IN SEARCH OF `CAUSE OF ACTION’
By:
JAVAID AKHTER
Assistant Professor of Law,
University law College,
University of the
Introduction
One of the mandatory requirements for a suit to
succeed is that it must directly or by necessary intendment indicate cause of action
which provides to a claimant or a plaintiff the right to sue. The word cause of
action has not been defined in the entire Code of Civil Procedure but the
phrase find place in Order II Rule 2 and Order VII Rule 11. It has been held
that "The phrase 'cause of action' has not been defined in any enactment,
but meaning of it has been judicially considered in various decisions. In Read vs. Brown (1867) 11 M.I.A. 551 at
P.605, Lord Esher, M.R; accepted the definition given
in Cook vs. Gill Law Rep. 8CP.107,
that it meant 'every fact which it would be necessary for the plaintiff to
prove, if traversed, in order to support his right to the judgment of the
Court. It does not comprise every piece of evidence which is necessary to prove
each fact, but every fact which is necessary to be proved'. Fry, L.J. agreed
and said, 'Everything which if not proved, gives the defendant an immediate
right to judgment, must be part of cause of action'. Lopes, L.J. said, `I agree
with the definition given by the Master of Rolls of a cause of action, and that
it includes every fact which it would be necessary to prove, if traversed, in order to enable a
plaintiff to maintain his action'. This decision has been followed in
The plaint
and the Plaint Alone
For finding whether the plaint has or has not
disclosed a cause of action, the Courts earlier strictly followed the rule that
only the plaints needs to be looked into. This rule was actually termed as an
"Axiomatic Principle of Law' by the Karachi High Court where it was held
that "it is an axiomatic principle of law that while considering the
question of cause of action, the Court should apply its mind to the facts given
in the plaint, and not to any other matter, and it was to presume that every allegation
made in the plaint was true"[3].
This principle was religiously applied for instance by a Division Bench of the
Lahore High Court where his Lordship Mr. Justice Gul Zarin Kiani while speaking for
the Court held that "to enable a Court to reject a plaint on the ground
that it does not disclose a cause of action under Order VII Rule 11 C.P.C. it
should travel within the four corners of the plaint and nothing else. Neither
the defence set up nor the documents annexed thereto
could legitimately be looked into. For failing to disclose cause of action,
plaint can be rejected only if the allegations given in the plaint even if
taken to be true modo et
forma in the manner and form, the plaintiff is not entitled to any relief
whatsoever.[4] It is
well settled that a Court is empowered to grant such relief as the justice of
case may demand and for purposes of determining the relief asked for, the whole
of the plaint must be looked into, so that the substance rather than the form
should be examined. [5] In
another case decided by his Lordship Rana Baghwan Das it was held that "a Court cannot lawfully
take into consideration the defence pleas raised on
behalf of the defendants".[6]
"Power of rejection of plaint is an exceptional power to be exercised by
Courts with extreme caution because such powers are an exception to general
rule that all cases are to be decided on merits, after recording of evidence
and not on technical grounds. It is precisely for this reason that the law
permits consideration of only averments made in plaint for the purpose of
deciding whether the plaint should be rejected or not for failure to disclose
cause of action or the suit being barred under some provisions of law. So much
so, that the Court cannot even consider pleas raised by defendant in the suit
for his defence".[7]
The rule regarding confining to the plaint itself while considering an
application for rejection of plaint has been followed and is being still
followed despite view to the contrary which is also being applied by placing
certain reservations. The traditional view has lately been followed by the
Supreme Court of Pakistan where it has been held that "except contents of
the plaint reference to no other document has to be made and further reply to
the application Under Order VII & Rule 11, C.P.C, cannot be considered as
part of the plaint".[8]
Based on this rule it has been held "that while considering the
application of provisions of Rule 11 of Order VII C.P.C. the Court has to
simply examine the statement made in the plaint".[9] To
emphasize this point it has further been held that "Order VII Rule 11
C.P.C can be attracted only when a plaint by itself does not disclose any cause
of action. It cannot be rejected on the basis of written statement because the
initial burden remains on the plaintiff/petitioner to prove his case on the
basis of assertions made in the pleadings. If the principle in hand adopted by
the Courts below is endorsed, it would be easiest thing to dismiss any civil
suit simply and merely on the basis of
written statement".[10]
"A plain reading of clause (a) of Rule 11 of Order VII spells out the
intention of the Legislature as the word 'it' is highly significant for the
purpose of deciding the fate of a plaint with reference to its rejection. By
using the word 'it' the Legislature has particularized the plaint only and this
particularization excludes every thing. In other
