' CH. MUHAMMAD IBRAHIM ZIA, J.--- The instant appeal, with the leave of the Court is filed to assail the propriety of the judgment of the High Court dated 27-4-2006, whereby the judgments of the subordinate Courts have been set aside and the suit is remanded to the trial Court for hearing and disposal on merit.
2. The facts giving rise to this appeal are that respondent No,1 filed a declaratory suit in the Court of Civil Judge Mirpur. The gist of the suit is summarized in the prayer clauSe, which reads as following:--{{URDU TEXT}}
3. The defendants (appellant herein) filed an application for rejection of the plaint under the provisions of Order VII, Rule 11 of the C.P.C, which prevailed and the plaint was rejected by the trial Court vide order dated 30-5-2004 on the sole ground that the suit is barred under the provisions of section 172 of the Land Revenue Act. The first appeal met the same fate through the judgment of the Additional District Judge Mirpur dated 30-3-2005. The respondents filed second appeal before the High Court which succeeded through the impugned judgment dated 27-4-2006. Ultimately by setting aside the judgments of the Lower Courts, the case has been remanded to the trial Court for hearing and disposal on merit.
4. Mr. Muhammad Younas Arvi, Advocate, who is also appellant, argued the case at some length and stated previous history of litigation with reference to some judgments of the Civil Court and the Revenue Court. He also submitted that not only the plaint but the other record and material available in the Court, should also be considered at the time of rejection of the plaint. He focused his arguments on four points:--
(i) that the plaintiffs-respondents have got no cause of action;
(ii) that the suit is barred by law because under the provisions of section 172 of the Land Revenue Act, no decree for correction in the revenue record can be granted;
(iii) that the suit is time-barred; and
(iv) therefore, the principle of res judicata is attracted in this case.
' He argued with full vehemence that the judgments passed by the trial Court as well as the first appellate Court are consistent with the principle of law, whereas the learned Judge High Court has grossly erred in law by setting aside the same, hence the impugned judgment is not sustainable.
He placed reliance on 2003 YLR 1788.
5. Mr. Muhammad Reaz Tabassum, the learned counsel for the respondents, while controverting the arguments of the learned counsel for the appellant, forcefully defended the impugned judgment of the High Court. He submitted that the trial Court as well as the first appellate Court's judgments is against the record. The trial Court has drawn wrong conclusion, that the suit is only for correction of land revenue record, hence is barred under section 172 of the Land Revenue Act, whereas in the main prayer of the plaint the plaintiffs-respondents sought declaration of rights with the consequential relief of perpetual injunction. This aspect of the case has been totally ignored by the trial Court as well as the first appellate Court. He further contended that the questions of limitation and res judicata also require evidence and inquiry as such on these grounds the plaint cannot be rejected. He father contended that for rejection of the plaint, the contents of the plaint are only to be considered and not the defence version. The judgment of the High court is unexceptionable and this appeal is not maintainable.
6. We have paid our utmost attention to the respective arguments of the learned counsel for the parties and also gone through the record made available. The only point which requires consideration is application of the provisions of Order VII Rule 11, C.P.C. According to the version of the learned counsel for the appellant, not only the plaint but the documents annexed with the plaint and the defence version should also be considered by the Court while deciding the application for rejection of plaint. Although the codal provision is very much clear and doesn't admit any such interpretation that for the rejection of plaint the other material should also be considered, but in some judgments the superior Courts have opined that the documents annexed with the plaint referred to in the averments of the plaint which are undisputed Of admitted may be considered. Be that as it may, however it is the interpretation of the Courts, keeping in view the peculiar facts and circumstances of the cases. We have no cavil with the principle that for rejection of plaint consideration of undisputed and admitted material or the documents in support of averments of plaint may be considered by the Court, but the statutory provisions are abundantly clear. In Haji Allah Bakhsh's case (1995 SCM R 459) the Supreme Court of Pakistan has dealt this proposition in the following manner:-- "(4) The above contention seems to be devoid of any force. 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, the plaint is liable to be rejected. The above clauses read as follows:-- "(a) Whether it does not disclose a cause of action?
(b) Where the relief claimed is undervalued, and 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."
(5) In the present case on the basis of the contents of the plaint, it could not have been held that the plaint does not disclose any cause of action or that relief claimed is undervalued and the plaintiff failed to correct the valuation in spite of the time fixed by the Court or the plaint is written upon insufficient stamp paper and the plaintiff failed to supply the requisite stamp-paper within the, time fixed by the Court or that the suit was barred from the statement in the plaint by any law.
In this view of the matter, the learned Civil Judge was competent to reject the above application under Order VII, Rule 11, C.P.C. The petitioner is free to raise whatever legal or factual pleas are available to him to show that the suit is not maintainable but the rejection of the plaint could not have been sought on the above grounds which were pressed into service. Leave is refused."
' In a case reported as 2008 SCM R 1037, the apex Court has held:- "(41 We have examined the impugned judgment as well as material available on record in the light of arguments so advanced by the learned counsel for the petitioner. It is well-settled principle of law that a plaint can be rejected if the case falls within the four corners of the provisions of Order VII, Rule 11, C.P.C. Keeping in view the contents of the plaint and material available on record in respect whereof there is no dispute between the parties, we inquired from the learned counsel as to whether the averment made in the application: seeking rejection of the plaint by the petitioner were accepted and the facts mentioned therein were admitted by the other side, he stated that contents whereof were denied. Therefore, in such view of the matter we are of the opinion that so far as the question of earlier litigation between the parties and its disposal in terms of compromise is concerned, it is a question which can only be settled after framing of issue and recording of evidence because parties are at variance on it and the respondent being plaintiff had not admitted the same in reply of the application. Since the trial Court had entertained the plaint on the basis of whatever cause of action was mentioned therein, therefore, under these circumstances, it would be appropriate if the trial Court is allowed to proceed with the matter and thereafter decide the issues including the one with regard to previous litigation ended with compromise between the parties after recording of evidence."
