Rasaal Hasan Syed, J. This judgment will dispose of civil revision petition that calls into question order dated 25.1.2012 of learned Civil Judge, Lahore whereby an application under Order VII, Rule 11, C.P.C. in a suit for recovery of damages, was dismissed.
2. Material facts for the decision of this revision petition are that respondent No. 1 filed a suit for recovery of damages against the petitioners inter alia alleging that the petitioners initiated frivolous, fictitious and vexatious litigation and also malicious prosecution to defame respondent No. 1 and to cause harassment and mental anguish; and that respondent No.1 had to engage different lawyers who were paid heavy professional fees, etc. to defend the false and baseless litigation. It was alleged that frivolous litigation ended in favour of the respondent No. 1 who claimed general damages as also special damages detailed in para 8 of the plaint.
3. The petitioners instead of filing written statement opted to file an application under Order VII, Rule 11, C.P.C. for the rejection of the plaint asserting therein that the suit filed by respondent No. 1 was barred by law of limitation as well as other relevant laws and for that reason the plaint was liable to be rejected . The application was contested by respondent No. 1, who among other assertions, pleaded that the application was misconceived; the suit was within time from the date of final termination of litigation; and that the application was moved with ulterior motives.
4. The learned Civil Judge vide order dated 25.1.2012 rejected the application under Order VII, Rule 11, C.P.C. and directed filing of written statement. Instead of filing written statement the petitioners challenged the order in the present revision petition, which was heard on 27.2.2012 when an order for issuance of pre-admission notice was passed and in the meanwhile the proceedings in the trial court were stayed.
5. Learned counsel for the petitioners argued that the learned trial court committed a serious error of law in ignoring that the concept of malicious prosecution did not apply to civil litigation; the review petition was dismissed by the August Supreme Court on merits without making any observation of there being probable cause and therefore the filing of suit for damages was unwarranted; and further that the suit was barred by time as it was not filed within one year as provided by Article 23 of First Schedule of Limitation Act, 1908.
6. Responding to the arguments learned counsel for respondent No. 1 submitted that the suit was within limitation, the objection of limitation was wholly misconceived, the plaint did disclose a cause of action, a suit for damages could legally be filed on account of involvement in malicious civil litigation, Article 42 of the First Schedule of Limitation Act, 1908 was attracted that provided limitation of three years and that the factual controversy could only be resolved after the issues and evidence; and therefore the application under Order VII, Rule 1 1, C.P .C. at this stage was premature which was rightly rejected by the learned trial court.
7. Undeniably under Order VII, Rule 11, C.P.C. the plaint can only be rejected if the statement therein does not disclose a cause of action or the suit is improperly valued or insufficiently stamped or that the suit is barred by law.
It is settled rule that while considering the applicability of this provision, one has to confine to the averments in the plaint which need to be accepted as a gospel truth unless proved otherwise through evidence; and if bare reading of the statement in the plaint discloses cause of action it cannot possibly be rejected under clause (a) of Order VII, Rule 11, C.P.C.
8. The argument that the provision of section 35-A of C.P.C. bars the filing of a suit for damages in civil litigation on the plea of being malicious or frivolous, is legally untenable. This aspect of the matter was earlier dealt with in the case of "Muhammad Akram v. Mst. Farman Bi" (PLD 1989 Lah. 200) wherein it was observed that the provisions of section 35-A, C.P.C. did not bar the maintainability of a suit for damages due to malicious prosecution arising out of civil action . The judgment in the said case was also endorsed by the August Supreme Court in "Muhammad Akram v. Mst. Farman Bi " (PLD 1990 SC 28 ) wherein it was observed that: "... It would be seen that Section 35 essential ly deals with the actual costs of the 'suit' while under section 35-A they are 'compensatory'. Their nature is well summarized by Mr. Amer Raza A. Khan in his well known commentary on CPC that: costs awardable by a court can either be compensatory costs (S. 35-A) or actual costs (S. 35). Actual costs are awarded by a Court in order to secure the expenses undergone by a successful litigant in the assertion of his rights before a Court. They are not awarded by way of penalty or punishment against the unsuccessful party nor are they to be made a source of profit for the successful party . They are also not awarded by way of compensation, but by its very nature, actual costs are awarded to reimburse a successful party for the expenses incurred by him. And further that even under section 35-A "Costs are compensatory and are not awarded as penalty against an unsuccessful party". All this shows that though the costs awarded under section 35-A CPC can be taken into account when awarding "damages" , they are not even by statutory dispensation, the same as the "damages ". The conditions for application of section 35-A are different and much less than the elements set out earlier for an action for malicious prosecution. The actual costs of the suit under section 35, C.P.C. are at a much lower level when considered in this behalf. Besides this, a combined reading of sub section (4) of section 35-A and sub section (2) of section 95 which deal with the effect of the orders under these provisions on actions for "damages", are clearly indicative of the legislative intent; that unless a case is fully covered by section 95(2), the award of costs, under section 35 and 35-A instead of barring a suit for damages supports the right for such an action..."
In view of the settled rule the objection taken as to the maintainability of the suit is of no legal substance.
9. Of course respondent No.1 with a view to succeed in action for damages on the plea of malicious prosecution will have to establish that he was prosecuted by the petitioners, the prosecution ended in his favour , the petitioners acted without reasonable and probable cause, the petitioners were actuated by malice, the proceedings had interfered with the respondent' s liberty , and that it affected his reputation and he suffered damages on account of the said prosecution.
