' SYED SAJJAD HASSAN SHAH, J.--- Petitioners Mst. Jan Ara and another have filed the present revision petition against the judgment and order dated 3-1-2009 of the learned Additional District Judge-XII, Peshawar, whereby, the appeal of respondents against the judgment and order dated 8-3-2008 of the learned Civil Judge-II, Peshawar was accepted and the application of petitioners under Order VII, Rule 11, C.P.C. Was dismissed and restored the plaint of the respondents.
2. Brief facts of the case are that respondents instituted a suit for declaration to the effect that petitioner/defendant No,1 is not the real daughter of defendant No,3 (now dead) and no relationship of father and daughter had existed, thus, there is no link or nexus between defendants Nos.1 and 3, therefore, defendant No,1 has no right or authority to call herself as the daughter of defendant No,3 or claim any benefit in wake of the said relation and that petitioner/defendant No,2 is no more wife of defendant No,3, as petitioner/defendant No,2 has already been divorced by the defendant No,3, therefore, she has also no legal right to claim any benefit of the said relation. .
3. The petitioners while joining the proceedings in case has filed an application under Order VII, Rule 11, C.P.C. For the rejection of the plaint. The respondents contested the said application by filing replication. The learned trial Court after hearing the learned Counsel for the parties, accepted the application filed under Order VII, Rule 11, C.P.C. By the petitioners vide judgment and order dated 8- 3-2008 and rejected the plaint, The respondents took the matter in appeal before the learned Additional District Judge, which was accepted and set aside the judgment and decree vide impugned judgment and order dated 3-1-2008 and remanded the case to the learned trial Court with the direction to decide it on merits. Aggrieved from the same, the petitioners have filed the present revision petition.
4. Learned counsel for petitioners contended that the learned trial Court has lawfully accepted the application filed by the petitioners under Order VII, Rule 11, C.P.C. And rejected the plaint, while the learned Appellate Court reversed the said findings and dismissed the application of the petitioners and restored the suit of the respondents vide impugned order, which is apparently wrong, illegal and unlawful.
5. As against that, the learned counsel for the respondents defended the judgment and order of the learned Appellate Court and contended that the learned Appellate Court through an elaborate and well-reasoned order has dismissed the application filed by the petitioners under Order VII, Rule 11, C.P.C. And restored the suit of the respondents with the direction to the learned trial Court to decide the lis on its merits. He argued that the provisions of Order VII, Rule 11, C.P.C. Have not been attracted to the case of the respondents, as cause of action being disclosed from the averments made in the plaint. He further contended that the application for rejection of the plaint was made at an early stage of the proceedings, when neither issue were framed nor evidence was recorded to prove the averments made in the pleadings because the matter in issue could not be decided without recording pro and contra evidence of both the parties. He lastly prayed for dismissal of the instant petition.
6. I have heard the learned counsel for the parties and carefully perused the entire record.
7 A perusal of contents of plaint filed by the respondents against the petitioners revealed that the respondents have the cause of action as they are seeking the declaration to the effect that the petitioner/defendant No,1 is not the real daughter of the defendant No,3 and that the petitioner/defendant No,2 is no more wife of defendant No,3 as she had been divorced by the defendant No,3, therefore, they have no legal right to claim any benefit of the said relationship. The averments made in the plaint prima facie disclose the cause of action, therefore, the provisions of Order VII, Rule 11, C.P.C. Would not be attracted to the facts of the instant case. Similarly, the petitioners have neither filed any written statement nor issues have been framed, hence, the application for rejection of plaint, was made at the early stage, which is not permissible under the law.
8. The criteria to be followed while ascertaining the cause of action is that whether the facts mentioned in the plaint sufficiently disclosed the cause of action or not? In this view of the matter, the averments made in the plaint are to be considered in its entirety and there from the cause of action would be determined. The word "cause of action" denotes that the bundle of facts if traversed by the opposite party, it is the plaintiff to prove those facts for grant of decree in his favour. The single fact is not sufficient to arrive at the conclusion that cause of action existed or not.
9. Since rule 11 of Order ibid being penal provision, to have construed strictly by considering the statements made in the plaint in the light of law applicable thereto and not to be resorted to unless, conditions for exercise of such drastic powers are fully satisfied. Moreso, if the plaint is suffering from any legal infirmity entailing its rejection. In such eventuality, the plaintiff has the right to amend his plaint for the clarity of vagueness appearing in the plaint, so that it may conform with the relevant provisions of law, as the cherished goal of law is that the matter to be decided on its merits so that the litigants are not to be deprived of their valuable rights in the wake of their technical knockout. The Court is empowered that instead of rejecting the plaint may act under Order VI rule 17, C.P.C. To allow the amendment of pleadings, inasmuch as under this rule the Court is not precluded from allowing an opportunity to remove the defect. Thus, this ground cannot be availed by the petitioners/defendants for rejection of the plaint.
10. During the course of arguments, it was vehemently submitted by the learned Counsel for the petitioner that the form of the suit is not in accordance with law, hence, no cause of action is emanating therefrom, therefore, its very maintainability seems to be doubtful. In this regard, it is apt to say that while going through the entire averments of the plaint, it can be safely concluded that the respondents/plaintiffs are seeking relief against the petitioners/defendants while refuting the relationship of petitioners/defendants Nos.1 and 2 with defendant No,3 and in case of his success in the matter in issue, he would be the beneficiary of the same. Thus, they are having the interest in the suit property and have the right to sue the petitioners/defendants.
11. As far as the claim of negative declaration is concerned, the objection is not tenable for the reason that the rule is not of universal application, however, where in a plaint the relief sought for in negative form of declaration, its refusal has not been justified. As there is no absolute bar contained anywhere in law, because in order to overcome, the various complexities of law and procedure, the Courts are bestowed with the unbridled authority to do away with all those impediments, hampering with the fair dispensation of justice. In this respect, the Observation made in case Abdur Rahman Mobashir and 3 others v. Syed Amir All Shah Bokhari and 4 others (PLD 1978 Lahore 113), can be relied upon:---- "Negative declaration can be granted on principle that what can be done directly can also be justified if is done indirectly. Such declaration must, however, also be one affecting Home threatened injury or infringement, of plaintiff's right.
12. The necessary corollary of the above discussion is that the learned Trial Court had gravely erred to pass the order of rejection of plaint, which order was justly and lawfully set aside by the learned Appellate Court and restored the suit of the respondents with the direction to the learned trial Court to decide it on merits.
13. The present revision petition is without any substance, hence, dismissed.