Rukhsana and others V. Asmatullah and 3 others,

PLJ 2018 Quetta 15 (DB) Present: MRS. SYEDA TAHIRA SAFDAR AND ZAHEER -UD-DIN KAKAR , JJ. RUKHSANA and others --Appellants versus ASMATULLAH and 3 others --Respondents R.F.A No. 56 of 2011, decided on 29.05.2017. Civil Procedure Code, 1908 (V of 1908) -- ----O. VII R. 11--Rejection of plaint --Principle --Consideration--Validity --Before rejecting a plaint Court had to see that when averment made therein if accepted in mode form do not entitle plaintiff to a relief, it can reject plaint--Provisions O.VII R. 11, CPC can only be invoked, if there is no room for any other approach to case and that no triable issue is made out in case. [P. 18] A Civil Procedure Code, 1908 (V of 1908) -- ----O. VII R. 11-- Rejection of plaint --Principle --Contents of plaint and written statement-- Validity --Courts are required to see mainly averments of plaint avoiding deeper examination of contents of written statement. [P. 19] B Civil Procedure Code, 1908 (V of 1908) -- ----O. VII R. 11-- Rejection of plaint --Principle --Validit y--Plaint cannot be rejected gradually -- Plaint can only be rejected if all reliefs claimed by plaintiff are barred under law --If one prayer is maintainable, plaint cannot be rejected --Under Order VII Rule 11, CPC. [P. 19] C Mr. Habib Tahir , Advocate for Appellants Syed Ayaz Zahoor, Advocate for Respondents No. 1 to 3. Mr. Farooq Anwar , Advocate for Respondent No. 4 Date of hearing: 3.5.2017. J UDGMENT Zaheer -Ud-Din Kakar, J.--The appellants (plaintiffs) have called in question the order and decree dated 20. 6.20111 (the impugned order and decree) passed by the Senior Civil Judge -II, Quetta (the trial Court) whereby the application under Order VII Rule 11, C.P.C. filed by the Respondents No. 1 to 3 was accepted and the suit filed by the appellants (plaintiffs) was rejected.

2. Precisely stated facts of the case are that the predecessor of the appellants (plaintiffs) filed a suit for specific performance and permanent injunction before the trial Court with the following prayer: - (a) Directing the Defendant No. 1 to receive the balance amount of Rs.5,94,000/ - from the plaintiff and to transfer and hand over the vacant possession of the property bearing Khasra Nos. 417, 418, 419 measuring 305 Sq.Ft: situated at Mahal and Mouza Ward No. 19 Tappa Urban Saddar, Tehsi l & District Quetta. (b) The Defendant No. 2 be directed to hand over the vacant possession of suit property to the plaintiff. (c) The Defendant No. 1 and 2 be permanently restrained from alienating, transferring, exchange, mortgage and any kind of change in the nature of the property till the disposal of the suit. (d) All cost of the suit. (e) Any other relief which this Honourable Court deems fit and proper in the circumstances of the case may kindly be awarded to the plaintiff.

3. The defendants (respondents) contested the suit by filing the written statements and denied the claim of the plaintiffs. Out of divergent pleadings of the parties, following issues were framed on 8.6.2005:

1. Whether the suit of plaintiff is not maintainable in view of preliminary legal objections B, F, and H of the written statement raised by Defendant No. 1?

2. Whether the plaintiff is entitled for the transfer and vacant position (sic) of disputed property bearing Khasra No. 417, 418, 419 measuring 305 Sq:Ft : situated at Mohal and Mouza Ward No. 19 Tappa Urban Saddar, Tehsil and District Quetta in lieu of payment of balance amount Rs.594,000/ - to the Defendant No. 1?

3. Whether the plaintiff is entitled to the relief claimed for?

4. During pendency of the ca se before the trial Court, on death of Haji Nazar Ali Khan (Defendant No. 1) his legal heirs were brought on record as Defendant Nos. 1 to 3 while during pendency of this appeal Haji Naimatullah died and his legal heirs were impleaded as appellants.

