1. ' MUHAMMAD ALI MAZHAR, J.---The defendants Nos.1 and 2 have brought this application under Order VII, rule 11, C.P.C. For rejection of plaint on the following grounds:--
(1) That the suit is not maintainable and liable to be rejected as filed by the plaintiff on the false and fake grounds which does not show any solid reasons.
(2) That the plaintiff has not come with clean hands before the honourable Court.
(3) That the suit is barred by sections 28 and 56 Specific Relief Act and section 17 of Court Fees Act.
(4) That the plaintiff has no power to file the said suit for specific performance of contract, permanent injunction as he is not a vendee of the sale agreement dated 22-2-2006 and the above suit is liable to be rejected with costs under Order VII, rule 11, C . P. C .
2. ' In support of the application, the defendant No,2 has filed his affidavit and stated that the instant suit has been filed against the defendants just to misguide this court and the plaintiff has no right to file the suit as the subject sale agreement dated 22-2-2006 has been executed between Farah Bibi defendant No,1 and one Muhammad Tayyab, thus the plaintiff has no concern with this agreement. Further more the said agreement has been cancelled and the amount paid by Muhammad Tayyab has been adjusted as part payment in respect of agricultural land. The plaintiff had failed to make balance sale consideration of the above sale agreement within one month hence the amount was forfeited. In sale agreement dated 18-5-2006, it was decided between both the parties that the agreement dated 22-2-2006 stands cancelled and there is no further dues against the vendor. Since the above agreement had already been cancelled the plaintiff has no right to file the suit for specific performance of contract.
3. ' The plaintiff has filed objections to the application and relied upon the contents of the plaint and stated that the case is one of specific performance, permanent injunction and possession against the receipt of consideration by the defendants. The introductory description of the plaintiff as incorporated in paragraph 2 of the plaint clearly transpires that the plaintiff is nominee of the person entered into an agreement of sale dated 22-2-2006. The receipts of payment of Rs,15,50,000 and Rs,2,25,000 annexures H-1 & H-2 to the plaint were duly executed by the defendant No,1 and witnessed by the very same person who had entered into the initial agreement on behalf of plaintiff.
4. ' I have heard the learned counsel for the parties and perused the material available on record as well as gone through the case-law relied upon by the learned counsel represented the parties. The learned counsel for the defendants Nos.1 and 2 argued that the suit is barred under sections 48 and 56 of the Specific Relief Act and section 17 of Court Fees Act. The learned counsel argued that the plaintiff has no authority to institute the suit but at the same time he laid much emphasis that the agreement dated 26-2-2006 was cancelled in lieu of agreement dated 18-5-2006, which was entered into between the defendant No,1 and the plaintiff himself and the amount which was paid by Muhammad Tayyab, had been adjusted as part payment in respect of agricultural land measuring 40 acres at Deh Okar and 40 acres at Deh Robar in District Gwadar, Tehsil Jiwani for a total sale consideration of Rs,1,60,00,000. In order to prove the contention, the learned counsel also invited the attention of this Court to annexure P/1 attached to the supporting affidavit of the application moved under Order VII, Rule 11, C.P.C. So far as the legal provisions are concerned, section 48 of the Specific Relief Act has no applicability in the present proceedings and so far as section 56 in concerned, it can only be considered keeping in view the contents of the plaint and unless the entire contents of the plaint are not thrashed out, no positive finding can be given whether section 56 is applicable in the facts and circumstances of the case or not. In'addition to above, learned counsel further relied upon section 17 of the Court Fees Act, which relates to the multifarious suits and according to him the plaintiff has claimed specific performance of two different properties, therefore, separate Court Fees should have been paid or affixed on the plaint.
5. Learned counsel further argued that by execution of subsequent agreement between defendant No,1 and the plaintiff, the earlier agreement was superseded and in fact it is the case of novation of contract. The learned counsel in support of the arguments relied upon the following judgments:--
(1) Ume Aiman and others v. Muhammad Yousuf and others 2002 CLC 1629. This judgment has been relied upon in the context that while deciding the application under Order VII, rule 11, C.P.C., this court may also look into the contents of the Written Statement/affidavits, in appropriate cases.
