1. ' SAJJAD ALI SHAH, J.---Through this application the defendants/applicants seeks rejection of plaint on the ground that the suit is without cause.
2. ' Mr. Haroon Ishaq Jangda, learned counsel for the defendant has contended that the plaintiff on 3rd March 2005 has booked a Flat in the project of the defendant in terms of agreement, filed with the written statement, and as per terms of the agreement. The construction was to be completed within three years added by further extension of one year which was to expire on 1st April 2008- 2009 and therefore, filing ofsuit on 9tn June, 2006 seeking specific performance is pre-mature without cause and therefore the plaint is liable to be rejected. It is further contended by the learned counsel that the suit is also barred under section 21(g) of the Specific Relief Act as the contract which is to be enforced, contains performance of a continuous duty over longer period than three years, therefore, not enforceable. It was next contended that the suit further is barred under Article 114 of the Qanune-Shahadat, as after entering into an Agreement, the plaintiff is estopped from questioning its validity. It was lastly contended that since no detail of the damages as claimed has been provided in the plaint, therefore, the suit is barred under rule 4 of Order VI, C.P.C. In support of his contention, that while deciding an application under order VII, rule 11, C.P.C. All material available on record can be considered and further that the dispute between the parties is to be decided on the basis of cause of action, which has accrued at the time when action was initiated. Learned counsel has placed reliance on the judgments of the Hon'ble Supreme Court in the cases of S. M.
3. Shafi Ahmed Zaidi v. Malik Hasan All Khan (Moin) 2002 SCM R 338 and Mehar Ali v. Noor Muhammad and others 2007 SCM R 1965.
4. ' On the other hand Mr. Ishrat Alvi, learned counsel for the plaintiff has contended that no doubt the plaintiff had booked suit flat on 3rd March, 2005 and the payments were to be made within three years in accordance with the payment schedule, placed on record at page 27, per learned counsel the dispute between the parties arose firstly on 9th May 2006 when the payment made by the plaintiff was not acknowledged on the printed receipts of the defendant No,1 as evidence from notice at page 47, which led to exchange of notices between the parties and ultimately the defendants vide notice dated 1-6-2006 raised a demand for payment of Rs,2,35,000 within ten days which per learned counsel was neither due nor payable and on non-payment threatened cancellation of the flat, therefore, the plaintiff was left with no option but to file the instant suit inter alia seeking declaration that the noti,e dated 1st June, 2006, issued by the defendant threatening cancellation, of declared as void and illegal.
5. ' In response, Mr. Haroon Ishaq Jangda contended that the demand for payment of Rs,2,35,000 was strictly in consonance with the Agreement/schedule of payment therefore, the plaintiff is estopped from challenging the same.
6. ' I have heard the learned counsel for the respective parties and have perused the record .
7. ' The record reflects that dispute between the parties started when the plaintiff, after visiting the site, showed his dissatisfaction on the speed of construction and vide notice dated 8th May 2006, shown his apprehension that if the work is carried out on such speed the construction will not be completed and the plaintiff would claim Rs,30,000 per month for non-delivery of timely possession.
8. Thereafter another notice was issued by the plaintiff for issuance of receipts on letter-head. Notices were replied by the defendant and ultimately the defendant vide their letter dated 1st June, 2006 demanded Rs,2,35,000 i,e, Rs,1,25,000 for allocation and Rs,1,10,000 confirmation within ten days from the receipt of notice failing booking in respect of the said flat was threatened to be cancelled and thereafter refused to accept the monthly instalment, which notice coupled with refusal to accept monthly instalment resulted in filing of the instant suit on 9th June 2006, inter alia, seeking cancellation of notice dated 1st June, 2006 and direction to defendants to accept monthly instalment.
9. ' In view of the above background the contentions of the learned counsel for the defendant that suit being premature does not make any sense as the cause of action for filing the instant suit was notice dated 1st June 2006, whereby defendant had threatened cancellation followed by refusal to accept monthly instalment as alleged in para. 14 of the Plaint. It may be that some of the reliefs sought are premature but the question would be as to whether a plaint can be rejected only on the ground that some of the reliefs contained therein are premature or in other words a Plaint can be rejected in parts.
10. ' It is by now well settled principle of law that existence or absence of a cause of action is to be discovered from the recital of plaint or the documents on which such plaint is based and where a cause of action is disclosed in the plaint, plaintiff has a right to have a fair trial notwithstanding the defence taken in the written statement. Likewise a plaint can only be rejected where all the relief claimed by the plaintiff were barred by any law, however. Where some of the reliefs claimed are barred the plaint cannot be rejected as a plaint can only be rejected as a whole and not in piecemeal.
11. ' As to the contention of the learned counsel pleading bar of suit under section 21(g), suffice it to observe that it is not the case of defendant that they would not complete the construction within three years, on the contrary, they have asserted timely construction of the project even otherwise the defendant had voluntarily and on their own had started raising construction and had offered complete flats not only to the plaintiff but to the public at large, even otherwise, raising of such plea by the defendants entitles the plaintiff to the damages and not remedyless. Likewise pleading rejection of plaint on account of noncompliance of rule 4 of Order VI, suffice it to observe that noncompliance of rule 4 of Order VI does not envisage the rejection of plaint on the contrary rule 5 provides remedy by directing parties to furnish further and better particulars. Taking up the contention of B Mr. Haroon Ishaq Jangda that since the plaintiff under Article 114 is estopped from questioning the agreed schedule of payment therefore the plaint be rejected being barred. The contention is totally without any substance as the plaintiff has not called in question the schedule of payment but has claimed that the payment demanded is not in accordance with the schedule of payment.
12. ' In the circumstances the application is rejected with cost of Rs,25,000 to be deposited with the Nazir of this Court within 15 days, the amount so deposited with the consent of Mr. Ishrat Alvi be paid in Prime Minister Relief Fund for displaced persons of Swat.
2. Adjourned to a date in office.
13. Application rejected.