5. Fr om perusal of the record, it appears that prior to the impugned order and decree, the trial Court by accepting the legal objections (Limitation and Resjudicata) dismissed the suit vide order dated 10.10.2005. Being aggrieved of the said order, the predeces sor of the appellants/plaintiffs filed R.F.A No. 39/2005 before this Court, which was accepted vide order dated 28.4.2010 and the case was remanded to the trial Court in the following terms: “In view of above stated facts and circumstances, we feel that th e impugned order and decree dated 10.10.2005 passed by Senior Civil Judge -II, Quetta is patently illegal and unlawful, resultantly, same is set -aside by accepting the appeal and case is remanded back to the trial Court to proceed the same in accordance wit h law after providing full opportunity to the parties.”

6. After remand, when the suit was subjudice in the trial Court, the Respondent Nos. 1 to 3 (Defendant Nos. 1 to 3) filed an application under Order VII Rule 11, CPC, which was contested by the appel lants (plaintiffs) by filing rejoinder. The trial Court, after hearing the parties on the said application, once again rejected the plaint vide impugned order and decree dated 20.6.2011, hence this appeal.

7. Learned counsel for the appellants (plaintiffs ) contended that the Respondents No. 1 to 3 filed application under Order VII Rule 11, CPC with the prayer that their names may be deleted from the column of the defendants, but the trial Court contrary to the prayer, rejected the plaint; that the valuable rights of the appellants are involved in the matter, as such, the trial Court was required to decide the matter on merit; that the trial Court by misinterpreting the Order VII Rule 11, C.P.C. rejected the plaint; Lastly, he prayed for setting aside the im pugned order and remand of the case to trial Court for deciding the same on merits.

8. Learned counsel for the respondents vehemently opposed the appeal and defended the impugned order.

9. We have heard learned counsel for the parties and have gone throu gh the record and the provisions laid under Rule 11 of Order VII., C.P.C., which reads as under: “11. Rejection of plaint. --The plaint shall be rejected in the following cases:-- (a) Where it does not disclose a cause of action; (b) Where the relief claimed is under -valued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so; (c) Where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp -paper within a time to be fixed by the Court, fails to do so; (d) Where the suit appears from the statement in the plaint to be barred by any law.

10. A plain reading of the above Rule abundantly makes it clears that a plaint can be rejected, where it does not disclose a cause of action; where the relief claimed is undervalued and the plaintiff, on being required by the Court to correct the valuation within a time to be fi xed by the Court, fails to do so; where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp paper within a time to be fixed by the Court, fails to do so; where the suit appears from the statement in the plaint to be barred by any law. We have gone through the plaint in detail and have come to safe conclusion that none of the above defects, prima facie , appear in the plaint leading same to be rejected.

11. Before rejecting a plaint the Court has also to see that when the averment made therein if accepted in mode and form, do not entitle plaintiff to a relief, it can reject the plaint. Provisions of Rule 11, Order VII, C.P.C. can onl y be invoked, if there is no room for any other approach to the case and that no triable issue is made out in the case or suit is clearly hit by any mandatory provision of law, justifying rejection of the plaint. While deciding the application like under consideration, the Courts are required to see mainly the averments of the plaint avoiding deeper examination of the contents of the written statement.

12. The claim made in the plaint and denial of the same by answering defendants being serious in nature are required to provide opportunity to the parties to produce evidence in support of their respective claims so that the controversies may be determined after providing full opportunities to the parties to meet the points. The instant case, in our opinion, demands thorough investigation, so that the precious rights of the parties be determined finally. Furthermore, it is an elementary principle of law that the plaint cannot be rejected in piecemeal, plaint can only be rejected if all the reliefs claimed by the plaintiff are barred under the law. Even if one prayer is maintainable, the plaint cannot be rejected under Order VII, Rule 11, CPC.

13. In view of the above discussion, the appeal is allowed. The impugned order and decree dated 20.6.2011, passed by the Senior Civil Judge -II, Quetta are hereby set aside and the matter is remanded back to the trial Court with direction re -frame the issues properly, give proper opportunities to the parties to produce their respective evidence and decide the case preferably within a period of four (04) mouths from the date of receipt of this order. There is no order as to cost. (W.I.B.) R.F.A. Accepted