' ZAFAR AHMED RAJPUT, J.--- This civil revision under section 115, C.P.C. Is directed against the judgment and decree dated 7-9-2012 passed by the learned Vth Additional District Judge, Sukkur in Civil Appeal No,88 of 2011, affirming the rejection of plaint under Order VII, Rule 11, C.P.C. In F.C. Suit No, 72 of 2007 by the learned Court of 1st Senior Civil Judge, Sukkur vide order dated 30-9-2011, filed by the respondent/defendant No,l.
2. Brief facts leading to the present lis are that the applicant/plaintiff filed a suit for specific performance of contract and permanent injunction alleging therein that the respondent No, 1/defendant is owner of the houses bearing C.S. No,537/2 and C.S. No, 537/3B, total measuring 800.8 sq. Yds located at Manzil Gah Road, near Regent Cinema Sukkur. She asserted that an agreement to sell regarding suit property was executed between her and respondent No,1 on 28-3-2007 whereby respondent No,1 sold out suit property to her in sum of Rs,1600,000/- and received sum of Rs,300,000/- in cash and Rs,400,000/- through cheque to be drawn from the account of her son; that it was agreed by the parties that remaining amount of Rs,900,000/- shall be paid by her till 15- 4-2007 at the time of execution of sale-deed in her favour; that the suit property was already in her possession; that after expiry of stipulated time of the agreement, the applicant approached to respondent No,1, for execution of sale-deed with balance amount of sale consideration but the respondent No,1 avoided to execute the sale-deed on one or other pretext; that she approached to respondent No,1 many times but found him reluctant then on 20-4-2007 he refused to execute the sale-deed; that the respondent No,1 had promised to withdraw the cases pending against her in the Court of II-Senior Civil Judge, Sukkur and in High Court but he did not fulfil the terms and conditions of agreement. Hence, she prayed in her suit for the relief as under:---
(a) To pass judgment and decree whereby directing the defendant No,1 to perform specifically the remaining part of the contract, i,e, agreement to sell dated 28-3-2007 in respect of suit properties and execute registered sale-deed before Registrar and in case of failure, the Nazir of the Court may be directed to get the sale-deed registered in the name of plaintiff.
(b) To restrain the defendants Nos.1 to 4 not to bring any change in the official record in respect of suit properties during the pendency of present suit.
(c) To grant permanent injunction whereby directing the defendant No,1, not to alienate, sale, mortgage, gift the suit properties whatsoever in the manner and not to harass or to humiliate or to disturb the plaintiff.
3. The respondent No 1 filed his written statement on 22-10-2007 contesting the suit on legal and factual grounds. On 28-8-2010 he filed the application under Order VII, rule 11, C.P.C., alleging therein that there is no cause of action and that in view of judicial and admitted documents, filed by him, the applicant/plaintiff's suit is false, frivolous, vexatious and not maintainable in law.
4. The learned trial Court having been heard the application rejected the plaint vide order dated 30-9-2011. The order was assailed before the District Judge, Sukkur in Civil Appeal No,88 of 2011, he marked the said appeal to learned Vth Additional District Judge, Sukkur, who dismissed the appeal vide judgment dated 7-9-2012.
5. I have heard Mr. Bahadur Ali Shah Advocate, the learned counsel for the applicant, and perused the material available on record.
6. Mr. Bahadur Ali Shah has argued that the matter was fixed for evidence of applicant's side; as such, the respondent No,1 filed application under Order VII, rule 11, C.P.C., at belated stage. He is of the view that the plaint cannot be rejected at advance stage of the suit. In support of his contention he has relied on the case of Muhammad Ramzan v. Sargodha Textile Mills Ltd., NLR 1996 CLJ 99. The learned counsel has also contended that the learned trial Court rejected the plaint forming his view on the basis of the documents filed by the respondent No,
1. According to him, this approach of the learned trial Court was against the rule of law, hence the impugned order is liable to be set aside.
7. I have given my conscious consideration to the material available on record. It appears that there was a previous round of litigations between the parties, which applicant/plaintiff has not disclosed in her plaint and apparently she has tried to conceal it from the Court, The detail thereof is given as under:---
(i) Muhammad Younus, the deceased husband of applicant, had filed F.C. Suit No,106 of 1997 in the Court of learned 1st Senior Civil Judge, Sukkur wherein he, denying the title of the respondent No,1, asserted that the suit property was evacuee trust property and the same is owned by Evacuee Trust Property Board.