6. In the present case, the application was filed on the ground that the matter involved in the present controversy has already been resolved earlier between the same parties, therefore the suit was hit by principle of res juducata. The learned Single Judge of this Court has observed that ingredients of section 11, C.P.C. Are not attracted to the fats of the matter as the parties have never litigated in any adverse capacity previously other than in RA No,52 of 1974 for the first time in October, 1984 which in any event did not result in any final adjudication of their rights and obligations. In this case, the application was dismissed, however the learned Single Judge has observed that there is no cavil to the settled law that in appropriate cases, even the contents of Written Statement/affidavits may be looked into while considering application under Order VII, rule 11, C.P.C.
(2) Muhammad Sharif v. Mst. Faji and others 1996 CLC 883. In this judgment, the learned Single Judge of Lahore High Court has observed that terms of agreement clearly stated that on failure, of plaintiff to perform his part of contract, earnest amount paid by him would stand forfeited. First Appellate Court had rightly found that time was essence of contract and plaintiff had failed to perform his part of contract. Judgment and decree rendered by First Appellate Court was affirmed while that of trial Court decreeing plaintiff's suit was set aside in circumstances.
(3) Mst Khatoon Begum v. Barkatunnisa Begum PLD 1987 Kar.
132. This judgment relates to section 62 of the Contract Act which provides that substitution of a new contract is the core of novation. Its essential feature is that a rights under the original contract is extinguished and new rights referable to new contract are created. The substituted contract therefore, must be a valid and enforceable contract to be effective as novation. If the new agreement or contract suffers from legal flaw such as want of registration, stamps etc., on account of which it becomes unenforceable, the original contract will not be extinguished and the rights and liabilities of the parties will be determined on that basis.
7. ' In response to the arguments advanced by the learned counsel for the defendants No,1 and 2, the learned counsel for the plaintiff argued that the plaintiff has perfectly disclosed the cause of action in the plaint in sequence and from a bare look of the contents of the plaint, it is manifestly clear that the plaintiff has a cause of action against the defendants and for the purposes of the decision under Order VII, rule 11, C.P.C., it is well-settled' and old age golden principle that only the contents of the plaint may be looked into without any extraneous consideration and even the court may not see the Written Statement/affidavits etc. Filed by the defendants. The learned counsel further argued that the plaintiff has without any concealment or suppression clearly disclosed that he was the nominee of Muhammad Tayyab, who signed agreement with the defendant No,1 for the land situated at Deh Gujro, KDA Scheme No,33 and residential House No,R-23 measuring 120 sq. Yds.
8. Situated at Pioneer Fountain, KDA Scheme No,33, Karachi. He admits that though initial agreement was signed between Mrs. Farah Bibi and Mr. Muhammad Tayyab, but the same vendor issued two receipts in the sum of Rs,5,5,000 and Rs,2,25,000 respectively for the subject properties and besides two receipts, the learned counsel also invited the attention of the Court to the copies of two pay orders containing the same amount which were issued to the defendant No,1 from the account of the plaintiff. Copies of receipts and pay orders are attached with the plaint. The learned counsel argued that the plaintiff is the nominee of Muhammad Tayyab but subsequently he has paid the substantial amount to the defendant No,1 directly which was fully acknowledged and receipts were issued for the same properties, hence it is proved that the plaintiff has vested right to file the suit even on the strength of the receipts any pay orders attached with the plaint which are not disputed documents. Whether the plaintiff has a right to file the suit or not, this question can only be resolved after adducing evidence by the parties even the defendant No,1 herself filed copy of agreement which was allegedly signed between the plaintiff and defendant No,1, whereby the earlier agreement dated 22-2-2006 was cancelled and the defendant No,1 also pleaded the novation of contract. All these complicated questions can only be resolved after recording evidence in the matter therefore, the application under Order VII, rule 11, C.P.C. Is not maintainable and is liable to be dismissed. In support of his arguments, the learned counsel for the plaintiff relied upon a judgment reported in Raja Muhammad Younis Khan v. Bagga Khan and others 2003 YLR 2797 in which, it has been held that the Court has to confine itself only to the averments made in the plaint and has to take the contents thereof to be true and cannot go beyond the same. If, however, on taking the averments made in the plaint the Court finds the plaint to be barred by law, the Court can reject the plaint but cannot do so by resolving the contested facts. The plaint can only be rejected where its perusal shows that the relief claimed by the plaintiff was barred under any provision of law or a suit on the basis of it was incompetent.
