MIAN SAQIB NISAR, J. ~ The plaint of the petitioners in their suit for the specific enforcement of an agreement to sell regarding immovable property has been rejected by the Learned Single Judge of the Sindh High Court (the Trial Court) vide order dated 4.11.2008, holding the suit to be barred by law i.e. Limitation. The appeal against the above order filed by the petitioners before a Division Bench of the High Court has also failed on 3.11.2009. Hence this petition.
2. For the purposes of resolving the propositions involved in the matter, the relevant facts of the case in brief are, that admittedly the petitioners (the vendee) and the respondent-company (the vendor) entered into an agreement to sell dated Nil November, 1996 at Karachi with regard to the sale of the suit property situated in Islamabad, for a total consideration of Rs. 13,59,00,000/- out of which a sum of Rs. 50,00,000/- had been paid by the petitioners and for the remaining they were obliged to pay to the respondent according to the schedule of payment given in the agreement.
After the discharge of certain reciprocal obligations by the parties, as envisaged by the agreement, 31.12.1997 was the 'date fixed' therein for the completion and finalization of the sale transaction, but this could not be so accomplished. The petitioners, therefore, on 7.1.2003 instituted the suit for specific performance against the respondent, complaining and alleging in the plaint, that the transaction could not be concluded within the stipulated period due to the failure and/or the inabilities of the respondent to perform its part of the agreement; in this regard, it is stated that soon after the execution of the agreement, the respondent through its Chief Executive informed the petitioners that serious differences have emerged between its constituents/directors etc. And the respondent, therefore, expressed its inability to proceed further in the matter for the steps that were required to be taken by the respondent, as the seller and the petitioners as the purchasers in furtherance of the agreement, it is thus alleged that a request was made by the respondent to the petitioners to stop the payment of the cheque dated 2.12.1996 amounting to Rs. 50,00,000/- (Rupees fifty lac) payable by them under the agreement, so as to avoid the risk of freezing of that amount upon the encashment thereof, in consequence of the winding up of the respondent- company or any other order being passed by the Court in the pending litigation, It is averred in the plaint that the respondent thus sought time to settle the differences between themselves (directors/shareholders etc.) and further requested for the deferment of the performance of the part of petitioners' obligations under the agreement till the differences were resolved/settled. The particulars of the litigation in which the respondent purportedly got entangled are mentioned in the plaint, It is also the case of the petitioners that the respondent was apprehensive about the encroachment upon the suit property and, thus, sought the petitioners' help to secure it, which was ensured by the petitioners by incurring huge amounts in the manner of constructing the guard rooms at the suit property, and also by deploying the guards, whose salaries/charges were paid by the petitioners. The plaint also find mention that certain further payments were made by the petitioners on account of the respondent, which amount was/is adjustable towards the sale price, thus for the afore-going some meetings were held between the parties, last in this regard being on 12.12.2002, in which certain fresh decisions about their obligations in relation to the agreement to sell and the liability of the petitioners to pay the consideration were taken, It is in the above scenario, a case was set out in the plaint, that the time was not the essence of the agreement; the sale could not be concluded within the stipulated period due to failure and/or inabilities of the respondent to perform its obligations under the agreement; the petitioners were prevented to discharge their obligation about the payments of the consideration as per the schedule under the agreement on the specific request of the respondent and in view of the litigation and difference within the respondent-company, otherwise the petitioners were ready and willing to perform their part of the contract, It may be pertinent to mention here that nowhere in the plaint it is specified that the date fixed in the agreement for the performance of the agreement was changed/altered by the parties by any subsequent/further express agreement between them. Rather from the contents of paragraph No. 18 of the plaint which pertains to the accrual of cause of action it is clear that the petitioners for the purposes of limitation of the suit were resorting to second part, instead of first part of Article 113 of the Limitation Act, 1908 (The Act).