words the word 'it' confines the scope of reference only to the plaint and
nothing else. In order to invoke the applicability of this clause the Court
shall look into the contents of the plaint only and shall examine the plaint on
its face value".[11]
Undisputed
and Admitted Documents Filed With the Plaint or Written Statement
Later on the Courts extended the rule to include
besides averments in the plaint, the undisputed/admitted documents,
annexed/filed with the plaint or written statement for determining whether the
plaint discloses any cause of action. For instance it was held that "The
documents filed along with the plaint and referred therein can be looked into for
the purpose of rejection of plaint. Such documents, indeed, are a part of the
plaint".[12] A plain
reading of the Order VII, Rule 11 C.P.C. would show that the rejection of
plaint under this provision 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 permits consideration of only averments made in the plaint for the
purpose of deciding whether the 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 defense, as at that stage the pleas raised by the defendants are only
contentious 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".[13]
"It is settled law that in order to apply the provisions of Order VII Rule
11 C.P.C. the Court is obliged to keep in view the contents of the plaint only
and other undisputed or admitted material. The plea of the defendant when it is
disputed and denied by the plaintiff cannot be made a ground for rejection of
the plaint".[14]
"The traditional view has been that for the purpose of rejecting a plaint
under Order VII, Rule 11 C.P.C. only the contents of the plaint have to be
looked into. However, it has lately been modified to the extent that even an
undisputed document placed on record can also be looked into for the aforesaid
purpose".[15] the
Court may also take into account certain admitted or uncontroverted material
placed on the record by the defendant, the genuineness and the veracity of
which is beyond doubt and by looking whereupon, the Court comes to the
conclusion that to continue with the suit shall be a futile exercise and/or the
case has been filed by the plaintiff with manifest dishonesty of purpose,
oblique object, to retain or claim the benefit of such gain which the plaintiff
is not entitled to, and to simply cause prejudice and harassment to the
defendant of the case.[16]
An important aspect regarding consideration of
documents for the purposes of rejection of plaint has been that the Courts have
sometimes specifically used the words 'undisputed' or 'admitted' before the
word 'documents' but sometimes these prefixes before the word 'document have
not been used. The proceeding cases will indicate this trend. It has been held
that "Averments made in the plaint, other material available on record
which on its own strength is legally sufficient to completely refute the claim
of the plaintiff, can also be looked into for the purpose of rejection of the
plaint. It does not necessarily mean that the other material shall be taken as
conclusive proof of the facts stated therein, but it actually moderates that
other material on its own intrinsic value be considered along with the
averments made in the plaint. [17]
"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".[18]
"The rule that Court should take in view averments made in the plaint
alone and not the defence set up by defendant is not
universal but subject to certain exceptions; one of which is that if it comes
to the notice of Court even from the documents filed by defendant that dispute
in question, has already been adjudicated upon by a superior Court, and filing
of suit is nothing but abuse of process of law, plaint must be rejected".[19]
Contents of
the Written Statement and Affidavits
Another
development took place when it was decided in one of the case by Karachi High
Court that "the contents of the written statement/affidavits may be looked
into when considering application under Order VII Rule 11 C.P.C. [20]
This has been followed by Lahore High Court where it has been held that 'Whilst
scrutinizing the plaint in a suit the Court may also consider the admitted
documents on record and even the pleadings of the other side".[21]
However this view has not been subscribed to by the Peshawar High Court where
in a case, his Lordship Mr. Justice Sardar Muhammad Raza categorically held that "Contents of written
statement cannot be relied upon while forming opinion regarding rejection of
plaint".[22] Even
the Supreme Court of Pakistan has not subscribed to this view in one of the
important cases often cited in connection with Order VII Rule 11 C.P.C. The
Supreme Court of Pakistan held that "Though the observation was made by
the Court (Supreme Court) in cases Muhammad
Akhtar vs. Abdul Hadi
1981 SCMR 878 and Nazeer Ahmad Vs Ghulam Mehdi 1988 SCMR 824 that Order VII, Rule 11, C.P.C. is
not exhaustive of all situations but it did not lay down the law that the Court
while rejecting the plaint under Order VII, Rule 11, C.P.C. could take into
consideration the plea of defendant though disputed and denied by the
plaintiff.[23] This
view has further been adopted by the Supreme Court by holding that "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 his defence
as at this stage the pleas are only contentions which are not based on the
evidence.[24]
Documents Annexed with the Application Under Order
VII Rule 11 C.P.C.
