CH. MUHAMMAD IBRAHIM ZIA, CJ. -- The captioned appeal by leave of the Court has been filed against the judgment and decree of the High Court dated 21.11.2017, whereby , the appeal filed by the appellants, herein, has been dismissed.
2. The brief facts of the case are that the appellants, herein, filed a suit for declaration in the Court of Civil Judge, Sehnsa in respect of the land comprising khewat No, 10, khata Nos, 64 to 72, measuring 12 kanals (according to old scale) and 7 kanals , 11 marlas (according to new scale). The Trial Court rejected the plaint under Order VII, Rule 11, C.P.C., vide its judgment and decree dated 31.03.2012. feeling dissatisfied, the appellants, herein, filed an appeal in the Court of Additional District Judge, Sehnsa which was also dismissed vide judgment and decree dated 31.10.2012 and the second appeal before the High Court met the same fate vide impugned judgment and decree dated 21.1 1.2017.
Ch. Muhammad Mumtaz, Advocate, the learned counsel for the appellants after narration of necessary facts submitted that all the Courts below have fell in error of law and facts while rejecting the plaint on the sole grounds of cause of action and limitation. While referring to the pleading of the parties, he submitted that appellant No, 1 has claimed his legal share in the inherita nce. The plaintif fs-appellants filed declaratory suit. In paragraph No, 2 of the plaint, it has been clearly averred that the defendants with the collusion of the officials of the settlement department, while practicing fraud, has got incorporated wrong entries in the revenue record and on gaining knowledge of this fraudulent act, the defendant's father filed an application before Assistant Collector for possession. They filed a suit in the light of the stated facts, as they are co-owners of the property and question of limitation, as alleged, is also of factual nature requiring recording of evidence but the Courts below without proper application of judicial mind, adhering to the statutory provision, has rejected the plaint under provision of Order VII, Rule 11, C.P.C. while declaring the plaint without cause of action and beyond limita tion. Whereas, according to the averments of the plaint, both the propositions appear to be of factual nature and cannot be determined without recording of evidence. He further argued that the reason advanced for rejection of plaint in the impugned judgment of the Trial Court clearly speaks that the learned Trial Court has placed reliance on some documents and the statement of one of the plaintif fs which has not been brought on record of this case according to law. For the purpose of rejection of plaint, the provisions of Order VII, Rule 11, C.P.C. are very much clear . The basic consideration is of contents of the plaint. This aspect has not been properly considered, hence, the judgments are against law .
4. Conversely , Hafiz Arshad Mehmood, Advocate, the learned counsel for the respondents forcefully defended the impugned judgment and submitted that all the Courts below have unanimously decided the matter . As in the light of the previous litigation, the matter has already been finally decided through the judgments of Courts of competent jurisdiction, thus, the principle of res-judicata is fully applicable. However , it is also proved from the record that despite having knowledge, the suit was not filed within prescribed limitation. In this state of affairs, no illegality has been committed by the Courts below . Hence, the appeal is not maintainable. He further argued that, as already seven years' time has been consumed in litigation, if at all, the appeal has any substance, then the Court should be directed for expeditious disposal of the suit.
5. We have considered the arguments of the learned counsel for the parties and carefully examined the record made available. Admittedly , the plaint has been rejected under the provisions of Order VII, Rule 11, C.P.C. which read as follows:-- "11. Rejection of plaint .-- The plaint shall be rejected in the following cases:---
(a) Where it does not disclose a cause of action.
(b) Where the relief claimed is undervalued, and the 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 ."
6. The perusal of statutory provisions reproduced above clearly reveals that for attracting the provisions, the main consideration is the contents of the plaint. If the plaint does not disclose any cause of action or it appears from the statement of the averments of the plaint that the suit is barred by law then only in that case, the plaint can be rejected. Our view finds support from the case reported as Raja Gul Nawaz Khan v. Kamran & other s [2016 SCR 338], wherein it was held as under-- "As the clause (a) of this rule clearly speaks that where the plaint does not disclose the cause of action it can be rejected. Thus, for rejection of the plaint it is the statutory requirement that the Court should have proper appreciation of the contents of the plaint. While applying these statutory provisions, there is a chain of authorities of the Superior Courts that for rejection of the plaint under Rule 11, Order VII of C.P.C. the main consideration is contents of the plaint. After application of the judicial mind and due appreciation of the plaint, if it does not disclose any cause of action the same can be rejected. In this regard reliance can be placed on the judgment of this Court reported as Muhammad Younas Arvi v. Muhammad Aslam [2012 SCR 135], the relevant portion of which is reproduced as under-- 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 plaintif fs have no cause of action or the suit is barred by law .'
This principle of law has been consistently enunciated by this Court in number of judgments, the latest of which are the cases titled M Abdul Rehman Abbasi and others v. Abdul Waheed & others (Civil Appeal No, 223 of 2013, decided on 15.10.2014) and Syed Hassan Gillani and others v. Khawaja Ghulam Nabi & others (Civil Appeal No, 35 of 2014, decided on 12.01.2015)."
7. Whereas, in this ease, the careful examination of the contents of the plaint reveals that the plaintif fs regarding the point of limitation has clearly averred that the entries in the settlement record has been incorporated by practicing fraud with the collusion of the contesting defendants and the officials of the settlement department.
According to this averment, when the fraud is alleged, then in such-like cases, the provision of Section 18 of the Limitation Act, 1908 are attracted and it becomes to be a factual proposition. Same like, the averments made in respect of the cause of action in the plaint also require determination on the basis of some evidence. The learned Trial Court for rejection of plaint, has placed reliance on some orders of the Revenue Courts and statements recorded therein which are not relied upon in the plaint. Neither these have been tendered in evidence nor made part of record according to law. The material which is part of the record of the case can only be considered according to law. In this context, we may refer the case reported as Shafqat Hayyat & others v. M Razzaq & another [2016 SCR 1334] and Shamim Akhtar v . Mir M Hussain & others [2018 SCR 532].
8. In view of the above-referred principle of law and keeping in view the statutory provision of Order VII, Rule 11, C.P.C., the Courts below have not properly appreciated the statutory provision in this case, hence, fell in error of law while rejecting the plaint. Consequently , while accepting this appeal, setting aside the impugned judgment, the plaint is returned to the Trial Court for conducting the proceedings and thereafter , disposing of the suit according to law.
9. The submission of the learned counsel for the respondents that the matter requires expeditious disposal, is weighty . The Trial Court is directed to ensure the final disposal of the suit within a period of one year from the Communication of this order .
With these observations this appeal stands disposed of.