' SYED HASAN AZHAR RIZVI, J.--- By this order, I intend to dispose of applications listed at Serial No,3 and 5 C.M.A. No,11849 of 2011, under Order VII, Rule 11, C.P.C., seeking rejection of the plaint against defendant No,7 and C.M.A. No,2499 of 2013, under Order I, Rule 10(2) read with section 151, C.P.C. Filed by the defendant No,7 with the prayer to strike out the name of defendant No,7 from the array of defendants, as the defendant No,7 is not a necessary or proper party and the presence of the same is not required for the complete and effective adjudication of the above title suit.
2. The plaintiff has filed this suit seeking declaration, cancellation of documents, permanent prohibitory and mandatory injunctions and damages against the defendants.
3. The brief facts for disposal of the above-noted applications are that plaintiff No,1 is a professional builder and has been carrying on business of constructing in different names including the name of Messrs A.S. Enterprises. The plaintiff No,1 along with his brothers i,e, defendants Nos.1 and 3 had acquired the property for constructing a project namely 'Prince Garden' comprising of five residential flats. They launched this project and the defendant No,7 purchased Flat No,102 (First Floor) in the said project and they were responsible for completing the project within time, finalizing the documentation including sub-leases of the flats and handing over the physical possession of the flats to the purchasers, including Flat No,102 to the defendant No,7. The defendant No,7 made full payment in instalments which were received by the brothers and after completion of the construction work the possession of Flat No,102 was handed over to the defendant No,7 by the plaintiff No,1 and defendants Nos.1 and 3. After taking over physical possession of the flat in question the defendant No,7 had started living in the said flat along with her family and continued to pay taxes and utilities etc. Since 1998. It was also stated for the last six years and two months the plaintiff did not object to the legal possession and legal title of the flat owners, neither did he make any claim regarding not receiving full and final consideration for the said flats, which speaks volumes and completely destroys his case. The defendant No,1 was authorized attorney of the plaintiff No,1, got the sub-lease of the flats, including the flat of defendant No,7 registered with concerned Sub-Registrar on 6-1-2005.
4. I have heard Mr. Zeeshan Adhi, counsel for, the defendant No,7, Mr. Muhammad Mustafa Hussain, learned counsel for the plaintiff, Mr. Basil Nabi Malik, counsel for the defendants Nos.1 to 5 and Mr. Jafar Raza, counsel for the defendants No,9 and 10.
5. Mr. Zeeshan Adhi, learned counsel for the defendant No,7 has argued that the suit is hit by principle of res judicata and the suit is liable to be rejected under section 11 of the C.P.C. As the present suit involves same question directly and substantially in issue between the plaintiff and defendant No,7 in Suit No,636 of 2005 filed by the defendant No,7 against the plaintiff, which was decreed in favour of defendant No,7 in respect of the same flat which is subject-matter of this suit.
He further argued that plaintiff No,1 filed H.C.A. No,74 of 2008, which was also dismissed, and subsequently plaintiff filed leave to appeal before Hon'ble Supreme Court of Pakistan, which too failed. He next contended that the suit is hopelessly barred by limitation as the sub-lease deed in favour of the defendant No,7, which the plaintiff seeks cancellation, was registered on 6-1-2005. He urged that plaintiff has no cause of action against the defendant No,7 and the plaintiff has no right or title in the suit property or any legal character as to the suit property. He also urged that plaintiff has approached to this Court with unclean hands and the present proceedings are based on a fraudulent suppression of facts and circumstances and the plaintiff cannot be granted any equitable relief sought by him against the answering defendant No,7. He submitted that the defendant No,7 after decreed the suit sold the suit flat. He also submitted that the plea of fraud, if any, as alleged by the plaintiff in the plaint is within time brothers i,e, plaintiff, defendants Nos.1 and 3, who are contesting the suit, therefore, no prejudice would be caused if the plaint is rejected against defendant No,7. He, therefore, prayed that plaint against the defendant No,7 may be rejected with heavy costs as the same is barred by section 11, C.P.C. As well as Limitation Act.