The respondent by filing its written statement controverted the averments of the plaint, and denied the allegations levelled about its failure or inabilities to perform its part of the agreement, rather specifically asserted that the petitioners defaulted in the payment of the sale consideration in terms of the agreement. The meetings between the parties and the alleged decisions taken therein were refuted; it was specifically and unequivocally asserted that due to the failure on part of the respondent to pay the consideration in terms of the agreement, the same under intimation was duly cancelled by the respondent on 19.2.1998. It was categorically stated that 31.12.1997 was the date fixed in the agreement for the performance thereof, thus the suit flied beyond the period of three years from that date was hopelessly barred by time. Be that as it may, beside, filing the written statement, the respondent also moved a separate application under Order 7, Rule 11, C.P.C, seeking the rejection of the plaint on account of the bar of limitation, It is on this application that the impugned order dated 4.11,2008 was passed by the learned Single Judge, which has been upheld in appeal.
3. Mr. Abdul Hafiz Pirzada, learned counsel for the petitioners has argued, that the proposition of limitation in view of the facts stated in the plaint, which were controverted in the written statement by the respondent, was a mixed question of law and fact, therefore, such question could not be resolved without enabling the petitioners to produce evidence to prove that there was no default on the part of the petitioners to fulfill their obligations in terms of the agreement, rather the respondent was a delinquent party in this regard. While rejecting the plaint, the averments made therein should be taken to be correct, and if still the suit appears to be barred by law only then the plaint could be rejected, in the instant case, from the facts mentioned in the plaint, which should be presumed to be correct, it is clear that in terms of the agreement to sell, after having received certain amounts (parts) of consideration, the respondent was obliged to deliver the possession to the petitioners coupled with the execution of a power-of-attorney in favour of one of the petitioners authorizing him to have the layout and building plans approved/amended, to obtain permission for the advertisement and premise-wise sale of the premises proposed to be constructed and commence work on the suit property, besides the agreement envisaged that the respondent has an approved building plan, which turned out to be invalid, moreover the requisite permission/NOC from the concerned authorities for the transfer of the suit property to the petitioners was not procured by the respondent. These were pivotal obligations of the respondent which were a condition precedent for the payment of the whole or any part of the consideration, but the respondent miserably failed in this regard, therefore without prejudice to the fact, that the respondent itself stopped the petitioners to pay the amounts, they (petitioners) on account of the above circumstance were also not obliged to make the payment/s. In view of the expression "on or before" (emphasis supplied) mentioned in the agreement the date,/'.e. 31.12.1997 was not a 'date fixed' for the performance of the agreement within the object and meaning of Article 113 of the Act, therefore, the instant case shall be covered by the second part of the Article, which prescribes the starting point of limitation, when the plaintiff has notice that the performance is refused, the suit as per the facts stated in the plaint, was accordingly filed well within time, It is also argued that the petitioners have always been ready and willing to perform their part of the agreement and it is the respondent who has failed to discharge its obligations, as has been highlighted in the plaint, therefore, this case has to be adjudged in the context of the conduct of the parties and the principles of waiver etc.; the time was not the essence of the contract, in this regard, besides relying upon the general rule particular reference has been made to a stipulation in the agreement, that in case the consideration is not paid by the petitioners strictly in accord thereto, they, shall be liable to pay mark-up as liquidated damages, In support of his various contentions, the learned ASC has placed reliance on the judgments reported as Mst. Mehmooda Begum v. Syed Hassan Sajjad and 2 others (PLD 2010 SC 952), Muhammad Taj v. Arshad Mehmood and 3 others (2009 SC MR 114), Fatima Moeen v. Additional District Judge, Sheikhupura and 22 others (1992 SCMR 1199), Lai Khan through Legal Heirs v. Muhammad Yousaf through Legal Heirs (PLD 2011 SC 657), Muhammad Tufail and 3 others v. Ghulam Fahd and 4 others (2000 SCMR 1037) and Inam Naqshband v. Haji Shaikh Ijaz Ahmad (PLD 1995 SC 314).
