-If one assumes contents of plaint to be factually correct, then it is clear that plaint did disclose a cause of action, which was recurring in nature and by no dint of imagination plaint could have been rejected under Order VII Rule 11 C.P.C.--

 PLJ 2021 Peshawar 32

Civil Procedure Code, 1908 (V of 1908)--

----S. 115 & O.VII R. 11--Specific Relief Act, (I of 1877), S. 12--Suit for specific performance--Application for rejection of plaint during pendency of suit--Allowed--Appeal--Dismissed--True nature of controversy--Mis-appreciation of contents of plaint--Erroneous perception of law--Miscarriage of justice--Courts below have not been able to understand true nature of controversy as brought before them through plaint of plaintiffs/petitioners--They have failed to note that rights of plaintiffs/petitioners sought to be impleaded, had not only been arising from contract but such a contract had in-fact been executed in respect of distribution of immovable property which had been inherited by parties from their common predecessor--Stage at which Civil Court has decided application under Order VII Rule 11 C.P.C, contents of plaint should have been presumed to be factually correct--If one assumes contents of plaint to be factually correct, then it is clear that plaint did disclose a cause of action, which was recurring in nature and by no dint of imagination plaint could have been rejected under Order VII Rule 11 C.P.C.--Both judgments and decrees, impugned herein are found to have been based on mis­appreciation of contents of plaint and deed relied upon by plaintiffs/petitioners, erroneous perception of law and have resulted into miscarriage of justice-- Revision petition was allowed. [Pp. 34 & 36] A, B & C

PLD 2005 SC 511 and 2012 CLC 1726 ref.

Mr. Ali Baz Khan, Advocate for Petitioners.

M/s. Akhtar Munir Khan and Aurangzeb, Advocates for Respondents.

Date of hearing: 18.9.2020.

 PLJ 2021 Peshawar 32
[Mingora Bench (Dar-ul-Qaza), Swat]
Present: Wiqar Ahmad, J.
REHMAT HAYAT and 11 others--Petitioners
versus
RAFIQ AHMAD KHAN and 6 others--Respondents
C.R. No. 447-M of 2018, decided on 18.9.2020.

Judgment

This order is directed to dispose of the petition filed by petitioners under Section 115 of the Code of Civil Procedure, 1908 (hereinafter referred to as "CPC'').

2. Plaintiffs/petitioners had brought a suit against defendants/ respondents for specific performance of an agreement/ partition deed bearing No. 191-C dated 12.09.1995. In prayer "Bay" they had also prayed for recovery of Rs. 47,80,000/- from defendants/Respondents No. 1 to 6 on the dint of deed No. 189 dated 12.09.1995. Plaintiffs/ petitioners had also sought permanent injunction to the effect that defendants No. 1 to 5 be restrained from any sort of interference in the property in dispute.

3. Defendants/respondents were summoned by learned civil Court, who appeared before learned trial Court and filed an application for rejection of plaint under Order VII Rule II C.P.C mainly on the ground that plaintiffs/petitioners had never agitated the issue of partition during lifetime of their predecessor-in-interest, (who had in-fact died in the year 2002). They have also contended that plaintiffs have no cause of action to file the instant suit. Said application was duly contested by plaintiffs/petitioners and other set of defendants by filing their separate written replies. Learned civil Court vide order dated 03.04.2017 allowed the application filed by defendants/ respondents by invoking the provisions of Order VII Rule II C.P.C. Feeling aggrieved there-from petitioners/appellants filed an appeal Bearing No. 50/13 of 2018 before learned appellate Court, which was also dismissed vide impugned order dated 03.11.2018. Feeling aggrieved from orders of learned Courts below, petitioners have invoked the revisional jurisdiction of this Court under Section 115 CPC.