6. In support of his submissions, he placed on record the cases of Jewan and 7 others v. Federation of Pakistan and 2 others (1994 SCMR 826), Pakistan Agricultural Storage and Services Corporation Ltd. v. Mian Abdul Latif and others (PLD 2008 SC 371), Arif Majeed Malik and others v. Board of Governors Karachi, Grammer School (2004 CLC 1029), Imran Raza Shaikh and 5 others v. Mst. Zarina Gul and 4 others (2003 YLR 943), Mst. Chandani v. Rajasthan State and others (AIR 1962 Ragasthan 36), S.M. Shafi Ahmed Zaidi v. Malik Hassan Ali Khan (2002 SCMR 338) and Haji Abdul Karim and others v. Messrs Florida Builders (Pvt.) Limited (PLD 2012 SC 247).
7. Conversely, Mr. Muhammad Ghulam Mustafa Hussain, learned counsel for the plaintiffs has argued that plaintiff through the present suit challenged the special power of attorney dated 24-7- 2002, which was never executed by the plaintiff and has been fabricated by the defendants Nos.1 to
5. He argued that the defendant No,1 on the basis of the said forged special power of attorney has executed sub-leases in favour of defendants No,5 to 10 of different portions in the property owned by the plaintiff. He also argued that defendant No,1 presented the sub-leases before the Sub- Registrar on 6-1-2005 and due to objections filed by the plaintiff before the Sub-Registrar on 7-3- 2005 the said sub-leases were not registered and defendant No,7 had to file Suit No,636 of 2005. He submitted that the plaintiff has filed the present suit on 23-5-2009 i,e, within 1 year and 11 months from the date of knowledge of registration, Whereas under Article 91 of the Limitation Act the period of limitation is three years from the date when the fact entitling the plaintiff to have the instrument cancelled or set aside become known to him. He, therefore, submitted that the suit is within time.
8. Learned counsel for the plaintiff next contended that the issues involved in the suit require evidence to establish if the special power of attorney is a forged document and whether the defendants Nos.1 to 5 have cheated the plaintiff of his property. He further contended that if the special power of attorney is held to be cancelled then the whole superstructure built thereon would fall and all the sub-leases registered on the basis of that special power of attorney including the sub-lease in favour of defendant No,7 would stand cancelled. He further submitted that the plaint discloses cause of action against the defendants including defendant No,7 that all sub-leases executed by the defendant No,1 in favour of the defendants Nos.2 to 10 are illegal and liable to be cancelled.
9. As regards the plea raised by the learned counsel for the defendant No,7 that the suit is barred by res judicata, learned counsel submitted that the principle of res judicata is not applicable to the present case as Suit No,636 of 2005 of defendant No,7 was dismissed as withdrawn after statement dated 28-6-2007 filed by Sub-Registrar of having registered the sub-leases and the question of the special power of attorney being forged was never adjudicated upon. He also submitted that plaint cannot be rejected in piecemeal under Order VII, Rule 11, C.P.C. If even any one of the prayer is maintainable. He, therefore, submitted that defendant No,7 is a necessary party as the sub-lease executed in her favour is under cloud and is sought to be cancelled in the suit. He prayed for dismissal of listed applications. He placed reliance on the cases of Muhammad Sagib Abbasi v.
Province of Punjab (2013 CLC 158), Malik Imran Khan v. University of Karachi and others (2009 YLR 675), Muhammad Anwar and another v. Federation of Pakistan (2011 SCMR 499), Flt. Lt. (Dr.) Shariq Saeed v. Mansoob Ali Khan and 5 others (2010 YLR 1647), Attaullah and 6 others v. Sanullah and 5 others (PLD 2009 Karachi 38), Muhammad Younis Arvi v. Muhammad Aslam and 16 others (2012 CLC 1445) and Raees Ghulam Sarwar v. Mansoor Sadiq Zaidi and 4 others (PLD 2008 Karachi 458).
