1. ' GHULAM MUSTAFA MUGHAL, C.J.---This second appeal arises out of the following facts:-- ' Mst. Khurshid Begum, appellant, herein brought a suit for declaration and perpetual injunction against defendants/respondents herein, in the court of Civil Judge Mirpur on 19-10-2007. It was averred that land measuring 29 kanals 13 marlas comprising Khasra No,938 situated in village Khari Tehsil and District Mirpur was in the ownership of her mother namely Mst. Reshman widow of Ahmed Din. The said land was transferred in her favour by the Custodian vide Proprietary Rights Certificate No,468 dated 24-1-1982. It was further averred that defendant/respondent herein, was an agent who assured the plaintiff to send her son abroad in lieu of Rs,6,00,000. The defendant asked the plaintiff to transfer her land measuring 9 kanals 1 marla 7 Sarsai out of the aforementioned khasra number through an agreement-to-sell as guarantee of the expenses. It was claimed that plaintiff is a "Parda Nasheen" and illiterate lady and the defendant by taking undue advaniage of the fact got executed sale-deed in the garb of agreement-to-sell in his favour without any consideration on 19-12-2002. On coming to know about the fraudulent transaction, the plaintiff/appellant asked the defendant to get the same cancelled but he refused.
2. ' The suit was contested by the defendant No,1 by filing written statement. It was pleaded that some necessary parties have not been impleaded in line of the defendants therefore, the suit is not maintainable. It was further pleaded that the plaintiff is estopped by her conduct. It was claimed that plaintiff in presence of the witnesses had executed the sale-deed under challenge in lieu of Rs,6,00,000 and thereafter, possession of the transferred land was also delivered by her. The other pleaded facts in the plaint were also denied by the defendant. The learned trial Court on 25-8- 2008 framed issues arising out of the pleadings of the parties. Issues Nos.3 and 4 were treated as preliminary issues. After hearing the arguments, the learned trial Court vide its Judgment dated 28-4-2009 dismissed the suit. It was opined that suit is not maintainable for want of cause of action and also is liable to be dismissed for having been filed after prescribed period of limitation.
3. A Appellant herein, felt aggrieved from the judgment and filed an appeal before the learned District Judge Mirpur on 6-5-2009. The learned District Judge vide his judgment and decree dated 21-5- 2011 maintained the findings of the trial Court and dismissed the appeal.
4. ' Mr. Sadaqat Hussain Raja, the learned counsel for the appellant argued that plaint could not be dismissed for want of cause of action rather the Court was empowered to reject the plaint under Order VII Rule 11 of the Code of Civil Procedure. The learned advocate contended that plaintiff challenged the validity and propriety of the sale-deed on the ground that the same has been procured through fraud and deception because as per her stand, she executed only an agreement-to-sell as guarantee of money which was likely to be spent by the defendant for sending her son abroad. The learned advocate further contended that only averments made in the plaint could be looked into for judging the question as to whether plaint did disclose cause of action. He argued that defence taken in the written statement could not be taken into consideration while exercising the jurisdiction conferred on the Court under Order VII Rule 11 Civil Procedure Code. The learned advocate maintained that plaintiff/appellant was an illiterate and a "Parda Nasheen" lady, hence, the Court was duty bound to look after her interest and provide her an opportunity for proving her case through evidence.
5. ' On the other hand, Mr. Mushtaq Ahmed Janjua, the learned Advocate for the respondents vehemently argued that both the Courts below concurrently came to the conclusion that the suit was not maintainable for want of cause of action and for having been filed after the prescribed period of limitation, hence, the powers conferred on the trial Court under Order VII Rule 11 of the Code of Civil Procedure have been exercised by the subordinate Courts in a legal fashion. He further argued that concurrent findings of facts cannot be disturbed in second appeal until a party proves that such findings are based on no evidence, capricious and arbitrary. The learned Advocate maintained that as the suit filed on behalf of the appellant herein, was incompetent, hence, was liable to be buried at an earlier stage so that parties could be saved from fruitless litigation.
6. ' I have heard the learned Advocates for the parties and gone through the record of the case.