4. Mr. Khalid Anwar, learned counsel for the respondent, has conversely argued that the instant case is squarely covered by first part of Article 113 of the Act, which is mandatory provision of law and provides a period of three years to file a suit for specific performance from the 'date fixed' between the parties for the conclusion of the transaction. As the date is clearly specified/fixed in the agreement to sell, therefore, the suit admittedly filed beyond three years therefrom was/is barred by law i.e. Limitation, and the plaint has been rightly rejected by the Courts, It is also stated that the bald allegations made in the plaint with an abortive attempt to seek the extension/enlargement in time when the case is covered by first part of Article 113 ibid has no relevance and it is the agreement which has to be taken into account for the purpose of computation of time, except when the time would extend, excluded or enlarged under any provisions of the Act, but this is not the case set out by the petitioners in their plaint, in this regard reliance has been placed on the provision of Order 7, Rule 6, C.P.C. Learned counsel further argued, that the time being an essence of the contract or otherwise, has no relevance as far as the limitation for a suit for the specific performance, particularly the one covered by first part of Article 113 of the Act, is concerned, It is also submitted that the plaint could be rejected in terms of Order 7, Rule 11, C.P.C, when it appears from the statement in the plaint to be barred by time, the plaint should be read with reference to the documents which the plaintiff has filed along therewith. The other submissions made by the counsel for the petitioners have also been controverted by Mr. Khalid Anwar.
5. Heard, In view of the afore-mentioned facts and the submissions of the learned counsel for the parties, the important/relevant proposition/s which, inter alia, emerge for the resolution by this Court is/are, the scope of Article 113 of the Act and Order 7, Rule 11, C.P.C.; the applicability of these two provisions to the facts and circumstances of the present case.
In the context of interpreting Article 113 of the Act, the provisions for the facility of reference are reproduced below:- #tbe #tbs Description of suit Period of limitation Time from which period begins to run 1 2 ^ 3
113. For specific performance of a contract. Three years The date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused.
And For the purpose of he above, it seems expedient to #tbe And For the purpose of he above, it seems expedient to touch upon the legislative history of the Article. The prior Limitation Acts of 1871 and 1877, had in each of them the corresponding provision as in Article 113. However, the words in 1871 Act, were "when the plaintiff has notice that his right is denied", postulating that the second part of Article 113 was the only provision then regulating the limitation for the suits for specific performance and the commencement of three years period was dependent on the proof of the fact of notice of denial and the question of limitation was accordingly to be decided, having no nexus With the date even if fixed by the parties for the performance of the contract. The said provision however was expanded and these words were substituted in the subsequent Act of 1877, as are also found in the third column of the present Act.
The change brought by the legislature in 1877 Act was retained in Article 113 of the Act, by including the first ,part that the time would run from the 'date fixed' for the performance is thus purposive and salutary in nature, which contemplates and reflects the clear intention of the legislature to prescribe the same (three years) period of limitation, however, providing that the parties who otherwise have a right to fix a date of their own choice in the agreement for the performance thereof, such date in consequence of law shall also govern the period of limitation as well for the suits falling in this category. Thus now the three years period mentioned in column No. 3 of the Article runs in two parts:-
(i) from the date fixed for the performance; or
(ii) where no such date is fixed when the plaintiff has notice that performance is refused.
The reason for the said change as stated above is obvious. In the first part, the date is certain, it is fixed by the parties, being conscious and aware of the mandate of law i.e. Article 113, with the intention that the time for the specific performance suit should run therefrom. And so the time shall run forthwith from that date, irrespective and notwithstanding there being a default, lapse or inability on part of either party to the contract to perform his/its obligation in relation thereto. The object and rationale of enforcing the first part is to exclude and eliminate the element of resolving the factual controversy which may arise in a case pertaining to the proof or otherwise of the notice of denial and the time thereof, In the second part, the date is not certain and so the date of refusal of the performance is the only basis for computation of time. These two parts of Article 113 are altogether independent and segregated in nature and are meant to cater two different sorts of specific performance claims, in relation to the limitation attracted to those. A case squarely falling within the ambit of the first part cannot be adjudged or considered on the touchstone of the second part, notwithstanding any set of facts mentioned in the plaint to bring the case within the purview of the later part, In other words, as has been held in the judgments reported as Siraj Din, etc. v. Mst. Khurshid Begum, etc. (PLJ 2008 SC 145) and Ghulam Nabi and others v. Seth Muhammad Yaqub and others (PLD 1983 SC 344) - "when the case falls within first clause the second clause is not