MUHAMMAD ALI MAZHAR, J.---This appeal is directed against the order dated 31-5-2010 passed by the learned Single Judge of this court on C.M.A. No,3142 of 2010 (wrongly typed in the order sheet as C.M.A No,4142/10) in Suit No,1131 of 2009 whereby the application filed by the appellants under Order VII, Rule 11, C.P.C. was dismissed.
(i)
1. The facts, which form the background of the case are that the respondents filed a suit for declaration, injunction, accounts, specific performance and damages against the appellants with the following prayers:- To declare that the plaintiffs are the true and rightful owners of 600,000 shares of Al-Imdad Travels (Pvt.) Ltd. namely, defendant No,2;
(ii) Mandatory injunction directing the defendant No,1 to transfer the 600,000 shares in the name of plaintiff Nos.l and 3 and issue Shares Certificates immediately in pursuance of the Agreements between the parties whereby the defendant No,1 also availed 150,000 Riyals from the plaintiffs through vide cheques all dated 12-12-2008 bearing. Nos.000010, 000045, 000203 and failed to transfer the shares;
(iii) Permanent injunction restraining the defendants, its servants, agents, and or employees from selling and or creating any third party interest in respect of the 600,00 shares of the defendant No,2;
(iv) Declare that 600,000 shares of Al-Imdad Travels Private Limited of the plaintiff cannot be sold, transferred, disposed, alienated or encumbered by the defendant No,1 directly or indirectly;
(v) Direct the defendants to render true and complete accounts in respect of all sales made by the Al-Imdad Travels (Pvt.) Limited together with a comprehensive statement of profits and further direct the defendants to pay/surrender all such profits to the plaintiff;
(vi) Grant Damages to the tune of Rs,10 million from defendants Nos.1 and 3 for mental torture agony suffered by the plaintiffs;
(vii) Pass interim and ad interim orders in the aforesaid terms;
(viii) Award costs of the suit;
(ix) Any other, better and or further relief that this honourable Court may deem fit to grant in the facts and circumstances of the case.
2. It is inter alia contended by the respondent in the aforesaid suit that the respondent No,1 is a director and shareholder of the appellant No,2 and the respondent No,2 is the father of respondent No,1. It was further stated that the appellant No,1 was shareholder and Director in the appellant No,2 company and was also Chief Executive Officer. The appellant No,2 is engaged in the business of Hajj and Umra Travel and Tour Operator. The appellant No,1 was working as an employee but subsequently he was terminated from the service. Thereafter, the appellant No,1 approached the respondent No,2 and stated that he was unemployed and further requested to establish a Hajj Service Agency. The respondent No,2 and appellant No,1 entered into an agreement on 7-5-2007, wherein it was agreed that the respondent No,2 will provide the total consideration to establish the said business and appellant No,1 will run the company using his expertise in the best interest of the company. After sometime, it revealed that the appellant No,1 in violation of the provision of Companies Ordinance, 1984 completely failed to provide the annual accounts, audit reports and dividends of the company to the respondents and even failed to invite the respondent to a single annual general meeting of the appellant No,2. The Accountant of the appellant No,2 fixed the value of total shares of the appellant No,2 at Rs,6.2 million, thereafter, appellant No,1 offered to sell his shares in respect of appellant No,2 to the respondent No,2, who accepted offer in total agreed sale consideration of Rs,31,00,000. Instead of transferring the shares to the respondent in accordance with the Companies Ordinance, 1984 and issuing shares certificate, the appellant No,1 played fraud with the respondents and executed general power of attorney in favour of the respondent No,2's son namely Shahzad Noor to receive profit from the company.
3. The appellant filed an application under Order VII Rule 11, C.P.C. in which it was stated that the respondent had no locus standi and no cause of action to file the suit in this courts In the supporting affidavit it was further stated that the respondent No,1 was the director of appellant No,2, who had resigned from the directorship and also received an agreed amount covering his total investment along with a large amount of profit. It was further alleged that Mr. Shahzad Noor ,had no authority to file the suit as both the Special Power of Attorneys attached with the plaint are forged and never executed by the respondents Nos.1 and 2 in his favour. The Power of Attorney is neither witnessed nor duly attested by the Consulate General of Pakistan in Saudi Arabia.
4. In response to the application, the respondent No,3 filed his counter-affidavit in which he had denied all allegations and it was further stated that the respondent No,1 never resigned from the directorship of the Company or received any amount along with profit. The resignation letter, transfer deed, and receipt of payment annexed as annexure "E" and "F" to the written statement are forged and fabricated documents with fictitious signatures of the respondent No,1. It is further submitted that the respondent are entitled to share holding in the company in accordance with the agreement dated 7-5-2007. So far as the power of attorney is concerned, it was categorically stated that the power of attorneys were executed while the respondents were present in Pakistan, therefore, there was no need of any attestation from Consulate General of Pakistan. The Power of Attorneys could only be challenged by the principal and not by the third party.
5. We have heard the learned counsel and perused the record. Learned counsel for the appellant argued that the learned Single Judge has wrongly dismissed the application moved under Order VII; Rule 11, C.P.C. and failed to appreciate that the respondent had no locus standi or any cause of action against the appellant, therefore, the plaint should have been rejected. He again asserted that the power of attorney on the basis of which the suit was filed, was a forged document, and the same was not attested by the Consulate General of Pakistan in Saudi Arabia.
6. In rebuttal, learned counsel for the respondents argued that for the purpose of rejection of plaint only contents of the plaint should be looked into and the respondents have clearly mentioned the entire factum of cause of action in the plaint and also attached numerous documents. Unless and until, the issues are settled in this matter, the controversy cannot be resolved between the parties.
He fully supported the order passed by the learned single Judge of this court, who dismissed the application and also directed the office to fix the matter for settlement of issues.
7. After hearing the pros and cons of the matter, we have reached to the conclusion that 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. 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. At this juncture, we would like to rely on a judgment "Ghulam Ali v. Asmatullah" reported in 1990 SCM R 1630, in which, 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 case of Jewan v. Federation of Pakistan, 1994 SCM R 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 from the plaint at that stage which is admitt by the plaintiff, the same can also be looked into and taken into consideration by Court while rejecting the plaint.
In the case reported in PLD 2008 Supreme court 650 (Saleem Malik v. Pakistan Cricket Board (PCB), it was held that the rejection of plaint on technical grounds would amount to deprive a person from his legitimate right of availing the legal remedy for undoing the wrong done in respect of his such rights, therefore, the Court may, in exceptional cases, consider the legal objection in the light of averments of the written statement but the pleading as a whole cannot be taken into consideration for rejection of plaint. Subject to the certain exception to the general principle, the plaint in the suit cannot be rejected on the basis of defence plea or material supplied by the opposite party with the written statement. This is settled law that in case of controversial questions of fact or law, the provision of Order VII, Rule 11, C.P.C., cannot be invoked rather the proper course for the court in such cases is to frame issues on such question and decide the same on merits in the light of evidence in accordance with law.
8. The whys and wherefores lead us to a conclusion that the learned single Judge has dismissed the application under Order VII, Rule 11, C.P.C. after appreciating the entire facts of the case and rightly held that the grounds raised in the application cannot be decided without adducing evidence, therefore, in our considered view, the learned single Judge rightly dismissed the application.
9. The Appeal was dismissed by our short order passed in court after hearing the learned counsel on 18-1-2011 and above are the reasons in support of our short order.