1. ' ARSHAD NOOR KHAN, J.--- By this second appeal, the appellant has questioned the propriety, legality and validity of the judgment, dated 17-10-2006 passed by the learned District Judge, Karachi-East in Civil Appeal No,179 of 2005 Akhtar Iqbal v. Muhammad Ibrahim Mughal, which has been allowed and the case has been remanded to the learned trial Court for fresh adjudication after recording the evidence of the parties.
2. ' The facts leading rise to the present appeal, in brief, are that the respondent filed suit for declaration, cancellation and permanent injunction against the appellant before the learned trial Court, stating therein that he is the real owner of House No,A-13, Block-13, Gulshane-Iqbal, Karachi, which is equipped with all the amenities viz. Sui gas, electricity, telephone, water etc. It is further stated in the plaint that the property tax in respect of the suit property was paid upto 2004-05. It is further stated in the plaint that the suit property comprises of ground plus two floors and the respondent is residing on the upper storey whereas the remaining portions have been rented out to the tenants. It is further stated in the plaint that the appellant had good friendship with him and entered into a verbal agreement in respect of the suit property for total sale consideration of Rs,2,300,000. At the time of verbal agreement the appellant had paid Rs,3,00,000 as token money and remaining balance of Rs,2,000,000 had to pay in two equal instalments amounting to Rs,1,000,000. The appellant paid first instalment in September, 2000 and the second instalment had to pay on or about 4th September, 2002, but the appellant did not pay the said balance of Rs,1,000,000. It is further stated in the plaint that as a good gesture and relationship in between them, the plaintiff, in good faith, without receipt of balance amount, executed sale-deed in his favour, which was registered on 27-9-2000. It is further stated in the plaint that in order to avoid future complications and eventualities in respect of the balance amount, the parties reduced another agreement into writing on 5-5-2001 whereby the appellant was required to pay the balance amounting to Rs,1,000,000 on or about 4th September, 2002. The appellant did not abide by the terms and conditions of the agreement, dated 5-5-2001 as such the respondent served notice on them and thereafter the relation in between them became strained which also led to the criminal litigation also. Finally, as the appellant did not pay the balance amount of Rs,1,000,000 to the respondent, therefore, the respondent filed suit before the learned trial Court, with the following prayer:--
(i) Declare that the plaintiff is the lawful owner of the suit property.
(ii) Declare that as the defendant failed to pay the balance amounting to Rs,10,00,000 (Rupees ten lac only) to the plaintiff as contemplated in mutual agreement, dated 5-5-2001, therefore, the paid amount in respect of the suit property has been forfeited and in consequences thereof the transaction between the plaintiff and the defendant has been ended.
(iii) Cancel the sale-deed, dated 31-9-2000 in pursuance of the mutual agreement as well as in the light of letter, dated 15-11-2004 and the legal notice, dated 8-3-2005.
(iv) Restrain the defendant, their agent, claimant, administrator assigns not to sale, alienate and transfer the suit property to the third person and not to transfer the immunities such as gas and electricity in his name and not to dispose the plaintiff from the suit property till the final disposal of the above matter.
(v) Award cost of the suit.
(vi) Any other relief or reliefs which this Honourable Court may be deemed fit and proper under the circumstances of the suit.
3. ' The appellant was served with the notice of the suit, who appeared and filed the written statement. In his written statement, the appellant admitted the averments contained in paras.6 to 10 of the plaint, as such the claim of the respondent more or less has been admitted by the appellant, however, it was alleged by the appellant that the agreement, dated 5-5-2001 was fake, fabricated and fallacious document, which was not executed by him and the same has been prepared by the respondent for wrongful gain. The appellant also filed application under Order VII, rule 11, C.P.C. For rejection of plaint on the ground that the plaint does not disclose the cause of action for filing of the suit. Plea raised by the appellant in his application under Order VII, rule 11, C.P.C., for rejection of the plaint, is usefully quoted hereinbelow, for the sake of convenience:-- "The plaint does not disclose cause of action for filing suit and the suit is without cause of action and same are contrary to the sale-deed so also the sale-deed has attained finality, cannot be cancelled at most if any, is the case of the plaintiff may be of recovery of Rs,10,00,000 but cannot be basis of cancellation of sale-deed."
4. ' The respondent refuted the contents of the application filed by the appellant and filed his counter-affidavit, inter alia, denying therein the allegations of non-existence of cause of action to him for filing the present suit. The learned lower Court after hearing of the learned counsel for the parties, was of the view that the sale-deed executed in between the parties was a registered document, which was registered on 27th September, 2000 and the present suit was filed after expiry of three years which is the limitation to seek the cancellation of documents as such plaint filed by the respondent was hit under the provision of Limitation Act as such the plaint was rejected.
5. ' Being highly aggrieved and dissatisfied with the order passed by the learned trial Court, the respondent preferred appeal before the learned District Judge, Karachi-East, who as stated above, allowed the same and remanded the case to the learned trial Court for adjudication of the same on merits after recording the evidence of the parties.
6. ' I have heard Mr. Chaudhry Rasheed Ahmed, Advocate for the appellant and Mr. Fasih-ul-Zaman, Abbasi, Advocate for the respondent.
7. ' Learned counsel for the appellant vehemently contended that the plaint filed by the respondent was hit under the provision of Limitation Act as the respondent seeks the cancellation of a registered documents which was registered on 27-9-2000 and the suit was belatedly filed in the year 2005 which was barred by limitation and the learned trial Court rightly rejected the plaint and the learned Appellate Court was not justified in reversing the findings recorded by the learned trial Court while remanding the matter. He further contended that the registered document could not be cancelled under the peculiar circumstances of the present case and at the most in case, if agreement, dated 5-5-2001 is given consideration, the suit for recovery of Rs,1,000,000 is appropriate lawful remedy available to the respondent and cancellation of registered document in any way could not be ordered by the learned lower Court, therefore, the order passed by the learned trial Court was lawful which has been illegally interfered by the learned Appellate Court as such the impugned order herein, may be set aside and the order passed by the learned trial Court may be restored.