to be resorted to". However, the exemption, the exclusion and the enlargement from/of the period of limitation in the cases of first part is permissible, but it is restricted only if there is a change in the date fixed by the parties or such date is dispensed with by them, but through an express agreement; by resuming to the novation of the agreement or through an acknowledgment within the purview of Section 19 of the Act. And/or if the exemption etc. Is provided and available under any other provision of The Act however, to claim such an exemption etc. Grounds have to be clearly set out in the plaint in terms of Order 7, Rule 6, C.P.C. We have examined the present case on the criteria laid down above, and find that according to the admitted agreement between the parties, 31,12.1997 was/is the 'date fixed' between them for the performance of the agreement, which has not been shown or even averred in the plaint to have been changed or dispensed with by the parties vide any subsequent express agreement, In this behalf, it may be pertinent to mention here that during the course of hearing Mr. Abdul Hafiz Pirzada, on a Court query, has stated that there is no agreement in writing between the parties which would extend/dispense the date fixed and that he also is not pressing into service the rule of novation of the contract. We have also noticed that the petitioners have neither alleged any acknowledgment in terms of Article 19 of the Act, which should necessarily be in writing, and made within the original period of limitation nor any such acknowledgment has been pleaded in the plaint or placed on the record. Besides, no case for the exemption etc. Has been set-forth in the plaint and the requisite grounds are conspicuously missing in this behalf as is mandated by Order 7, Rule 6, C.P.C.
6. Mr. Abdul Hafiz Pirzada, learned Sr. ASC has, however, urged that 31.12.1997 was not the 'date fixed1 in the agreement as is envisaged by Article 113. In this context, it has been argued that the use of the words on or before1 (emphasis supplied) enabled the parties to have the completion/finalization of the sale prior to 31.12.1997, therefore it takes the said date out of the realm of the 'date fixed' as is spirited by Article 113. We do not find ourselves persuaded to agree with this plea, as in our view 31.12.1997 is a definite date with reference to calendar, there is do ambiguity or absurdity in this behalf it is the cut-off date and connotes the ultimate, the absolute, the final and the 'date' terminal intended and meant by the parties for the completion of the transaction. Only due to the use of the word 'before' as a disjunctive to the said date, affording the parties with an opportunity to have the deal done before the given date would not mean that the date fixed shall lose its legal efficacy and the consequences as are envisaged by the Article. The case reported as Inam Naqshband v. Haji Shaikh Ijaz Ahmad (PLD 1995 SC 314) on which reliance has been placed by the learned counsel to argue that the period of one week mentioned in the agreement of that case was not construed a date fixed, suffice it to say that the ratio of the dictum is inapplicable to this case for the reason that no calendar date was fixed in the agreement supra case, but the position herein is absolutely otherwise, 31.12.1997 has been clearly and unequivocally mentioned in the agreement to sell. Besides the said judgment was considered by this Court in akin circumstances thereto, and a different view was propounded in the judgment reported as Muhammad 'Ramzan v.
Muhammad Qasim (2011 SCMR 249). From the above discussion, the scope of Article 113 of the Act having been elucidated, we find that the present case was/is not covered by second part of the said Article, rather the first part thereof, is squarely and exclusively attracted and the limitation period shall commence forthwith from the date fixed by the parties, notwithstanding the alleged failure, inabilities of the respondent to perform its part of the obligations, the alleged interaction between the parties, their conduct, which all shall have no relevance in the context of the limitation of those suits covered by first part of the Article.
7. Before proceeding further in the matter and being still on the subject of limitation (Article 113 ibid), we would also like to dilate upon another submission of the learned counsel for the petitioners, that in view of the general principle and on account of the peculiar circumstances of this case the time was not the essence of the contract, therefore, the period of limitation shall be covered as per paragraph No. 18 of the plaint attracting second part of the Article, In this regard, in our candid view the noted rule has nothing to do with the proposition of limitation of the specific performance causes. The said rule is not an enunciation of any statutory instrument, but has emerged as the principle of equity for the exercise of discretion by the Courts in specific performance cases, It only touches on the right to enforce the contract and hah relevance and nexus in respect of the judicial consideration, whether the agreement/contract should be enforced or not by the Court in the set of facts of a given case, by resorting to the said rule and nothing more. Whereas, the limitation is a command of law, prescribing the statutory period within which the right has to be exercised and enforced. The Courts thus shall have no lawful authority to ignore the date/period stipulated in the contract, which as a legal consequence is meant to regulate the period of limitation in terms of first part of Article 113 ibid, and on the touchstone of the equitable, discretionary principle, and to hold against the vivid and clear provisions of law, by extending, enlarging or exempting the said period in violation thereof.