The
Lahore High Court has gone further in respect of reliance upon documents in
case of application under Order VII Rule 11 C.P.C. for rejection of plaint and
has included documents annexed with the
application under Order VII Rule 11 C.P.C. It has been held that
"where facts of previous suit and its decision by competent Court of
jurisdiction have been concealed by the plaintiff in the plaint of his suit,
then the material produced in evidence and documents by way of filing written
statement or along with the application under Order VII Rule 11 C.P.C. should
also be kept in mind for rejecting the plaint".[25]
Whatever
Stated in a Plaint must be Presumed to be Correct
An
important aspect in respect of application under Order VII, Rule 11 C.P.C has
been the consistent view of the Courts that while rejecting plaint, the Court
is to presume that whatever has been stated in the plaint is correct. This can
be evident from judgments by various Courts of
Distinction
between Non-Disclosure and Non-Availability of Cause of Action
In
the case Muhammad Farooq
vs. Province of Punjab and others (PLD 1993 Lahore 56) their Lordships
observed that there is a distinction in non-disclosure of cause of action in
the plaint and non-availability of cause of action, under Order VII Rule 11
C.P.C. only for non-disclosure of cause of action in the plaint the Court can
summarily reject the suit. Since cause of action was not only available to
plaintiff but it was rightly disclosed in the plaint. The Trial Court thus was
not justified to summarily reject plaint under Order VII Rule 11 C.P.C. [27]
under Order VII, rule 11, plaint could be rejected, if it does not disclose
cause of action, but it cannot be rejected on the ground of accrual of cause of
action, as the later requires evidence to prove and after recording of
evidence, if the plaintiff fails to prove cause of action accrued to him then,
the suit has to be dismissed. [28] However
in a case pertaining to defamation it has been held that For the wrongful act
of defamation to be committed it is necessary that the communication of the
defamatory material be made to "at least one person other than the person
defamed" (Section 2(e) of the Ordinance). The particulars of such
recipient of communication are necessary to allege that the plaintiff was
defamed or ridiculed thereby. The plaint lacks any particulars of
"communication". Since the wrong of defamation is incomplete without
communication, therefore, the non-mention of its particulars in a plaint leaves
the cause of action to remain unstated, as in the present case. Consequently,
the plaint in the suit has been rejected rightfully for nondisclosure of cause
of action.[29]
Conclusion
From
finding the cause of action from the plaint and plaint alone or extending the
rule to the undisputed documents attached with the plaint or a written
statement and further finding the cause of action from the contents of the
written statement (even though not fully subscribed to by some Courts) the law
of finding cause of action has developed in Pakistan showing a progressive
approach and the boldness of the Courts to meet the changing realities of time.
[1] Muhammad
Khalil Khan vs. Mahboob Ali
Mian: PLD 1948 PC 131
[2] Abdul
Rehman vs. Sher Zaman: 2004 CLC 1340 (SC AJ&K); Khurshid
Ahmad vs. Sultan Habib: 2005 CLC 492 (SC AJ&K);
Abdul Ghafoor & Brothers vs. National Food and
Beverage (Pvt.) Ltd: 2001 YLR 3243 (SC AJ&K);Businet
International (Pvt.) Ltd. Vs. Aramex International
(Pvt.) Ltd: 2001 CLC 104 (Kar); M. Khurram Muggo vs. Perveen Hameed Muggo: PLD 2007 Lah 518
(DB);Pfizer Limited vs. Wilson's Pharmaceuticals:2002 CLD 1653 (Kar)
[3] Seven
Stars Goods Transport Co.(Regd.) Karachi vs. Administrator, Karachi Municipal
Corporation Karachi: PLD 1976 Kar 21; Mst Hameeda Hakim Saleem Ahmad vs. Government of Sind and others: 1982 CLC
269 (Kar) Begum vs. Haji
Abdul Ghani and anther; 1994 CLC 1882 (Lah); Mst. Bano
alias Gul Bano and others
Versus Begum Dilshad Alam
and others: 2011 C L C 88( Karachi)
[4] Mushtaq Ahmad Khan vs. Mercantile Cooperative Finance
Corporation Ltd. and another: PLD 1989
[5]
[6] Naya Daur Motor (Pvt.) Ltd. Vs.
