrepresentation has been alleged. That
plaintiff itself disclosed that property in dispute was mutated in favour of the defendants and
in absence of any fraud and misrepresentation on the part of the defendants there was no
cause of action for cancellation of mutation in dispute. That petitioners had also filed a suit for partition of the property in dispute against the respondent No.2, which was decreed vide judgment/decree dated 31 -7-2019 passed by learned Senior Civil Judge -IV Quetta, wherein
entitlement of the defendants has been decided, therefore, instant suit was barred by law. That the appellate court has failed to consider the provision of Order VII Rule 11, C.P.C. in the light of plaint in its true perspective and thus committed glaring illegalities and irregularities, on the basis whereof impugned order passed by the appellate court is liable to be set aside.
3. The learned counsel for the respondent No.1 contended that the plaintiff in her suit
has sought two relief i.e. cancellation of mutation of gift and secondly restoration of her possession over the two rooms constructed by her, from where she was forcibly dispossessed without adopting proper course of law, therefore, in respect of second limbs of her grievance the matter between the parties required determination through evidence, therefore, the appellate court after proper appreciation of controversy between the parties passed the impugned order.
4. Having heard the learned counsel for the parties and perused the record. It is settled
legal position that while deciding an application under Order VII, Rule 11, C.P.C., only averment of the plaint are to be taken into consideration and every case is to be decided as per its own peculiar fact and circumstances. In case titled Jewan and 7 others v. Federation of Pakistan through Secretary, Revenue, Islamabad and 2 others (1994 SCMR 826), the Honorable Supreme Court of Pakistan articulated the principle for rejection of plaint as under,
"A plain reading of the Order VII, Rule 11, C.P.C. would show that the rejection of plaint under this prevision of law is contemplated at a stage when the Court has not recorded any evidence in the suit. It is for this reason precisely, that the law permit
consideration of only averments made in the plaint for the purpose of deciding
whether tile plaint should be rejected or not for failure to disclose cause of action or the suit being barred under some provision of law. The Court while taking action for rejection of plaint under Order VII, Rule 11, C.P.C. cannot take into consideration pleas raised by the defendant in the suit in his decease, as at that stage the pleas raised by the defendants are only contentions in the proceedings unsupported by any evidence on record. However, if there is some other material before the Court apart from the plaint at that stage which is admitted by the plaintiff, the same can also be
looked into and taken into consideration by the Court while rejecting the plaint under
Order VII, Rule, 11 C.P.C.. Beyond that the Court would not be entitled to take into consideration any other material produced on record unless the same is brought on record in accordance with the rules of evidence."
5. In the case of Mrs. Anis Haider and others v. S. Amir Haider and others (2008 SCMR
236), the Honorable Supreme Court of Pakistan reiterated that no reliance could be placed on the written statement. In the case of Saleem Malik v. Pakistan Cricket Board and 2 others (PLD 2008 SC 650), the Honorable Supreme Court of Pakistan observed that "the court may in exceptional circumstances consider the regal objection in the light of averment of the
written statement, but the pleading as a whole cannot be taken into consideration for
rejection of plaint". Further reliance is also placed on case titled Jeewan Shah v. Muhammad
Shah and others (PLD 2006 SC 202), in case titled S.M. Shafi Ahmed Zaidi through legal heirs v. Malik Hassan Ali Khan (Moin) through legal heirs (2002 SCMR 338), in case titled Pakistan Agricultural Storage and Services Corporation Ltd. and Mian Abdul Latif and
others (PLD 2008 SC 371), in case titled Ch. Muhammad Siddique and another v. Mst. Faiz
Mai and others (PLD 2012 SC 211) and in case titled Haji Abdul Karim and others v. Messrs
Florida Builders (Pvt.) Limited (PLD 2012 SC 247).
6. It is also well accepted principle for deciding an application under Order VII, Rule
11, C.P.C. that plaint in a suit cannot be rejected in piecemeal. Reference in this respect is to be made to case titled Rashid Ahmed and others v. Nazar Hussain and others (2022 SCMR 1842) observed as under,
"Further it is settled now that partial rejection is not permissible under the law. Further, if with regard to any one prayer the jurisdiction of the civil court is barred
and with regard to other prayers it is not, the plaint cannot be rejected. In the instant matter when there are other prayers also the rejection of plaint was not justified by the civil court, therefore, all three fora below fell in error while rejecting the plaint. We grant leave and convert this petition into an appeal and allow the same, the impugned order is set aside. The result would be that the suit will be deemed to be pending before the Civil Court. It is expected that the learned Civil Court will decide the suit within four months after receipt of copy of this order."
7. In the instant case, the plaintiff beside seeking cancellation of the impugned gift also
sought relief for restoration of her possession of two rooms, which was allegedly constructed by the plaintiff and this fact was also admitted in a suit filed by the petitioners, which was decreed vide judgment/decree dated 31 -7-2019. Since the plaintiff was allegedly forcibly
dispossessed from the house without adopting proper course of law and in respect of second limb of her prayer the suit does not fall in the penal provision of Order and Rule ibid. The learned trial court while deciding application under Order VII, Rule 11, C.P.C. considered one prayer. The suit could be considered and decided independently on the basis of pleadings and evidence of the parties with regard to the other prayer. Such partial rejection was not permissible under the law. The learned appellate court on justifiable reason has set aside the order of the trial court therefore impugned order does not call for any interference by this Court.
In view of above, the Civil Revision Petition No.329 of 2022 is dismissed.
MQ/9/Bal. Revision 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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