PLJ 2006
Present: Ijaz-ul-Hassan, J.
HIDAYAT ULLAH KHAN--Petitioner
versus
YAQOOB KHAN MARWAT--Respondent
C.R. No. 1381 of 2004, decided on 8.5.2006.
(i)
Interpretation of Rules--
----Rules for the advancement of justice
and not to defeat ends of justice--Rules framed in the Code of Civil Procedure
are Rules made for the advancement of justice and they should not, as far as
possible be allowed to defeat the ends of justice. [Pp. 229 & 230] E
(ii)
Civil Procedure Code, 1908 (V of 1908)--
----O. VII R. 11--Rejection of
plaint--Court should reject a plaint which is manifestly meritless and
vexatious and does not disclose a clear right to sue--Fruitless litigation is
required to be buried at its inception to avoid the wastage of time of Court
and unnecessary harassment to opposite party. [P.
229] A
(iii)
Duty of Court--
----Question of rejection or return of
plaint--Duty of the Court to examine plaint before issuance of
summons--Validity--It is the duty of the Court before which a suit is
instituted before issuance the summons to examine the plaint for the purpose of
determining whether the plaint should be returned or rejected--Plaint cannot be
rejected summarily where issues framed including question of
maintainability--Where issues have been framed, including question of
maintainability of suit, parties must be allowed to lead evidence and plaint
cannot be summarily rejected--Plaint cannot be rejected where the plain reading
of it discloses cause of action--Validity--Contents of plaint that have to be
kept in view and if their plain reading discloses a cause of action, the plaint
cannot be rejected because quite formidable objections were raised in defence. [P. 229] B & C
(iv)
Civil Procedure Code, 1908 (V of 1908)--
----O. VII R. 11--Rejection of
plaint--Maintainability--Violation of mandatory provision of law--Held: Trial
Court committed an illegality by passing the impugned order for rejecting of
plaint--Controversy could not be decided without recording evidence--Evidence
should have been recorded thereon and thereafter it should have been decided. [P. 229] D
(v)
Civil Procedure Code, 1908 (V of 1908)--
----O. VII, R. 11--Rejection of
plaint--Plaint does not disclose any cause of action--Scope--Court should
reject a plaint which is manifestly meritless and vexatious and does not
disclose a clear right to sue--Rejection at preliminary stage--Held: Rejection
of plaint is possible at preliminary stage when plaintiff has not led evidence
in support of his case--Petition allowed. [P.
230] F
1993 SCMR 2039, PLD 2002
Mr. Muhammad Arif Khan, Advocate for
Petitioner.
Mr. Abdus Samad Khan, Advocate for
Respondents.
Date of hearing : 21.4.2006.
Judgment
Hidayatullah, plaintiff instituted suit
against Yaqoob Khan Marwat, defendant, the then Director, Anti-Corruption
Establishment, Peshawar, seeking recovery of Rs. 10,00,000/- as damages for
mental torture and loss of reputation for maliciously involving the plaintiff
in a false corruption case.
2.
The facts which I have been able togather from the record of the case
are, that while posted as Executive Engineer at Bannu, the residents of Sarwar
Mama Kehl, Tehsil Lakki Marwat, District Bannu, submitted an application to the
Ministry of Interior and Director Anti-Corruption, Peshawar containing serious
allegations of corruption and irregularities against the petitioner. An
inquiry, in pursuance thereof, was conducted by the Sub-Inspector (Anti
Corruption Establishment) and the allegations were not proved and the Assistant
Director Crimes (Anti-Corruption Establishment) recommended that the case be
dropped against the petitioner. However, the respondent put the case to Anti
Corruption Committee No. 1 for appropriate action. Finally, the petitioner
having been found not guilty was exonerated of the charge.
3.
The defendant in his written statement repudiated the allegations of the
plaintiff and pleaded that suit was incompetent, not maintainable and barred
under the expressed provisions contained in Section 5 of West Pakistan Anti
Corruption Establishment Ordinance (Ordinance XX) 1961, read with Section 42 of
the Police Act, 1861.
4.
Consequent upon moving of an application under Order 7 Rule 11 CPC, the
trial Court framed preliminary issues for adjudication as under:--
1. Whether
the suit is maintainable in its present form?
2. Whether
the suit is barred by any law?
3. Relief.
5.
The learned Civil Judge, Peshawar, seized of the matter, accepted the
application and rejected the plaint by his order dated 10.7.1999, mainly on the
ground that defendant having acted in his official capacity, cannot be
prosecuted in any manner and suit was not maintainable. An appeal was preferred
thereagainst, which did not bear fruit. The same was dismissed by learned
Additional District Judge,
6.
Feeling aggrieved thereby, the petitioner has approached this Court by
filing instant civil revision under Section 115 CPC, which is before me for
consideration.
7.
Mr. Muhammad Arif Khan, Advocate, appearing on behalf of the petitioner,
contended, inter alia, that the judgments and decrees of both the Courts below
are against law and facts of the case; that same have been recorded in a
mechanical manner without recording evidence whereby mandatory provisions of
law have been violated and that the Courts below have failed in appreciating
the plea of the petitioner that all the proceedings taken up, acts done and
order passed by the defendant were motivated by bad intention and ulterior
motive, which dis-entitle him to the protection given by the relevant law. The
learned counsel added that only bonafide acts/mistakes have been condoned by
the relevant law and by ignoring the aforesaid legal position, the trial Court
as well the appellate Court have failed in the exercise of jurisdiction so
vested in the learned Courts. In the last limb of argument, the learned counsel
reiterated that the appellate Court has erred, while holding that audit report
also supported the allegations, while actually the audit reports held
responsible the Sub-Divisional Officer, Sub-Engineer and Tube-Well Operator
only. To augument the contentions, reliance was placed on Mst. Karim Bibi and
others vs. Zubair and others (1993 SCMR 2039), Muhammad Zaman & others vs.
