PLJ 2007
Present: Nadeem Azhar Siddiqi, J.
GHULAM SARWAR and others--Petitioners
versus
Civil Revision No. 136 of 1994, heard on 23.8.2006.
Civil Procedure Code, 1908 (V of 1908)--
----O. VII, R. 11--Rejection of
plaint--Principles--Questions of fact--Limitation--Court though has power to
reject the plaint without any application under O.VII, R. 11, C.P.C.--While
rejecting the plaint under O.VII, R. 11, C.P.C. the controversial question of
facts cannot be resolved and for that purpose the parties are entitled to lead
evidence in support of their respective claims. [P.
248] B
Civil Procedure Code, 1908 (V of 1908)--
----O.VII, R. 11--Rejection of plaint--Duty of Court to
examine the plaint and reject the same suo motu. [P. 248] A
Civil Procedure Code, 1908 (V of 1908)--
----O.VII, R. 11--Rejection of plaint--Factual
controversy--Contents of the plaint are to be taken as true on its face value
while rejecting the plaint--Plaintiffs had claimed that they were the legal
heirs of the deceased who expired issueless and was actual owner of the
land--Such being a factual controversy could not be decided summarily without
allowing the parties to lead their evidence; question of limitation also being
a mixed question of law and facts, issues could be framed in that regard and
rejection of plaint was unwarranted--Judgments passed by Courts were set aside
and the case was remanded to trial Court for deciding the same in accordance
with law after framing the issues and after giving due opportunity to the
parties to lead their evidence in support of their cases.
[P. 248] C, E
& F
Civil Procedure Code, 1908 (V of 1908)--
----O. VII, R. 11--Rejection of plaint--Scope--Plaintiffs
had clearly pleaded that cause of action had accrued to them on 8-10-1991 which
had to be thrashed out after the evidence whether in fact the cause of action
had accrued to the plaintiffs on that day or before that day--Trial Court was
not justified in giving the findings that the knowledge of brother in a certain
transaction of property definitely could be presumed to be the knowledge of his
brother and his family members--Findings of trial Court being based on
presumption and not on the basis of material available on record were liable to
be set aside. [P. 248] D
Mr. A. M. Mobeen Khan, Advocate for Applicants.
Mr. G.D. Shahani, Addl. A.G. for Respondent Nos. 2 and 3.
Mr. Abdul Fattah Malik, Advocate for Respondent No. 3.
Date of hearing: 23.8.2006.
Judgment
Applicants have challenged the judgment dated
In short the facts as pleaded in the suit are that
agricultural land measuring 66-31 acres situated in Deh Soomrani Taluka Lakhi
District Shikarpur was originally belonged to Mehmood Ahmed and others who
agreed to sell and Applicant No. 5 Zafar Ali and Muhammad Hassan Soomro agreed
to purchase the said land in the sum of Rs.73,452 in equal share of 50 paisa
each. Both the purchasers paid an amount of Rs.36,500 as earnest money by
contributing equal amount towards the sale price and the balance was agreed to
be paid at the time of execution of sale-deed. The sale-deed was registered on
It was further pleaded in the suit that the said Muhammad
Hassan Soomro was real uncle of Applicants Nos. 1 to 9 and the real brother of
Applicant No. 10 and he was unmarried and after his death the suit land was
devolved into the appellants being surviving legal heirs of Muhammad Hassan and
are entitled to inherit the same in equal share.
The Defendant No. 3/Respondent No. 3 has moved an
application for partition of the suit land and the Respondent No. 2 issued
notice to Applicant No. 1 and is bent upon to partition the land. It was
further pleaded in the plaint that the Respondent No. 3 has denied the right
and title of the applicants on the portion of the suit land, hence the suit was
filed. It has been pleaded that the cause of action has been accrued to the
applicants on
Along with the plaint an application under Order No.
XXXIX, Rules 1 and 2, C.P.C. was filed by the applicants to which the
Respondents Nos. 1 and 2 have filed their objections.
The Respondent No. 3 have filed an application under
Order XXXIX, Rule 1 read with Section 151, C.P.C. praying therein for the
appointment of a receiver in respect of the suit land. The
plaintiffs/applicants filed counter affidavit to the said application.
The learned trial Court has heard both these applications
together and by order dated
(a) That the
applicants/plaintiffs are not legal representatives of deceased Muhammad Hassan
Soomro nor he has left any immovable property, thus the applicants/plaintiffs
have no locus standi to file the suit.
(b) The
applicants/plaintiffs have failed to prove the ingredients of benami
transaction.
(c) The suit is
time barred.
(d) The suit is
under valued and insufficiently stamped.
The order was challenged by way of appeal before the
District Judge, Shikarpur, who transferred the said appeal to learned IIIrd
Additional District Judge, Shikarpur, who had dismissed the Appeal vide
Judgment dated 4-8-1994.