4. I have heard arguments of learned counsel for the parties and perused the record.

5. Perusal of judgment of learned appellate Court dated 03.11.2018 reveals that the order for rejection of plaint by the learned civil Court has been upheld in the case in hand for two reasons viz; (a) that the suit was found to have barred by law of limitation, as the period of three years had been provided for specific performance of a contract, but the suit had been brought after 20 years from the date of execution of the deed i.e. 12. 09.1995. (b); that the deed had been executed between the predecessor-in-interests of the parties, therefore the successors had no right to bring a suit thereupon. The Courts below have not been able to understand the true nature of the controversy as brought before them through the plaint of the plaintiffs/petitioners. They have failed to note that rights of the plaintiffs/petitioners sought to be impleaded, had not only been arising from contract dated 12.09.1995 but such a contract had in-fact been executed in respect of distribution of immovable property which had been inherited by the parties from their common predecessor. Plaintiffs/petitioners had asserted in their plaint that in pursuance to such a scheme of partition of inherited property as incorporated in deed dated 12.09.1995 predecessor-in­interest of defendants/respondents had' obtained possession of part of the inherited property and had also disposed it off, while he had been possessing house and Hujra which had fallen to the share of plaintiffs/petitioners in the suit, (same had later on been occupied by his successors). Plaintiffs/petitioners had also prayed for grant of mesne profit as rent, according to the deed, till the disposal of the suit or execution of the decree, which was a recurring cause of action and if the contents of the deed are accepted to be true, then the cause of action gets renewed with passage of each month. The stage at which the learned civil Court has decided the application under Order VII Rule II C.P.C, the contents of the plaint should have been presumed to be factually correct. If one assumes the contents of the plaint to be factually correct, then it is clear that the plaint did disclose a cause of action, which was recurring in nature and by no dint of imagination the plaint could have been rejected under Order VII Rule II C.P.C. Hon'ble Apex Court in its judgment in the case of Muhammad Saleemullah and others vs. Additional District Judge, Gujranwala and others" reported as PLD 2005 Supreme Court 511 has held that for the purpose of disposal of an application under Order VII Rule C.P.C contents of the plaint are to be presumed to be correct. Relevant part of findings of the august Court are reproduced for ready reference:

        Order VII, Rule 11, C.P.C. contemplates rejection of plaint only on the basis of averments made in the plaint to consider whether there is failure of cause of action or the suit is barred under some provision of law but the plaint cannot be rejected under Order VII, Rule 11, C.P.C. on the basis of pleas raised by the defendant in the written statement in this defence as at this stage, the pleas are only contentions which are not based on the evidence. Order VII, Rule 11, C.P.C. becomes operative only when the plaint is liable to be rejected on the basis of its contents taken to be true and correct but the Court can also rely upon the documents annexed to the plaint and brought on record with written statement to consider the question of application of Order VII, Rule 11, C.P.C."

Similar finding had also been recorded by this Court in its earlier judgment in the case of Qayum Nawaz through LRs vs. Allah Nawaz through LRs reported as 2012 CLC 1726 in the following manner;

"While rejecting the plaint the Court has only to see the averments in the plaint and if on admitting all the grounds mentioned therein as correct, petitioners plaintiff are not found to be entitled for the decree in their favour, the plaint is liable to be rejected but if the grounds pleaded in the plaint require leading of evidence in support thereof, the plaint cannot be rejected. Secondly; the cause of action is also taken into consideration while rejecting the plaint, but without specifying in the impugned order that how the petitioners­plaintiffs have no cause of action to file the instant suit, the plaint has been rejected. Apparently oral agreement is stated to have been entered between the predecessor of the parties and certain payments have also been made. Moreso, the terms and conditions of the oral agreement have also been specified by the petitioners-plaintiffs. These are the essentials constituting the cause of action. As such the petitioners-plaintiff have a cause of action and the suit of the petitioners-plaintiffs is maintainable. On cursory assessment, the suit of the petitioners­ plaintiffs seems to be maintainable and likewise it appears from the plaint that they have cause of action to file the instant suit."

6. Besides, limitation is a mix question of law and fact as held by Hon 'ble Apex Court in the case of "Haji Abdul Sattar and others vs. Farooq Inayat and others" reported as 2013 SCMR 1493. The two Courts below have tried to resolve the question of limitation without allowing the plaintiffs/petitioners to record evidence in support of the plaint, which exercise of jurisdiction cannot be termed as appropriate in the circumstances of the case.

7. In light of what has been discussed above, both the judgments and decrees, impugned herein are found to have been based on mis­appreciation of the contents of the plaint and the deed relied upon by plaintiffs/petitioners, erroneous perception of law and have resulted into miscarriage of justice. Both the impugned judgments and decrees are therefore set aside by allowing the instant revision petition. The plaint shall be deemed to have been pending before the learned civil Court at a stage where it was rejected under Order VII Rule 11 C.P.C. At conclusion of proceedings in the case and while disposing of the matter through final judgment, the costs shall follow the event, for which purpose both the parties shall file schedules of their costs during pendency of the suit so as to avoid confusion after final disposal of the suit. In case, the learned civil Court declines to grant costs to the successful party it shall give its reasons in writing thereof.

(Y.A.)  Revision petition allowed