Shah Wazir Khan (PLD 2002 Peshawar 45) and Kanwar Qutubuddin Khan vs. Karachi
Development Authority through Director General (CLC 2002 Karachi 634).
8.
Mr. Abdul Samad Khan, Advocate, representing the respondent, on the
other hand, fully supported the judgments and decrees of the two Courts below
and reiterated that in order to re-invoke the applicability of Order 7, Rule
11(a) CPC, the Court has to look into the contents of the plaint only and has
to examine the plaint on its face value. If the plaint by itself, indicates any
infirmity in clause (a) to (d) or R. 11 O. VII, then the Court should order
rejection of plaint as the fruitless litigation required to be burred at its
inception to avoid the wastage of time of Court and unnecessary harassment to
opposite party. The learned counsel added that Court while rejecting the plaint
under Order--VII Rule 11 cannot take into consideration the plea of the
defendant when such plea is disputed and denied by the plaintiff. To augument
the contentions, reliance was placed on 1994 SCMR 826 and PLD 2002 Peshawar 45,
Nazeer Ahmad and others vs. Ghulam Mehdi and others (1988 SCMR 826) and 2003
YLR Peshawar 712).
9.
Having considered the submissions of learned counsel for the parties in
the light of the material on record and the case law cited at the bar, I am of
the view that the contentions of learned counsel for the petitioner carry
weight and must prevail. No doubt it is true that the Court should reject a
plaint which is manifestly meritless and vexatious and does not disclose a
clear right to sue, as the fruitless litigation is required to be buried at its
inception to avoid the wastage of time of Court and un-necessary harassment to
opposite party as held in PLD 2002 Peshawar 45 but the fact cannot be lost
sight of that in the instant case, the plaint of the petitioner vividly
discloses cause of action and the relevant law of damages is clearly attracted
to the facts narrated in the plaint. It is duty of the Court before which a
suit is instituted before issuance the summons to examine the plaint for the
purpose of determining whether the plaint should be returned under Rule to anti
or rejected under Rule 11. Ordinarily as soon as the cause of rejection
appears, the plaint should be rejected straightaway, for such a suit should be
taken off the file at its very inception and the plaintiff allowed opportunity
to retrace his steps as permitted by Rule 13 post. However, where issues have
been framed, including one on the question of maintainability of suit, the
parties must be allowed to lead evidence and the plaint cannot summarily be
rejected. It is always the contents of the plaint that have to be kept in view
and if their plain reading discloses a cause of action, the plaint cannot be
rejected simply because quite formidable objections are raised in defence, as
held in 1986 CLC 1181. In this case, the averment made in the plaint is that
the respondent allegedly involved the petitioner in a false case of corruption
and damaged his reputation and caused mental torture, in which he was
consequently exonerated. True or false, the allegation apparently disclosed
commission of a tortuous act on the part of the respondent and the petitioner
was made to suffer for more than two years. He complained of agony and
huminilitation at the hands of the respondent and ostensibly could ask for
re-compensation in the shape of damages. Since Issue No. 1 had already been
framed regarding this controversy, therefore, the trial Court committed an
illegality by passing the impugned order for rejection of the plaint. The
controversy could not be decided without recording evidence. Evidence should
have been recorded thereon and thereafter it should have been decided. The
learned trial Court after having reflected he said controversy in Issues Nos. 1
and 2, should have decided the suit after recording evidence in order to do
complete justice between the parties. It was observed in Irshad Ali's case (PLD
1995 SC 629), that:--
"A party should not be denied a
relief on account of technicalities in the procedural law, as the same is
formed for the purpose of regulating the legal proceedings, they are extended and
designed to foster the cause of justice rather than to defeat it."
10.
It is settled principle of law that the rules framed in the Code of
Civil Procedure are
Rules made for
the advancement of
justice and they should not, as far as possible be allowed to defeat the
ends of justice, as held in Muhammad Sarwar's case (1980 CLC 946).
11.
Where the plaint does not disclose any cause of action, it has to be
rejected and for this purpose only the plaint is to be looked into and nothing
else. The Court should reject a plaint which is manifestly meritless and
vexatious and does not disclose a clear right to sue. The rejection of plaint
is possible at preliminary stage when plaintiff has not led evidence in support
of his case. Court can reject the plaint only if Court reaches at such
conclusion after considering statement made in plaint and other material
available on record which plaintiff admits as correct.
12.
In the result and for the foregoing reasons, this revision petition is
accepted, judgments and decrees of both the Courts below are set aside and the
case is remanded to the trial Court with direction to decide the same on merit,
preferably within six months, after receiving the order of this Court. There
shall be no order as to costs. The parties shall appear before the trial Court
on 15.5.2006. The office is directed to send the record forthwith to the trial
Court.
(Rao Farid-ul-Haque Khan) Petition allowed