The averments of the plaint and the material referred reveal that the parties are at variance on question of fact which cannot be resolved without recording the evidence. In such state of affairs the rejection of plaint under the provisions of Order VII Rule 11 is not justified. This Court in a case reported as 2010 SCR 295 held:-- "May be as it is our own study of relevant provisions of law and the authorities of superior Courts on identical points make it abundantly clear that each of the Courts below have concurrently come to the conclusion that preliminary issues cannot be decided without recording any evidence. The phraseology applied particularly that of Order VII, Rule 11 C.P.C. Does not clearly give an impression of binding nature that the Court cannot look into the facts brought on record. It is correct that the trial Court before rejecting defence version, but after the other party has-filed written statement and issues have been framed by the Court, the preliminary issues cannot be decided without recording evidence, if the Court finds itself of the opinion that the preliminary issues can better be decided after recording of evidence. The principle of concurrent findings of facts is equally applicable in such like cases. The appellants can raise the objection of rejection of plaint on the basis of preliminary issues after recording of evidence. The judgments recorded by the Courts below, therefore, need no indulgence. The appeal is, therefore, dismissed."
In another case reported as 2003 SCM R 1284, the Supreme Court of Pakistan held that on the question of res judicata the plaint cannot be rejected under Order VII, Rule 11 rather such question can only be resolved after framing proper issues. In Fatima Moheen's case reported as 1992 SCM R 1199, rejection of plaint on the question of limitation was declined. There are plethora of judgments on this legal proposition, however, the survey of case-law reveals that for rejection of plaint under provisions of Order VII, Rule 11, C.P.C. The main consideration is the contents of plaint or keeping in view the peculiar facts of the case some undisputed or admitted material or documents available, which according to the nature of the averments of the plaint can be considered as a part of plaint may also be considered. When on this touch stone the present case is judged, we don't feel any hesitation in holding that appreciation of the averments of the plaint and the documents annexed with it do not help us to draw the conclusion that the plaintiffs have no cause of action or the suit is barred by law.
7. Another ground on the strength of which the appellant stressed for rejection of plaint is, Sardar Khan's case reported as 2003 YLR 1788 but due to peculiar facts of the reported case the judgment is distinguishable because para 7 of the judgment reads as following:-- "(7) The appellant wants the correction of the Revenue Record which as rightly pointed out by the learned counsel for the respondents is within the exclusive competence of the Revenue Department as has been laid down in section 172 of the Land Revenue Act, 1967, adopted in this part of the State whereby the jurisdiction of Civil Court in cases where the correction of any entry in the record of rights or in the periodical record or registrar of mutations is concerned, has been excluded besides some other matter are within the exclusive competence of the Revenue Officers.
The suit filed by the plaintiff-appellant seeking correction of any entry recorded in the record of rights, khasra girdawari' in the light of the new settlement, therefore, can be competently entertained by a competent Revenue Officer and not by a Civil Court. Even from this angle the suit of the plaintiff-appellant was not maintainable before a Civil Court."
' In the referred case it has been observed that the Civil Court cannot issue direction to the Revenue authorities regarding the correction of entries, of the Revenue Record. We have no cavil with the principle of law laid down in this report but in the present case there are multiple prayers, therefore, on this sole ground the plaint can be rejected, if the plaintiff has prayed for some other remedies as well. Our this view is fortified from Kh. Muhammad Akbar's case 2000 SCR 211, the concluding para of which speaks:-- "In the light of what has been stated above, we partly accept the appeal and amend the judgments and decrees of the District Judge and the High Court in terms that the trial Court shall not issue any direction regarding the correction of the entries to the revenue authorities as prayed by the plaintiffs-respondents. So far as the other reliefs are concerned, the trial Court shall decide the same according to law."
8. The plaintiffs have claimed multiple remedies in their prayer clause which has been reproduced hereinabove. Even for the sake of argument, if any one of the prayer cannot be granted it doesn't mean that the suit will be treated barred for all other claimed remedies. While attending this question the superior Courts are unanimous on the question that under the provisions of Order VII, Rule 11 the plaint can only be rejected if all the reliefs claimed, as, are barred under the law. If some of the reliefs claimed are available, the plaint cannot be rejected because under the codal provisions, there is no concept of piecemeal rejection of the plaint. The latest judgment on the point is Azhar Muhammad v. Messrs Memon Housing Services (2009 M LD 1378) wherein it has been held:-- "It is by now well-settled principle of law that existence or absence of a cause of action is to be discovered from the recital of plaint or the documents on which such plaint is based and where a cause of action is disclosed in the plaint, plaintiff has a right to have a fair trial notwithstanding the defence taken in the written statement. Likewise a plaint can only be rejected where all the relief claimed by the plaintiff were barred by any law, however, where some of the reliefs claimed are barred the plaint cannot be rejected as a plaint can only be rejected as a whole and not in piecemeal." (Underlining is ours)
9. In our considered opinion the controversial point raised by the parties can only be resolved after framing of issues. Under the provisions of Civil Procedure Code, even the trial Court is equipped with the powers that after framing issues, the suit can be disposed of partly or in toto by deciding the purely legal issues, it can be done so but without framing issues or providing opportunity of hearing and leading evidence to the parties in the peculiar facts and circumstances of the case the rejection of the plaint is not justified. Thus the impugned judgment of the High Court doesn't suffer from any legal infirmity, hence the same is upheld. Consequently this appeal fails without any order as to costs.