9. ' Keeping in view the pros and cons of the matter, in all conscience I am of the view that the execution of two receipts and receipt of pay orders by the defendant No,1 from the plaintiff gives him a cause of action of filing the present suit. The defendant No,1 has also attached a copy of agreement executed between the defendant No,1 and the plaintiff which shows some sort of novation between the parties, therefore at this stage no positive finding can be given that the suit is barred by law. In order to sift grain from the chaff, it is necessary that parties should lead evidence in support of their pleadings and unless the evidence is record, Court cannot reach to the proper conclusion. The honourable Supreme Court in its judgment reported in Haji Mitha Khan v.
10. Muhammad Younus and others 1991 SCMR 2030 has held that the test of cause of action is that if what plaintiff has stated is taken to be correct, is he entitled to relief or not. In another judgment reported in Mrs. Anis Haider and others v. S. Amir Haider and others 2008 SCMR 236, the honourable Supreme Court has held that pleadings of parties could not be taken as evidence particularly when its maker was not even examined in its support and cross-examined by his opponent. Order VII, rule 11, C.P.C. Can be attracted only when a planit 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 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 the easiest thing to dismiss any civil suit simply and merely on the basis of written statement. In another judgment reported in Haji Allah Bakhsh v. Abdul Rehman and others 1995 SCMR 459, the honourable Supreme Court has held that in order to press into service the provisions of Order VII, rule 11, C.P.C., the averments contained in the plaint are to be presumed to be correct. On the above assumption, the plaint is to be examined and if the case falls under any of the clauses (a), (b), (c) and (d) of rule 11, C.P.C., the plaint is liable to be rejected. According to one more judgment reported in Abdul Rahman v. Wahid Bakhsh PLD 1977 Lah. 1243, the word "cause of action" means bundle of facts which if traversed, a suitor claiming relief is required to prove for obtaining judgment. Nevertheless, it does not mean that even if one such fact, a constituent of cause of action is in existence, the claim can succeed. The totality of the facts must co-exist and if anything is wanting the claim would be incompetent. A part is included in the whole but the whole can never be equal to the part. It is also well understood that not only the party seeking relief should have a cause of action when the transaction or the alleged act is done but also at the time of the institution of the claim. For example, there may be a case where at the time when an action is brought, there is no right to seek the remedy though the remedy was available when the right was infringed. A suitor is required to show that not only a right has been infringed in a manner to entitle him to a relief but also that when he approached the Court the right to seek the relief was in existence. Similarly the Privy Council in another case had summed up that cause of action means every fact which will be necessary for the plaintiff to prove if traverse in order to support his right to judgment. It has no relation to the defence that may be set up nor does it depend upon the character of the relief prayed. In another judgment reported in Ghulam Ali v. Asmatullah 1990 SCMR 1630, the honourable Supreme Court has held that assertion made in the plaint had to be seen for the purposes of determining whether plaint disclosed any cause of action. Lack of proof or weakness of proof in circumstances of the case did not furnish any justification for coming to conclusion that there was no cause of action shown in the plaint. In another judgment reported in Jewan v. Federation of Pakistan 1994 SCMR 826, the honourable Supreme Court has held that while taking action for rejection of plaint under Order VII, rule 11, C.P.C., the Court cannot take into consideration pleas raised by the defendants in the suit in his defence as at that stage the pleas raised by the defendants are only contentions in the proceedings unsupported by any evidence on record. However, if there is some other material before the Court apart form 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.