10. Mr. Basil Nabi Malik, learned counsel for the defendants No,1 to 5 and Mr. Jafar Raza, learned counsel for defendants Nos.9 and 10 have no objection to the grant of application under Order VII, Rule 11, C . P. C .
11. I have given due consideration to the arguments advanced by the learned counsel for the parties, perused the available material and the case-law cited by the learned counsel for the parties. The plaintiff has not even bothered to file counter-affidavit to the listed application. It is a matter of record that plaintiff sought cancellation of Special Power of Attorney dated 24-7-2002 being forged and fabricated document and denied that he has never executed any such document in favour of the defendant No,1 and on the basis of such document the defendant No,1 executed conveyance deeds in favour of different purchasers including defendant No,7. The defendant No,7 filed Suit No,636 of 2005 in which plaintiff No,1 was arrayed as defendant No,2. In the said suit the plaintiff Muhammad Salim examined on 20-6-2007 and deposed that "I have come to know in the year 2005, that the suit property has been leased out by defendant No,3 in favour of the plaintiffs and they claim possession since 1998. 1 have not taken any action against my brother, defendant No,3 nor against the plaintiffs." On the same day, Muhammad Altaf defendant No,1 has deposed that "The building subject-matter of the suit was constructed by us and the flats were sold to the plaintiffs who are living in the said building since 1998. Defendant No,2 was fully aware of sale of flats in favour of plaintiff in fact he was party of such transaction but due to dispute between us in the year 2001, he is denying the sale in favour of the plaintiff." The said suit was dismissed as withdrawn on 19-32008 on the basis of statement dated 28-6-2007. Thereafter the plaintiff filed High Court Appeal No,74 of 2008 challenged the order dated 19-3-2008, which was dismissed vide short order dated 26-5-2009 (detailed reasons recorded on 9-7-2009). The plaintiff challenged the said dismissal order before Hon'ble apex Court by filing leave to defend, which too was dismissed.
12. In the case in hand the main relief sought by the plaintiff is against the defendant No,1, who is his real brother. The defendant No,7, who was in possession of the Flat No,102 being purchaser for value, has already sold the said flat and now she has no nexus with the said flat. The defendant No,1 who executed the conveyance deed in favour of the defendant No,7 is hotly contesting the suit and he also recorded his no objection for the grant of listed application. Needless to mention here that the plaintiff is well aware of the transaction regarding sale of the flats, but he has not taken any sort of action against the purchasers or defendant No,1 as stated by him on 20-6-2007 for the reasons best known to him. Moreover, the plaintiff sought cancellation of Special Power of Attorney allegedly executed in the year 2002 through instant suit. Therefore, in my humble view no prejudice will be caused to the plaintiff if the plaint is rejected against the defendant No,7, who already sold the flat in question.
13. Most of the rulings cited by the parties, mention of which has been made in the preceding paragraphs, describe generally the law under Order VII., Rule 11, C.P.C. And a detailed discussion of the same is not necessary.
14. It is settled law that purpose of rejection of plaint is that stillborn suit ought to be buried at its very inceptions and no time be consumed on fruitless litigation and that plaintiff would have a chance to retrace his steps at the earlier possible time. To strengthen the above observations reference can be made to the case of Mst. Hajiani Khatija Bai and others v. Haji Dawood and 11 others (2003 MLD 828), wherein it has been held that apart from averments of plaint, admitted/undisputed documents such as record of previous litigation can also be looked into and 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.
15. Under these circumstances, application under Order VII, Rule 11, C.P.C. Is allowed and the plaint is rejected against defendant No,7. Resultantly, C.M.A. No,2499 of 2013, filed by the defendant No,7 for striking out her name from the array of defendants is disposed of having become infructuos.