8. At this stage it would be appropriate to carry out an analysis of Order 7, Rule 11 of the Code of Civil Procedure, 1908. The said provision is reproduced below:- "11. Rejection of plaint.- The plaint shall be rejected in the following cases:-
(a) Where it does not disclose a cause of action.
(b) Where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;
(c) Where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;
(d) Where the suit appears from the statement in the plaint to be barred by any law.
This is an important provision of law which has often been construed in a wide ranging series of cases. The interpretation applied thereto falls within a wide spectrum and some of the important case-law will be examined by us at a later stage. Prior to doing so, however, it is important to carry out an analysis of the precise language used in the statute. The salient features contained in the provision are the following:-
(i) The words used are "rejection of plaint", In other words the legislature has deliberately refrained from providing that the suit should be "dismissed". A distinction has thus been drawn between a dismissal of a suit and the rejection of a plaint and it is this distinction which needs to be elucidated.
(ii) The opening words indicate that it is mandatory on the Court to reject the plaint if one or more of the four clauses is found to be applicable. This is made clear by the use of the word "shall" in the opening phase.
(iii) The first clause need not detain us for long since it contains a clear statement that in case the plaint does not disclose a cause of action it is to be rejected. The next two clauses, namely, clauses
(b) and (c) relate to the valuation of the plaint and the stamp duty to be affixed thereon and again do not require much discussion, It is the last clause, namely (d) in relation to which most of the litigation has taken place, It is this, therefore, which requires a careful analysis.
(iv) Clause (d) has three constituent elements. The first part uses the important word "appears", the second part relates to statements made in the plaint, {i.e. There is no reference to the written statement) and the third part states the inference to be drawn if a suit "appears" from the statement in the "plaint" to be "barred" by any law. This read in conjunction with the opening words of Rule 11 make it mandatory on the Court to reject the plaint.
Right at the inception it needs to be stated clearly that Order 7, Rule 11, C.P.C, cannot be properly construed in isolation. In order to understand the theory of law underlying it reference has to be made to its complementary provision, namely, Order 7, Rule 13, C.P.C, which is reproduced below:- "13. Where rejection of plaint does not preclude presentation of fresh plant.- The rejection of the plaint on any of the grounds hereinabove mentioned shall not of its own force preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action."
Rule 13 states the consequence of the rejection of the plaint. It is, in brief, to keep the right of the plaintiff alive to present a fresh plaint even if based on "the same cause of action" notwithstanding the rejection of the plaint. This is a distinctly unusual provision, It will be seen immediately that this marks a clear distinction from the provisions of Section 11, C.P.C, which not merely imposes a legal bar on an unsuccessful plaintiff but actually takes away the jurisdiction of the Court to try any suit or issue in which the matter directly or. Substantially in issue has also been in issue in a former suit between the same parties litigating under the same title in a Court of competent jurisdiction which has been "heard and finally decided". This is of course the well-known principle of res judicata which is one of the foundational principles of our procedural law. It follows that in Order 7, Rule 11, read with Rule 13 the concept of rejection of a plaint is clearly distinct from that of a suit which is decided and disposed of in the normal course by a Court of competent jurisdiction after recording evidence. The question which therefore arises is, what is the reason for this distinction and why has it been created? What has to be determined is, firstly the exact scope and ambit of Order 7, Rule 11, and secondly, the effect of an order passed rejecting the plaint in accordance therewith.