11. ' In my view the contents of the plaint are showing plausible B cause of action against the defendants. The case law relied upon by the learned counsel for the defendants No,1 and 2 are distinguishable in the facts and circumstances of this case. One judgment related to Order VII, rule 11, C.P.C. In which the learned Single Judge of this Court has observed that while deciding the application, the contents of the Written Statement may be looked into but the facts and circumstances of that case were distinguishable on the ground that the rejection was claimed on the basis of res judicata. The learned Single Judge of this Court had dismissed the application under Order VII, rule 11, C.P.C. On the ground that the contents of the planit were not showing any res judicata between the parties. The next judgment relates to the novation of contract. Whether novation took place or not, again it is a matter of evidence and the plaintiff has claimed the specific performance as nominee of Muhammad Tayyab and created his right on the basis of two receipts issued by the defendant No,1 in his name and in order to show C his bona fide, he has also attached copies of two pay orders and the receipts showing cause of action against the present defendants for the purposes of specific performance of the contract. Where a cause of action is disclosed, the question as to whether the plaintiff will be able to prove it is irrelevant and at the preliminary stage it is not permissible to D base the decision on the data provided by the opposite party. Whether the plaintiff has any legal character or locus standi to file the suit, whether he has any privity of contract or whether he is bound by the alleged novation of contract or the earlier agreement was superseded/cancelled, all these bare bones of the matter require factual investigation and cannot be proved unless appropriate issues are framed and parties are given ample opportunity to lead evidence. So far as section 17 of the Court Fees Act is concerned, it is also not applicable in the present situation. Provisions of section 17 applies to the suits which embrace two or more distinct cause of action. When a suit is filed combining multifarious causes of action then each claim on the basis of causes of action is to be valued separately and requisite fee is to be paid on it. In fact the applicability of section 17 is confined to the different reliefs claimed in the plaint for the purpose of ad valorem court fee in vogue prior to the fixation of maximum limit of court-fee for the plaint. The honourable Supreme court has already considered section 17 of the Court Fees Act in its judgment reported in Aslam Industries Ltd. v. Pakistan Edible Corporation of Pakistan and others 1993 SCMR 683 and held that section 17 of the Court Fees Act merely lays down a rule whereby aggregate amount of fee leviable on the plaint or memorandum of appeal in suits embracing separate subjects will have to be paid, but does not itself fix the amount of Court Fees.
12. Rather, it refers to other parts of the Act for the amount leviable i,e, to the Schedules, which deal with the subject. Section 17 is subject to the rules as to the amount of the fee, which is stated in the Schedule. Thus, the Court Fee payable on a plaint in respect of a multifarious suit covered by section 17 where the Court Fee is not otherwise provided for by the Act, would be Article 1 of Schedule 1. If this Article is applicable, it is to be applied according to its exact tenor. A maximum ceiling of Court Fee is provided on the documents listed in this Article, which includes a plaint. This would therefore apply irrespective of the consideration whether section 17 is applicable to the case.
13. The ceiling overrides the rule contained in section 17. Even otherwise, a taxing statute must be construed in the light of what is clearly expressed and if the legislature wants to fix a maximum ceiling beyond which it does not want to recover Court Fees, true recognition must be given to that intent.
14. ' The plaint shows that the plaintiff has sought the specific performance on the basis of agreement dated 22-2-2006 in which both the properties are jointly mentioned and maximum court fee has been affixed on the plaint against the valuation of Suit so in my view apart from the detailed judgment of the honourable Supreme Court clarifying the applicability, scope, nature and true intent of section 17 of the Court Fees Act, this section is even otherwise not applicable in the peculiar circumstances of the case, therefore the objection of the learned counsel for the defendants No,1 and 2 that the plaint is also hit by section 17 of the Court Fees Act is not sustainable.
15. ' The whys and wherefores lead me to a conclusion that the defendants Nos.1 and 2 have failed to convince the Court by any cogent or plausible justification warranting the rejection of plaint. The application under. Order VII, rule 11, C.P.C. Is dismissed. The parties are directed to file their proposed issues so that the matter may be decided on merits.