7. ' Order VII Rule 11 of the Civil Procedure Code relates to the rejection of the plaint. This provision of law empowers the Court to reject the plaint in four eventualities:-
(a) Where it does not disclose a cause of action;
(b) Whore the relief claimed is under valued, 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 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.
8. ' While exercising the jurisdiction under the abovementioned provision of law, Court has to look into only averments made or facts pleaded in the plaint. Neither the defence set up by the defendant can be taken into consideration by the Court nor the order of dismissal of the suit can be passed under Order VII Rule 11 of the Civil Procedure Code, as has been done in this case. A perusal of the record reveals that the learned trial Court framed issues on 25-8-2008. Issues Nos.3 and 4 were treated preliminary issues. Issue No,3 was as to whether plaintiff has cause of action and issue No,4 was as to whether suit was maintainable for non-joinder of necessary parties. So far as issue No,3 is concerned, it was raised with regard to cause of action. The plaintiff/appellant herein, categorically alleged that fraud has been committed with her because she has not executed any sale-deed rather an agreement-to-sell regarding the suit property was executed by her as guarantee of money likely to be spent for sending her son abroad. She had also pleaded that she came know about fraud a month before institution of the suit, therefore, by no stretch of imagination it can be said that plaint did not disclose any cause of action. What constitute the cause of action and under which circumstance an order for rejection of the plaint would be passed by Court had been thrashed out by the superior Courts. The provision of Order VII Rule 11 of the Civil Procedure Code received the attention of the apex Court of Azad Jammu and Kashmir in Mir Qamar-ul-Zaman's case 1995 CLC 1982. Their lordships after survey of the case law opined that while exercising the powers conferred on the Courts under Order VII, Rule 11 of the Civil Procedure Code, averments made in the plaint only has to be looked into and the defence set-up by the defendant cannot be considered. At page 21 of the report it was observed:-- ---The principles involved are twofold; firstly it contemplates that a still born suit should properly be buried at its inception, so that no further time is consumed on fruitless litigation secondly it gives the plaintiff a chance to retrace his steps, at he earliest possible moment, so that, if permissible under law he may found a properly constituted case. The rejection of plaint under Order VII Rule 11 is clearly distinct than the dismissal of the suit. The rejection of the plaint takes away the very basis of the suit, and the position is the same as if no suit was filed at all, the dismissal of a suit while recognising the existence of the suit undertakes its termination, so that in the former case the plaintiff would not under Rule 13 be precluded from filing a fresh plaint in respect of the same cause of action if he so desires. But in case of dismissal it would operate as a bar to any further suit on the same cause of action."
9. (Under linings are mine).
10. ' Again in para 7 of the report it was observed as under:-- "The expression "cause of action" used in the Code refers in general sense, and signifies averment of fact or state of facts, giving rise to a claim or right of the plaintiff against the defendant, sufficient to enable a court to render a judgment or to-grant relief. It excludes relief sought for and plea of defendant. In order to ascertain the cause of action, it is incumbent upon the Court to apply its mind to the averments of facts, made in the plaint and conclude as to whether presuming the averments to be true, it can grant a relief to the plaintiff or not. In case it is satisfied that on such presumption relief can be allowed, it shall not reject the plaint by invoking provisions of Rule 11."
11. ' The same view has been taken in Mst. Begum Jan's case (PLD 1988 SC (AJ&K) 142).
12. ' In view of the above discussion, I am of the view that Civil Judge as well as the learned District Judge Mirpur failed to attend legal provisions contained in Order VII Rule 11 of the Code of Civil Procedure. The order of dismissal could not be passed under the D abovementioned provision of law. At the most the plaint could be rejected. The disposal of the suit on the ground of limitation when it was not a pure question of law was also erroneous. The complicated questions of law and facts cannot be resolved, without providing the parties a reasonable opportunity to lead evidence in support of their E respective pleadings. The Courts are not supposed to knock out the parties technically rather their duty is to administer the justice between the parties for which they have created.
13. ' The upshot of the above discussion is that the judgment of Civil Judge, Mirpur dated 28-4-2009 and that of District Judge, Mirpur dated 21-5-2011 are hereby set aside and the case is remanded to the trial Court who shall proceed with the case in accordance with law. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.