9. We have already noticed that the Court is bound by the use of the mandatory word "shall" to reject a plaint if it "appears" from the statements in the plaint to be barred by any law. What is the significance of the word "appears"? It may be noted that the legislative draftsman has gone out of his way not to use the more common phraseology. For example, in the normal course, one would have expected that the language used would have been "where it is established from the statements in the plaint that the suit is barred by any law" or, alternatively, "where it is proved from the statement in the plaint that the suit is barred by any law" Neither of these alternatives was selected by the legislative draftsman and it must be assumed that this was a deliberate and conscious decision. An important' inference can therefore be drawn from the fact that the word used is "appears". This word, of course, imports a certain degree of uncertainty and judicial discretion in contra-distinction to the more precise words "proved" or "established", In other words the legislative intent seems to have been that if prima facie the Court considered that it "appears" from the statements in the plaint that the suit was barred then it should be terminated forthwith.
The great advantage of this would be two-fold:-
(a) On the one hand the defendant would be saved from the harassment of being subjected to a prolonged and costly trial including the leading of evidence which could be extended over a considerable period of time. Secondly, a great deal of valuable Court time would also be saved from being wasted. This second consideration is of special importance considering the extent to which the Courts are at present clogged with an enormous amount of arrears. Thus the idea, in brief, would be to bury the suit at its inception. This therefore, appears to be the rationale for the use of word "appears" as against the more strong words "established" or "proved". A further reason why the latter words hav6 not been used is, of course, that normally they would be used if evidence had been recorded. That would then be a definitive finding by the Court based on evidence and after examination of the law in the light thereof.
(b) At the same time we have to consider the matter from the other point of view as well, It is important that injustice should not be caused to a plaintiff merely because, for example, of defective drafting in the plaint. No irretrievable loss should be caused to a plaintiff in the event of a plaint being rejected merely on the basis that it "appears" to be barred, It is for this reason that the legal status of rejection of a plaint has not been equated to that of a judgment and decree given after the recording of evidence, In the latter case Section 11 and the principle of res judicata become applicable whereas in the present case that principle has been expressly excluded by the provisions of Order 7, Rule 13. It needs to be emphasized that the language of Rule 13 is explicit in clarifying that a fresh plaint can be filed in respect of the very same cause of action in relation to which the plaint was earlier rejected. This interpretation reconciles the language of Rule 11 and Rule 13 with that of Section 11 of the Q.P.C. By providing valid rationale for the differentiation. A further pointer in the same direction is to be found if the definition of decree contained in Section 2, C.P.C, is taken into account, In common practice the words judgment and decree are often used more or less synonymously. However, these two concepts are completely distinct in terms of clauses (2) and (9) of Section 2, C.P.C. Clause 9 defines a "judgment" as meaning merely the grounds given b> a Judge for arriving at the conclusion embodied a decree. This is clear from the language which is reproduced below:- "Sec. 2(9)"Judgment" means the statement given by the Judge of the grounds of a decree or order."
10. In contrast the definition of a "necree" as per clause (2) is the "formal expression of adjudication", In other words the judgment contains the reasoning whereas the decree is the formal and operative part whirs' lows from the judgment. This is the reason that it is a decree which is executable and similarly an appeal also lies as against a decree. Clause (2) insofar as relevant is also reproduced below and it will be observed that the definition of a decree has been extended by a deeming provision to include a rejection of the plaint:- "2. "decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final, It shall be deemed to include the rejection of a plaint............ "
The language of clause (2) is thus completely consonant with the above analysis. The concept of a decree was clearly excluded, by the language used in Order 7, Rule 11, C.P.C, which merely contemplated the rejection of a plaint but it was extended in the definition of a decree obviously in order to remedy the procedural lacuna which would otherwise ensue because once a suit is disposed of even by the rejection of a plaint it is necessary that there should be a formal order to this effect i.e. a decree and this is the reason that the definition of decree, was extended to encompass it.
11. We now need to examine the grounds on the basis of which a plaint is to be rejected. There is a considerable amount of case-law on the point. This covers a wide spectrum with, on the one hand, emphasis being placed on the primacy of the statements in the plaint to the exclusion of everything else and, on the other hand, to include a perusal not merely of the plaint but also the documents attached therewith and, stretching the point even further, the other clear and obvious material on the record. The following are some of the important judgments on the point:-
(i) In the case of Jewan and seven others v. Federation of Pakistan (1994 SCMR 826), it was held that the law permits consideration only of the contents of the plaint and the defence raised in the written statement is to be disregarded. However, it was also observed that in addition to the plaint if there is some other material also available before the Court which is admitted by the plaintiff the same can also be looked at. It was further observed that the Court would not be entitled to examine any other material unless it was brought on record in accordance with the rules of evidence.