Pakistan Banking Council: PLD 1997 Karachi 208 (his Lordship while asserting
that a Court cannot lawfully take into consideration the defence
pleas raised on behalf of the defendants however in the same judgment took a
different view and further held that "Apart from the averments made in the
plaint, a Court is entitled to take into consideration the facts which are
admitted by the plaintiff and the documents admitted by him. Now apart from
averments in plaint the facts admitted can be none other than the facts stated
in the defense pleas as oral statements by the plaintiff have no value unless
deposed on oath at the time of evidence).
[7]
[8] Mian Asif Aslam
vs. Mian Muhammad Asif and
others: PLD 2001 SC 499
[9] Muhammad
Tariq Mahmood Vs Anjuman
Kashmiri Bradari Khisht Faroshan: 2003 CLC 335 (
[10] Mrs.
Anis Haider vs. S. Amir Haider:
2008 SCMR 236 at P.240
[11] Muhammad
Zaman vs. Shah Wazir Khan
PLD 2002
[12] Civil
Aviation Authority Vs. Data International: PLD 1993
[13] Jewan vs. Federation of
[14] Sajid Saeed vs. Inam ul Haq:
2007 MLD 1622(FB)
[15] Arif Majeed Malik
vs. Board of Governors
[16] M.
Khurram Muggo Vs. Mst. Perveen Hameed
Muggo and others P L D 2007 Lahore 518 (DB)
[17] S.M.
Shafi Ahmad Zaidi vs. Malik Hassan Ali Khan: 2002 SCMR 338 at P.342;
[18] Muhammad
Saleem ullah vs. Additional
District Judge Gujranwala: PLD 2005 SC 511
[19] Abdul
Latif vs. Manzoor Ahmad:
1993 MLD 177 (Lah)
[20] Ume
Aiman vs. Muhammad Yousaf:
2002 CLC 1620(Kar); (See however Jewan
vs. Federation of Pakistan: 1994 SCMR 826 and earlier view of Karachi High
Court in Hakim Saleem Ahmad vs. Government of Sind
and others: 1982 CLC 269 (Kar) where his Lordship
Justice Saeeduzaman Siddiqui
rejected the rule of rejecting the plaint on the basis of pleas raised by
defendant. See also Muhammad Shabbir Vs. Faraha Bibi and Others 2010 C L C
1603 (Karachi) where Aiman case has been
distinguished by the Court by holding that the facts and circumstances of that
case were distinguishable on the ground that the rejection was claimed on the
basis of res judicata)
[21] Farooq Ahmad SH. Vs. Privatization Commission: 2006 CLD l(Lah) (This view does not conform to the view earlier given
by his Lordship Mr. Justice Ch. Ijaz Ahmad in the
case Muhammad Ashraf vs. Muhammad Latif:
2005 YLR 756(Lah)
[22] Ghulam Abbas vs. Abid Hussain Shah: 1994 MLD 2345
(Pesh)
[23] Jewan vs. Federation of
[24] Muhammad
Saleem Ullah vs. Additional
District Judge and others: PLD 2005 SC 511.
[25] Ghulam Hassan vs. Munawar Hussain: 2005 CLC 773(Lah).
[26] Kanwar Qutubuddin Khan vs.
Karachi Development Authority: 2002 CLC 634 (Kar); Haji Allah Bakhsh vs. Abdul Rehman 1995 SCMR 459 at P.461; Mst
Sharifan Begum vs. Muhammad Shahbaz
2000 CLC 63 (Lah); Pakistan steel Mills Corporation (Pvt) Ltd. Vs. Muhammad Ashique:
1995 CLC 1000 (Kar); Muhammad Saleem
Ullah vs. Additional District Judge and others: PLD
2005 SC 51 l;Hakim Saleem
Ahmad vs. Government of Sind and others: 1982 CLC 269 (Kar)
[27] Majeedullah vs. Sher Ali: 1999
MLD 961(Pesh)
[28] Zahid Hussain Vs. Mst. Noor Jehan
and others P L D 2010
[29] Akhtar Ali vs. Muhammad Shoaib
Ahmad 2011 C L D 1 (DB) Lah