(ii) The respondent No,1 had filed F.C. Suit No, 23 of 2001 for possession, mesne profit and permanent injunction against the applicant and her sons in respect of a portion of the property in their possession, wherein the applicant and her sons took plea in their written statement that not only the respondent No,1 but the Evacuee Trust Property Board is the owner of suit property.
(iii) The plaint in Suit No,106 of 1997, filed by Muhammad Younus, the deceased husband of the applicant, was rejected under Order VII, Rule 11, C.P.C., vide order dated 15-11-1997. The said order was maintained by learned III Additional District Judge, Sukkur in Civil Appeal No,42 of 1997 vide judgment dated 6-2-1999. The order passed by learned III-Additional District Judge, Sukkur was assailed by the deceased husband of applicant before the. High Court of Sindh, Bench at Sukkur in Civil Revision No,38 of 1999, which was also dismissed by the High Court with observation that he had no legal character and right of occupation of the suit property and that the circumstances showed that he had filed the suit only in order to protect his illegal possession on the suit property and he preferred the suit with a view to perpetuate his illegal possession over suit property depriving the real owner from its possession for more than 21 years and respondent has been deprived from long time by way of various reasons created by applicant which resulted in delaying of justice. The High Court also found it just and proper to saddle the applicant with costs of Rs,10,000/-, which was paid to respondent. The observations of the High Court of Sindh, passed in Civil Revision No,38 of 1999, have attained the finality as the judgment dated 21-1-2001 was not challenged before honourable Apex Court.
8. It also appears that the respondent No,1 had filed C.P. No,D-104 of 2003 and C.P. No, D-105 of 2003, whereby he impugned the order of Chairman Evacuee Trust Property Board, Lahore dated 16-3- 2002. The petitions were allowed and the order impugned therein, passed by the Chairman ETPB, Lahore, was set aside. This order was challenged by the Chairman ETPB before honourable Supreme Court of Pakistan in Civil Petitions Nos.481 and 482 of 2006 but the petitions were dismissed and leave to appeal was refused vide judgment dated 18-9-2006. As such, the assertions of appellants' husband in Civil Suit No,106 of 1997 that suit property was evacuee trust property was refuted by the High Court as well as the honourable Supreme Court of Pakistan.
9. Keeping in view above mentioned facts of the matter, the learned appellate Court has rightly observed that the applicant made a somersault while filing the instant suit i,e,, F.C. Suit No,72 of 2007 for specific performance of contract against the respondent No,1 wherein she admitted that respondent No,1 is the owner of the suit property and pleaded that respondent No,1 had executed an agreement to sell with her and received an amount of Rs,300,000 in cash and Rs,400,000 through cheque. The respondent has resisted the above suit through his written statement wherein he has denied the contents of the plaint regarding execution of sale agreement, receiving of cash of Rs,300,000 and has also denied that he had received any cheque from the son of applicant at any time. The applicant took the plea of purchasing of suit property when the Evacuee Property Board failed before honourable Supreme Court in getting the petition for leave to appeal allowed.
The earlier stand of applicant and her husband in previous round of litigation was that the Evacuee Trust Property Board was the owner of the suit property, but in the instant suit applicant admitted in her plaint that respondent No,1 is the owner of suit property. This is absolutely inconsistent plea to the previous round of litigation wherein it was vigorously pleaded that the portion in her possession was property of Evacuee Trust Property Board while her husband in Suit No,106 of 1997 pleaded that property was evacuee one and he was in the possession of a portion of the property by way of gift executed in his favour by one Ali Bux. This claim of deceased husband of applicant was denied by respondent No,1 in his written statement, filed in Suit No,106 of 1997, wherein he pleaded that he was exclusive owner of both survey numbers through sale-deed registered in his favour by Ali Bux son of Wahid Bux and his name was also mutated in the City Survey record Sukkur. It would be pertinent to mention here that record of City Survey was never challenged before any Court of law by the applicant or her husband or even by her sons and after opposing the claim of respondent No,1 by inconsistent rather false pleas, the applicant brought instant suit for specific performance admitting the title and ownership of the respondent No,1 in respect of suit property and such assertion of the applicant has been denied by the respondent No,1 in his written statement.