(ii) In the case of Haji Allah Bukhsh v. Abdul Rehman and others (1995 SCMR 459) it was observed that the averments contained in the plaint are presumed to be correct.
(iii) In the case of Anees Haider and others v. S. Amir Haider and others (2008 SCMR 236) the Court reiterated the principle that no reliance could be placed on the written statement.
(iv) The case of Salee Malik v. Pakistan Cricket Board (PLD 2008 SC 650) is a little difficult to reconcile with the overwhelming weight of authority since that observation in this case was "that the Court, may, in exceptional circumstances, consider the legal objection in the light of averment of the written statement but the pleading as a whole cannot be taken into consideration for rejection of plaint under Order 7, Rule 11, C.P.C.", It is a little difficult to construe what the above observation means and perhaps the dictum contained herein should be confined and limited to the facts of this case alone.
(v) In the case of Siddique Khan and two others v. Abdul Shakoor Khan and another (PLD 1984 SC 289) it was observed that Order 7, Rule 11 in a way is a penal provision to be strictly construed.
However, this finding pertains to clause (c) of Order 7, Rule 11 alone which provides that a plaint is to be rejected only after the grant of the requisite time if the plaintiff has failed to pay the Court-fee.
This case is thus not relevant or material for our purposes.
(vi) In the case, of Muhammad Saleemullah and others v. Additional District Judge, Gujranwala (PLD 2006 SC 511) it was observed that Order 7, Rule 11 contemplates the rejection of a plaint only on the basis of averments made in the plaint and the pleas raised in the written statement are not to be considered, It was also observed that the Court was entitled to rely on the documents annexed to the plaint.
(vii) In the case of S.M. Shaft Ahmed Zaidi v. Malik Hassan AH Khan (2002 SCMR 338) the following finding was rendered:- "Besides, averments made in the plaint other material available on record which on its own strength is legally sufficient to completely refute the claim of the plaintiff, can also be looked into for the purpose of rejection of plaint, It does not necessarily mean that the other material shall be taken as conclusive proof of the (acts stated therein, but it actually moderates that other material on its own int-misc value be considered along with it -ferments made in the plaint." It was fruthor observed that "it is the reqirement of law that incompetent suit shall be buried at its inception, It is in the interest of the litigation party and judicial system itself. The parties are saved their time and unnecessary expenses and the Courts gets more time to devote it for the genuine causes."
(viii) In the case of Pakistan Agricultural Storage and Services Corporation Limited v. Mian Abdul Lateef and others (PLJ 2008 SC 1051) it was held that the object of Order 7, Rule 11 C. P.C, was primarily to save the parties from the rigours of frivolous litigation at the very inception of the proceedings.
(ix) In the case of Salamat Ali v. Khairuddin (PLJ 2007 Lahore 1050) it was observed that although the proposition that a Court while rejecting the claim under Order 7, Rule 11, CPC could only examine the contents of the plaint was correct nevertheless, this rule should not be applied mechanically. n the case of Arif Majeed Malik and others v. Board of Governors Karachi Grammar School (2004 CLC 1029) it was noted that the traditional view was that in order tox reject a plaint under Order 7, Rule 11 only the contents of the plaint were to be looked into, It was added, however, that this view had since been modified to the extent that an undisputed document placed on record could also be looked into for the aforesaid purpose.
(xi) In the case of Halima Tahir and 5 others v. Naheed and others (2004 MLD 227) it was held that in deciding a case under Order 7, Rule 11 only the averments in the plaint are to be considered.
(xii) 1h the case of Ghulam Dastagir and others vs. Mariyum and others (1993 MLD 1005) the point was reiterated and it was added that the allegations in the plaint have to bp accepted as correct.
