ORDER ON C.M.A. No,127 of 2014 ' NADEEM AKHTAR, J.---This application has been filed by defendant No, 2 under Order VII Rule 1 i, C.P.C. seeking rejection of the plaint on the ground that it does not disclose any cause of action against him.
2. This Suit for recovery of money has been filed by the plaintiff against two defendants, praying that a decree in the sum of Rs,28,000,000.00 be passed against them. His case, as averred in the plaint, is that a Memorandum of Understanding (MOU) dated 07.10.2003 was executed by defendants 1 and 2 whereby defendant No,2 agreed to sell to defendant No,1 property known as 'Hotel Metropole', bearing Plot Nos.21 and 23/1, measuring 13,111 sq. yds., situated at Club Road, Main Abdullah Haroon Road, Survey Sheet No,CL-5, Civil Lines, Karachi, in consideration of Rs,780,000,000.00. As per the terms and conditions of MOU, an amount of Rs,10,000,000.00 was paid by defendant No,1 to defendant No,2. The plaintiff, who is a marketing consultant, was introduced to defendant No,1, who offered to him a share in the said property. The said offer of defendant No,1 was accepted by him and he invested Rs,24,000,000.00 by paying the said amount to defendant No,1 through two cheques, which was acknowledged by defendant No,1. As a result of some dispute between defendants 1 and 2, a Suit was filed before this Court against defendant No,2 by defendant No,1 through his attorney / the present plaintiff, for which the plaintiff paid an amount of Rs,1,000,000.00 as professional fee to the advocate ; and an appeal against defendant No,2 was also filed before this Court by him on behalf of defendant No,
1. He paid a further amount of Rs,4,400,000.00 which was acknowledged by defendant No,
1. When defendant No,2 was contacted by him, he said that defendant No,1 was not in contact with him. In this background, this Suit for recovery of Rs,28,000,000.00 has be filed by the plaintiff against both the defendants.
3. As per the diary dated 08.05.2015 of the Additional Registrar (O.S.), notice of this application filed by defendant No,2 for rejection of the plaint issued to the plaintiff had returned duly served.
Thereafter, this application came up for hearing on all subsequent dates of hearing, but the plaintiff and his learned counsel remained absent on all such dates. On 30.11.2015 when this application was listed for hearing, the matter was called twice, but on both occasions they remained absent without any intimation although the name of the learned counsel had appeared in the cause list. Record shows that the plaintiff did not file counter affidavit or objections to oppose this application. In view of the above and also as the application was pending since December 2014, the learned counsel for defendant No,2 was heard.
4. He contended that the MOU was between defendants 1 and 2 ; there was/is no privity of contract between the plaintiff and defendant No, 2; no amount whatsoever was received by defendant No,2 from the plaintiff ; the alleged breach of the so-called arrangement between the plaintiff and defendant No,1 was committed by defendant No,1 ; and therefore, defendant No,2 cannot be held liable for the alleged breach. He submitted that no breach or cause of action has been alleged in the plaint against defendant No,2. It was urged that the Suit is not maintainable against defendant No,2, and the plaint is liable to be rejected as it does not disclose any cause of action against defendant No,2.
5. In order to determine whether the plaint is liable to be rejected or not, the contents of the plaint, particularly the averments and allegations made therein by the plaintiff, were carefully examined by me. The plaintiff himself has stated that MOU for sale of the above mentioned property was between defendants 1 and 2, wherein defendant No,2 was the seller and defendant No,1 was the buyer of the said property. He has also stated that he was introduced to defendant No,1 and it was defendant No,1 who had offered to him a share in the said deal. All the payments towards investment alleged by him were admittedly made by him to defendant No,1, and it was defendant No,1 who had acknowledged all such payments. It is not the case of the plaintiff that at any stage he was a party to the sale transaction between defendants 1 and 2, or defendant No,2 was a party to the alleged understanding between him and defendant No,1. It is also not his case that defendant No,2 received any amount from him or acknowledged receipt thereof in his favour. The averments made in the plaint show that the alleged understanding between the plaintiff and defendant No,1 was a separate and distinct transaction having no nexus with the MOU between defendants 1 and
2. Therefore, defendant No,2 cannot be held liable for the breach allegedly committed by defendant No,1 in relation to the alleged understanding between the plaintiff and defendant No,1. It is significant to note that the plaintiff has not made any assertion or leveled any allegation against defendant No,2 that may give rise to a cause of action in his favour against defendant No,2.
6. In view of the above admitted position, I have no hesitation in holding that the plaint does not disclose any cause of action against defendant No,2. Rule 11 of Order VII, C.P.C. provides that the plaint "shall" be rejected in any of the four eventualities mentioned therein, including where it does not disclose a cause of action. In Raja Ali Shan v. Messrs Essem Hotel Limited and others, 2007 SCM R 741, the Hon'ble Supreme Court was pleased to hold that it is the duty of the Court to reject the A plaint if, on a perusal thereof, it appears that the Suit is incompetent; and the Court is not only empowered, but under an obligation to reject the plaint even without any application from a party, if the same is hit by any of the clauses mentioned under Rule 11 of Order VII, C.P.C. In Pakistan Agricultural Storage and Services Corporation Ltd. v. Mian Abdul Latif and others, PLD 2008 Supreme Court 371, it was held by the Hon'ble Supreme Court that the object of Rule 11 of Order VII, C.P.C. is primarily to save the parties from rigors of frivolous litigation at the very inception of the proceedings. In the case of Abdul Nasir and another v. Haji Saeed Akbar, 2010 SCM R 1770, the Hon'ble Supreme Court was pleased to maintain the order of rejection of the plaint, by holding that no cause of action had arisen in favour of the plaintiff when the Suit was filed.
7. I have already held that the plaint does not disclose any cause of action against defendant No,2.
Therefore, the plaint against him is liable to be rejected. Foregoing are the reasons of the short order announced by me on 30.11.2015, whereby this application filed by defendant No,2 was allowed and the plaint against him was rejected with no order as to costs.