8. ' The learned counsel for the respondent vehemently refuted the contention advanced by the learned counsel for the appellant and has contended that the admission of the appellant regarding execution of agreement, dated 5-5-2001 is glaring piece of evidence which cannot be brushed aside or ignored by the Court and it is yet to be established that under what circumstances the appellant agreed to execute the said agreement, dated 5-5-2001 in case, if there was no outstanding dues in between the parties at the time of registration of sale-deed, as such the learned Appellate Court after consideration of the averments contained in the plaint was justified in reversing the order passed by the learned trial Court and no illegality is apparent on the face of judgment passed by the learned appellate Court and the appeal merits no consideration and is liable to be dismissed.
9. ' I have considered the arguments advanced on behalf of the parties and have gone through the material available before me.
10. 'There can be no cavil to the proposition that for the purpose of rejection of the plaint the Court has to consider the averments contained in the plaint and if from the contents of averments made in the plaint, the plaint may be rejected, if it does not disclose the cause of action or where the relief claimed is under-valued and the plaintiff on being required by the Court to correct the valuation within time to be fixed by the Court, fails to do so or where the relief claimed is properly valued but the plaint has wrongly been typed on insufficient stamps, and the plaintiff on being required by the Court to supply the requisite stamp papers within the time to be fixed by the Court, fails to do so, and where the suit appears from the statement in the plaint to be barred by any law.
11. ' Applying the aforesaid principle for rejection of the plaint, I have gone through the averments contained in the plaint and found that in para.6, the respondent has stated that there were cordial relationship in between him and the appellant as such he entered into a verbal agreement for a total sale consideration of Rs,2,300,000 in the year 2000 and in para.7 of the plaint, it is stated that because of the verbal sale agreement Rs,3,00,000 as token money were paid to him by the appellant and remaining balance of Rs,2,000,000 were settled to be paid in two equal instalments of Rs,1,000,000 each. In para.8 of the plaint, it is stated that the appellant paid first instalment of Rs,1,000,000 in the month of September, 2000 and in para.9 of the plaint he has been well-worded that because of good relationship and family terms he executed sale agreement, dated 27-9-2000 which was registered without receipt of balance of Rs,1,000,000 and in para.10 of the plaint, it is stated that to avoid future complications and eventualities agreement, dated 5-5-2001 was also reduced in writing in between them. The said averments contained in the plaint have been admitted by the appellant in his written statement and has simply alleged that the agreement, dated 5-5-2001 was forged document. The averments contained in the plaint coupled with the admission of the appellant show that more or less, contention of the respondent has been admitted by the appellant as such the averments contained in the plaint, in my humble opinion, disclose sufficient cause of action against the appellant to file suit.
12. 'The prayer made by the appellant in his application under Order VII, rule 11, C.P.C. Referred to above, shows that nowhere the appellant sought the rejection of the plaint on the ground of plaint being barred by any law of limitation. The appellant has simply sought the rejection of the plaint on the ground that the plaint does not disclose any cause of action for filing the suit and at the most case of recovery of Rs,1,000,000 may be filed by the respondent. The learned trial Court rejected the plaint on the ground that the respondent filed suit for cancellation of the sale-deed after a span of three years whereas it could have been filed within three years for the purpose of cancellation of sale-deed. The said findings of the learned trial Court were contrary to the application filed by the appellant as such the respondent was also taken to surprise by the learned trial Court while non- suiting him on the ground of limitation as such the respondent was not heard by the learned trial Court on the point of limitation, basing on which the plaint was rejected.
13. ' Even the existence or non-existence of cause of action to the plaintiff or the plaint being barred by limitation, are mixed question of law and facts, which requires evidence to be led by the either parties and after appraisal of the said evidence on this aspect of the matter, a proper finding could be recorded by the learned trial Court. Admittedly in the present suit, the respondent has prayed for declaration to the effect that he is a lawful owner of the suit property and further declaration to the effect that the appellant is duty bound to pay the balance amounting to Rs,1,000,000 to him as contained in the mutual agreement, dated 5-5-2001. Both these prayers demands recording of evidence and also show that the suit was not based on simple prayer of cancellation of sale-deed executed in between them. The learned lower Appellate Court has rightly observed that the evidence is necessarily to be recorded by the learned trial Court in pro and contra to their respective claims and by non-recording the evidence, substantial justice could not be done.. A similar point also came for consideration before the Honourable High Court of Sindh in the case of Elis D'Silva v. Salahuddin reported in 1984 CLC 1120 and the Honourable High Court was pleased to observe that the plaint as a whole could not be rejected if the multifarious cause of actions have been shown in the plaint. The dictum laid down in the case of Elis D'Silve (supra), is applicable to the circumstances of the present case as the present suit is also based on multifarious cause of action.
14. ' The learned counsel for the appellant, in my humble opinion, has failed to point out any illegality on the face of judgment passed by the learned Appellate Court thereby setting aside the order passed by the learned trial Court and remanded the matter with the direction to record the evidence of the parties and if necessary, issues to that effect may be framed and I do not find any illegality in the judgment passed by the learned Appellate Court.
15. ' For the foregoing reasons, I do not find any substance in the present appeal, which is hereby dismissed summarily, without any order as to cost, along with the listed application.