10. Looking into the background of 15 years old litigation, it is crystal clear that the applicant did not accept the defeat and she was not willing to vacate property and hand over it to the respondent No,1, therefore, she chooses to file the instant civil suit with and mala fide intention to deprive the respondent No,1 from his right in suit property and she brought a suit to get the so-called contract enforced through Court. The so-called sale agreement shows that it has been executed during pendency of Civil Suit No,23 of 2001 which is pending for decision from twelve years, so it cannot be believed in such bitter and hostile situation that the respondent No,1 would enter into any sale transaction with the applicant.
11. As regards to the contention of Mr. Bahadur Ali Shah, the learned counsel for the applicant that at advance stage of the suit the plaint cannot be rejected. I am in agreement with the learned counsel but in present case the plaint was rejected when the suit was fixed for evidence of applicant/plaintiff side; at that stage rejection of plaint cannot be termed as advanced stage of the trial. The other contention of learned counsel for the applicant is that the learned trial Court rejected the plaint forming his view on the basis of the documents filed by the respondent No,1, according to him, this approach of the learned trial Court was against the rule of law. I differ on this view, in peculiar facts and circumstances of the present case. The true copies of plaint and written statement in respect of previous round of litigation between the parties were filed by the respondent No,1, which are admitted and undisputed documents/pleadings. Suffice it to say, that under Article 111 of the Qanun-e-Shahadat Order, 1984, the facts judicially noticeable need not to be proved and the Article 113 of the said Order of 1984 speaks that no fact needs to be proved in any proceedings which the party thereto or their agents agree to admit at the hearing or which before the hearing, they agree to admit by any writing under their hands or which by any rule or pleading in force at the time they are deemed to have admitted by their pleadings. No doubt, years ago it was said that only plaint is to be examined whether it should be returned to plaintiff or be rejected under rules of Order VII, C.P.C., but by passage of time law has developed that the plaint and its accompaniments should be considered to find whether plaint should be returned under Rule 10 or be rejected under Rule 11 of Order VII, C.P.C. And now law has been developed that Court in addition to the plaint can look into admitted/undisputed documents such as record, of previous litigation.
This Court in the case of Mst Hajiyani Khadija Bibi v. Dawood and others reported as 2003 M LD 828, has observed that:--- "provisions of Order VII, Rule 11, C.P.C. Are not exhaustive of all situations in which plaint can be rejected in a suit. Further reading plaint in the suit for that purpose should not be formal but practical, meaningful, realistic and rational so as to record a correct conclusion from the pleadings rather than giving it an artificial and fanciful meaning. Moreover, to extend the true import of Order VII, Rule 11, C.P.C, apart from the averments of plaint, admitted/undisputed documents such as record of previous litigation can also be looked into. The Court while doing so has to keep in mind the true spirit of this provision of law that incompetent suit should be buried at its inception without any delay."
12. Keeping in view Articles 111 and 113 of the Qanun-e-Shahadat Order, 1984, there can be no cavil to the proposition of law that in the developing court has powers to examine the plaint and its accompaniments and undisputed/admitted documents filed by the defendant with the written statement to determine if the plaint is liable to be returned under Rule 10 of Order VII, C.P.C. Or be rejected under Rule 11 of Order VII, C.P.C. In the case of Mir Sahib Khan v. Janan reported as 2011 SCM R 27 the honourable Supreme Court has observed that:- "There is a growing tendency that even after final adjudication of the matter parties indulge in abuse of the process of law by way of frivolous, repetitive and fraudulent litigation. An onerous duty is cast on those charged with the difficult task of administering justice to take effective measure against the obstinate litigants and their lawyers as laid down by this Court in Bashir Ahmed v. Abdul Hameed (1984 SCM R 689), Abdul Hayee v. Sardar Muhammad (1984 SCM R 1149) and Jaliluddin v. H.B.L. And others (1985 SCM R 1965)."
13. The applicant has failed to establish that the alleged sale agreement is a true and genuine document; therefore, it does not in law provide to the applicant cause of action for maintaining the suit for specific performance of contract. It is requirement of law that still born suit should be buried at its inception stage, as it is in the interest of litigant parties and judicial system itself. This being the correct factual and legal position, the order of rejection of plaint passed by learned trial Court and maintained by the learned appellate Court was based on proper application of relevant provisions of law, and thus unexceptional. Therefore, this civil revision having no merit is dismissed in limine along with listed C.M.A.