10. In this case respondent No.1 has narrated the litigation in which he was involved directly or indirectly . The particulars of the litigation have been given in detail in the plaint with the allega tions that the proceedings were vexatious or frivolous, the prosecution was malicious, the litigation caused harassment and resulted in mental anguish, defamation and suffering of financial losses due to heavy payments as professional fees to lawyers engaged to defend the litigation.
11. Respondent No.1 with a view to seek relief will have to prove through evidence all the assertions and also to prove that the litigation was not only malic ious or frivolous but the same resulted in damages on account of mental torture, suf fering of financial loss on account of professional fee to lawyers, etc.
12. Whether or not the earlier litigation/prosecution was frivolous or based on reasonable and probable cause will have to be determined by the court on the minute scrutiny of evidence which the parties are yet to produce. Any observations as to the merits of the case at this stage will certainly prejudice the cause of either side which should be avoided. It is for this reason that Order VII, Rule 11, C.P.C. contemplates that only statements in the plaint are to be looked into for limited purposes which need to be treated as true and if on perusal thereof the plaint does not disclose a cause of action, then the plain t can be rejected. The examination of the plaint does disclose that the respondent No.1 has raised serious allegations against the petitioners, and it has been averred that respondent No.1 was involved in number of civil and criminal litigation of fictitious and malicious character, which prosecution was deliberate, intentional and malicious as also without probable cause and in view thereof, it cannot be assumed that on the face of it plaint did not disclose any cause of action or call for an outright order of rejection.
13. As regards the objection of limitation, the question whether the suit was filed within the permissible period or not, cannot be answered at this stage, reason being, that the respondent No.1' s case is that they brought the action within the permissible period from the date of final termination of litigation while the petitioner 's stance is that it was not so instituted. To resolve this controversy , it will be necessary to examine the contents of the pleadings of all cases and the decisions rendered therein. For the purposes of determination as and when and what point of time the litigation finally terminated and whether from such date the suit is within time, of course, all the pleadings, the judgments therein, will have to be formally brought on record in evidence in accordance with the provisions of Qanoon-e-Shahadat Order 1984 and also following the procedure prescribed by Order XIII, C.P .C.
14. Any observation in regard to those matters without making them a part of the evidence, will be contrary to the rule of law. The resolution of controversy being dependent on factual investigation and consideration of the oral as well as documentary evidence, the proper course appears to be that an issue be framed, parties be allowed to tender the respective documents in evidence and thereafter to determine the issue. It is settled rule that the limitation is a mixed question of law and fact. In "Irshad Ali v Sajjad Ali and 4 others" (PLD 1995 SC 629) the August Supreme Court observed as under: "...Sound decision of the question of limitation depended on a well-considered decision regarding dissolution of partnership and since the parties were not allowed an opportunity to lead evidence with regard to the question of dissolution by framing a specific issue in this behalf, the case was not properly tried. It is pertinent to mentioned here that therefore, deserved to be remanded for fresh decision ..."
In "Tariq Mehmood Chaudhry Kamboh v. Najam Un Din" (1999 SCMR 2396 ), it was observed by the August Supreme Court as follows: "...After hearing the learned counsel for the petitioner and the respondents who appeared in person, we are of the view that the learned Civil Judge had already framed issue No.2 to the effect that the suit was within time and besides that the learned Civil Judge also gave finding that the question of limitation in the case was a mixed question of law and fact and thus the issue can only be resolved after recording of evidence touching the controversy . In our view, no error had been committed either by the learned Civil Judge or the High Court while arriving at the aforesaid finding and thus the learned Civil Judge had rightly rejected the application under Order VII rule 1 1 CPC and the High Court also correctly upheld the said order"
In "Jewan and 7 others v. Federation of Pakistan through Secretary Revenue Islamabad and 2 others " (1994 SCMR 826 ) while considering the scope of Order VII, Rule 1 1, C.P .C. the August Supreme Court observed that: "Until such time the documents relating to the earlier proceedings were brought on record in accordance with law and the matter was thoroughly examined with regard to the controversy in the two proceedings, it was not possible for the courts below to reach the conclusio n that the present suit involves the same controversy which was decided in the earlier proceedings ..."
It was further observed that: "However , the courts while rejecting a plaint under Order VII rule 11 CPC on the ground that the plaintif f failed to disclose any cause of action or the suit is barred under some provision of law, to the extent of examination of relevant facts by the court to reach these conclusions has to be on the basis of the averments made in the plaint ..."
15. In the present case too, the question of limitation cannot be decided unless all the previous pleadings of litigation and the judgments/orders rendered therein are formally tendered in evidence. To enable the court to determine as to whether the litigation was frivolous or malicious and whether the same was without probable cause and also as to when and on what date the litigation, which according to respondent was a cause of harassment, mental torture and financial losses, it will be necessary to receive evidence as discussed supra.
This of course can be done by framing an issue and inviting the parties to produce evidence in support of their respective pleas and defenses. Any decision or determination on the question of limitation without adhering to the course herein above will be only based on the assertions in defense raised by defendants/petitioners which possibly cannot at this stage be deemed conclusive. The application for rejection of the plaint under Rule 11 of Order VII, C.P.C. was therefore premature and unwarranted at the stage it was filed and the learned Civil Judge rightly dismissed the same.
16. In view of the reasons supra, this revision is without any substance or merit which is accordingly dismissed.
Parties to bear their own costs.