(xiii) Additional High Court judgments which do not add anything further to what has been contained hereinabove are contained in the cases reported in 1981 CLC 1009, 2006 CLC 919, 2006 CLC 303, 1981 CLC 533, 1981 Karachi 604, PLD 1978 Karachi 267 and therefore need not be examined any further.
12. After considering the ratio decidendi in the above cases, and bearing in mind the importance of Order 7, Rule 11, we think it may be helpful to formulate the guidelines for the interpretation, thereof so as to facilitate the task of Courts in construing the same: Firstly, there can be little doubt that primacy, (but not necessarily exclusively) is to be given to the contents of the plaint. However, this does not mean that the Court is obligated to accept each and every averment contained therein as being true. Indeed, the language of Order 7, Rule 11 contains no such provision that the plaint must be deemed to contain the whole truth and nothing but the truth. On the contrary, it leaves the power of the Court, which is inherent in every Court of justice and equity to decide whether or not a suit is barred by any law for the time being in force completely intact. The only requirement is that the Court must examine the statements in the plaint prior to taking a decision.
Secondly, it is also equally clear, by necessary inference, that the contents of the written statement are not to be examined and put in juxtaposition with the plaint in order to determine whether the averments of the plaint are correct or incorrect, In other words the Court is not to decide whether the plaint is right or the written statement is right. That is an exercise which can only be carried out if a suit is to proceed in the normal course and after the recording of evidence, In Order 7, Rule 11 cases the question is not the credibility of the plaintiff versus the defendant, It is something completely different, namely, does the plaint appear to be barred by law.
Thirdly, and it is important to stress this point, in carrying out an analysis of the averments contained in the plaint the Court is not denuded of its normal judicial power, It is not obligated to accept as correct any manifestly self- contradictory or wholly absurd statements. The Court has been given wide powers under the relevant provisions of the Qanoon-e-Shahadat. It has a judicial discretion and it is also entitled to make the presumptions set out, for example in Article 129 which enable it to presume the existence of certain facts, It follows from the above, therefore, that if an averment contained in the plaint is to be rejected, perhaps on the basis of the documents appended to the plaint, or the admitted documents, or the position which is beyond any doubt, this exercise has to be carried out not on the basis of the denials contained in the written statement which are not relevant, but in exercise of the judicial power of appraisal of the plaint.
13. We have examined the plaint on the touchstone of the above criteria and find that from the admittedly executed agreement between the parties, which is the document sued upon and the entire case of the petitioners is structured thereupon, it postulates a 'date fixed' for the performance thereof and no case for the exemption, the enlargement and the exclusion of period of limitation has been set out, in the plaint as per Order 7, Rule 6, C.P.C, therefore, the suit undoubtedly appeared from statement in the plaint to be barred by the limitation and has been rightly rejected by the Courts.
14. While considering the other submissions of the learned counsel for the petitioners, i.e. (i) regarding the stipulation in the agreement to pay mark-up as liquidated damages, on account of delayed payments of consideration by the petitioners as per the schedule of the agreement (ii) the effect of the pending litigation, In relation to the first, it is held that such stipulation again may have relevance about the question before the Court whether the contract should be enforced or not, and the time is the essence of the contract or otherwise, but undoubtedly it has nothing to do with the proposition of limitation. About the second plea, it has neither been averred in the plaint nor any order of the Court of competent jurisdiction has been filed along with the suit to establish, if any injunctive or prohibitory order was passed by the Court, on account of which the vendor was specifically restrained to complete the transaction qua the agreement between the parties and/or to file the suit. Mere initiation of a tis by a third party shall not be a cause or a ground for the exclusion of the period of limitation within the parameters of Section 15 of The Act, entitling a party to an agreement to avoid and/or of his own refrain to perform his obligations of the agreement and to wait for such litigation to end and allow the statutory period of limitation to pass by. No exclusion/exemption qua the period of limitation in law can be claimed by the plaintiff on account of the pendency of the litigation simpliciter, where there is no order of the Court preventing him to file the suit. See Narayan Jivangouda Patil and another v. Puttabai and others (AIR 1945 PC 5).
15. In the light of what has been discussed above, we do not find this to be a fit case for the grant of leave. Petition is, accordingly, dismissed. Leave to appeal declined.