1. ' SYED ZAHID HUSSAIN, J.---Rejection of plaint by the trial Court vide order, dated 13-7-2005 in the suit instituted by the appellant for specific performance, has been assailed through this appeal.
2. ' The suit for specific performance was instituted on 19-3-2004,on the basis of alleged agreement, dated 12-1-2004 qua the suit property. The same was contested by filing written statement. Later on, an application was moved by the respondent/defendant under Order VII, Rule 11 of the Code of Civil Procedure, 1908 for rejection of the plaint. The resultant order passed by the trial Court on 13-7- 2005 has given rise to this appeal.
3. ' The main thrust of the contentions of the learned counsel for the appellant is that the trial Court has proceeded illegally in non-suiting the appellant at such a stage without framing issues or affording opportunity of leading evidence in the matter. According to the learned counsel only the contents of the plaint were to be considered at this stage and no other material. It is contended that such a suit could be filed and tried by the Court even on the basis of oral agreement and rejection of the plaint under Order VII Rule 11 of the Code of Civil Procedure, 1908 was entirely a misconceived approach. Makes reference to Bashir Ahmed v. Muhammad Yousaf (deceased) represented by Muhammad Shafique (1993 PSC 83), Abdul Karim v. Safia Mirza and 5 others (1986 MLD 1333) and Mst. Miraj Bibi v. Additional District Judge and others (1991 CLC 1405).
4. ' On the other hand the learned counsel for the respondent contend that since the very basic document on the basis of which the suit was filed could not be produced/proved as evidence by virtue of Article 17(2) and Article 79 of the Qanun-e-Shahadat Order, 1984 it was nothing but .a fruitless litigation. It is contended that such a rejection of the plaint has indeed saved the Court from wasting its time. He has made reference to Mst. Rasheeda Begum and others v. Muhammad Yousaf and others (2002 SCMR 1089), Muhammad Yaqoob and others v. Naseer Hussain and others (PLD 1995 Lahore 395), Ghulam Yasin Butt and 2 others v. Manzoor Hussain and 3 others (2000 YLR 915), Iqbal Akbar and 3 others v. Province of Sindh and 3 others (2002 MLD 1835) and Shajar Ali Hod v. Esmail Sobhani (1985 CLC 342).
5. ' The respective contentions have been considered. As far as possible we would refrain from touching the merits of the matter and would endeavour to confine the controversy only to the extent as to whether the trial Court was justified in non-suiting the appellant by ordering the rejection of the plaint at this stage. It is settled law that in order to apply the provisions of Rule 11 of Order VII of the Code of Civil Procedure, 1908, the Court is obliged to keep in view the contents A 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 as held in Jewan and 7 others v. Federation of Pakistan through Secretary, Revenue, Islamabad and 2 others (1994 SCMR 826). It is also undeniable that even some oral agreement between the parties can be made basis for a suit for specific performance as held in Bashir Ahmed v. Muhammad Yousaf (deceased) represented by Muhammad Shafique (1993 SCMR 183) and Mrs. Mussarat Shaukat Ali v. Mrs. Safia Khatoon and others (1994 SCMR 2189). Such being the touchstone for a suit for specific performance and the applicability of Rule 11 of Order VII of the Code of Civil Procedure, 1908, the perusal of the contents of the plaint in the instant case would show that even the controversy as to existence, validity or otherwise of the agreement alleged to have been relied upon by the appellant, warranted trial of the matter by framing necessary issues and the summary dismissal of the suit was not called for, particularly when the written statement had already been filed in the case. Even the question of applicability and effect of Articles 17 and 79 of the Qanun-e-Shahadat Order, 1984 could not be judged at such initial stage without putting the matter to trial. The contention of the learned counsel for the respondent that the suit was frivolous which did not disclose any cause of action, will also be a matter to be adverted to by the trial Court, as such a plea has been taken in the written statement of the respondent and parties will get opportunity of leading evidence in the matter. The precedents cited by the learned counsel for the respondent including Mst. Rasheeda Begum and others (Supra) go to show that the issues were framed and the matter was decided after due trial, ' In view of the above, rejection of the plaint by the trial Court was not at all warranted. By accepting the appeal the matter is remitted to the trial Court for proceedings and trial of the suit in accordance with law. We leave the parties at this stage to bear their own costs but this aspect will be kept in view by the trial Court and issue of costs will also be decided ultimately along with other issues.