Learned Appellate Court has held that admittedly Muhammad
Hassan Soomro had not left any property hence its question of distribution into
his legal heirs does not arise. Moreover the appellants have not established
themselves to be the legal representatives of late Muhammad Hassan Soomro as
required by law hence the appellants have no cause of action or locus standi to
file the present suit. Although their suit is properly valued and stamped but
is hopelessly time-barred.
The learned counsel for the applicants has contended that
the learned Courts below have gone into factual controversy while rejecting the
plaint under Order VII, Rule 11, C.P.C. He further submits that both the Courts
below have assumed the jurisdiction which was not vested under them. He further
submits that the controversy involved in the suit cannot be decided summarily
without giving opportunity to the parties to prove their respective claims over
the suit land. Regarding locus standi to file the suit and Benami transaction
learned counsel for the applicants has pointed out that the
applicants/plaintiffs have claimed that they are legal heirs of deceased
Muhammad Hassan who was actual owner of the suit land and the Respondent No. 3
is only a Benamidar and this controversy cannot be decided without proper
evidence, regarding limitation in filing the suit, he submits that it has been
shown in the plaint that cause of action was accrued to the plaintiffs on
8-10-1991 within the period of limitation prescribed in Article 120 of the
Limitation Act. Regarding undervalued he submits that on this ground the plaint
cannot be rejected without first giving an opportunity to the applicants/plaintiffs
to correct the value of the Suit and to pay the requisite Court-fees. He
further submits that the Appellate Court has accepted that the suit was
properly valued and stamped, therefore, he will not make any further
submissions in this regard.
Learned counsel for the Respondent No. 3 Mr. Abdul Fattah
Malik, has submitted that both the judgments have been passed properly after
considering the pleadings of the parties. He further submits that admittedly
the Respondent No. 3 is a recorded owner of the land and at the time of death
of deceased Muhammad Hassan Soomro has not left any immovable property, which
can be inherited by the applicants/plaintiffs, regarding Benami transaction he
submits that deceased Muhammad Hassan Soomro during his life time had never
claimed this property as his property and therefore even if the
applicants/plaintiffs are his legal heirs they are not entitled to claim the
suit land. He further submits that the suit was admittedly time-barred as the
land was purchased sometimes in the year 1975 and the suit was filed in the
year 1991 beyond the period prescribed by law and the plaint was rightly
rejected. As far as the valuation of the suit is concerned he frankly conceded
that the plaint cannot be rejected unless opportunity is afforded to the
applicants/plaintiffs to correct the value and pay the Court-fees and further
states that since the learned Appellate Court has held that the suit was
properly valued he is not pressing this ground.
Learned Addl. A.-G. has submitted that this is a private
dispute between the applicants and the Respondent No. 3, the official
defendants have nothing to do with the dispute and they will abide by the
decision whatever is passed by this Court. He further submits that the
Respondent No. 2 under the law is authorized to effect the partition in respect
of the agricultural land and according to their record of right the Respondent
No. 3 is the owner of the suit land and such proceedings are pending before the
Respondent No. 2.
I have heard learned counsel for the parties and perused
the record made available before me.
No doubt the Court has the power to reject the plaint
without any application under Order VII, Rule 11, C.P.C. it is the duty of
every Court to examine the plaint and reject the plaint Suo Motu if the plaint
comes within the mischief of Order VII, Rule 11, C.P.C.
It is now well-settled law that while rejecting the
plaint under Order VII, Rule 11, C.P.C. the controversial question of facts
cannot be resolved and for that purpose the parties are entitled to lead
evidence in support of their respective claims. It is also well-settled law
that while rejecting the plaint under Order VII, Rule 11, C.P.C. the contents
of the plaint is to be taken as true on its face value. In the plaint the applicants/plaintiffs
have claimed that they are the legal heirs of the deceased Muhammad Hassan
Soomro who expired issueless and was actual owner of the suit land, this indeed
a factual controversy and cannot be decided summarily without allowing the
parties to lead their evidence. As far as the limitation is concerned it was
held in number of cases that the question of limitation is a mixed question of
law and facts and issue can be framed in this regard and rejection of the
plaint is unwarranted.
In this case the plaintiff has clearly pleaded that the
cause of action accrued to them on
In view of the above I am satisfied that both the learned
Courts below have assumed their jurisdiction which was not vested in them and
have wrongly rejected the plaint without giving opportunity to the parties to
prove their cases by way of leading the evidence.
In view of the above discussion the judgments passed by
the trial Court as well as Appellate Court are set aside and the case is
remanded to the trial Court for deciding it in accordance with law after
framing of the issues and after giving due opportunity to the parties to lead
their evidence in support of their cases.
Since the suit pertains to the year 1991 learned trial
Court is directed to proceed with the suit expeditiously without allowing
unnecessary adjournments to the parties and will conclude the trial within next
six months and report compliance to this Court through Additional Registrar.
(R.A.) Case remanded