WIQAR AHMAD, J. Through the Civil Revision Petition filed under section 115 of the Code of Civil Procedure, 1908 ("C.P.C."), the petitioners have called in question the judgment and order dated 13.05.2019 passed by the learned Additional District Judge-VI Peshawar and order of the learned trial Court dated 19.02.2019.
Through the later order their plaint was rejected under Order VII, Rule 11, C.P.C. and through former their appeal against the order has been dismissed.
2. Brief but essential facts of the case are that the plaintif fs/petitioners had filed a suit against the defendants/respondents before the Court of learned Senior Civil Judge Peshawar for declaration to the effect that the plaintif fs had been the residents of Amin Colony wherein a Health Centre had been established by the Agha Khan Health Services Pakistan for providing health care to the people of the locality; that the Centre was being closed unlawfully where the defendants wants to establish a laboratory . The said action of the defendants were illegal and prayed to be declared ultra vires and ineffective upon the rights of the plaintif fs/petitioners. In prayer "Bay" perpetual injunction had been sought for restraining the defendants from making the Health Centre non- functional and in prayer "Jim" mandatory injunction had been sought for issuance of direction to the defendants for keeping the Health Centre functional. The suit was filed in representative capacity on behalf of the residents of Amin Colony by plaintif fs Nos. 1 to 3.
3. It was averred in the plaint that the Housing Society of the Amin colony had provided land for establishment of the Health Care Centre, on which the said Centre was constructed through a Purtagees NGO. It was also asserted in the plaint that the residents of Amin Colony belonged to the Ismahailee sect, who had provided land for establishment of the Health Centre, which had been transferred to the Agha Khan Health Services Pakistan by way of a gift deed.
4. The defendants Nos. 1 to 5 appeared in the suit and filed an application under Order VII, Rule 11, C.P.C. for rejection of the plaint. They submitted in their application that the said land had been gifted to Prince Karim Agha Khan unconditionally by the Donors who have never ever raised any objection on the use or construction of a new Health Centre. Plaintiffs Nos. 1 to 3 were stated to be acting un-authorizely on behalf of the Ismahailee community with whom the plaintiffs have no commonality of interest. The plaintiffs were Suni Muslims and were not members of Prince Amin Cooperative Society, nor were they privy to the contract of gift in any manner whatsoever. The said application of defendants Nos. 1 to 5 was accepted by the learned Civil Judge-1 Peshawar vide order dated 19.02.2019 and resultantly the suit of the plaintiffs/petitioners was rejected. The appeal filed against the said order of the trial Court was also dismissed by the learned appellate Court vide the impugned order dated 13.05.2019. Hence, the present revision petition.
5. The learned counsel for the plaintiffs/petitioners during the course of arguments re-asserted his stance taken in the plaint and stated that the people of Amin Colony were being deprived of health care services and the defendants were bent upon construction of a laboratory on the site in dispute, for making money.
He further asserted that the people of Amin Colony had gifted the said land for specific purpose of Health Care Centre, which land cannot be used for any other purpose.
6. The learned counsel for the contesting respondents drew the attention of this Court towards the gift deed and asserted that it has been mentioned in Para 3 of the first page of the gift deed that the same was an unconditional and irrevocable Hibba in favour of the Prince Karim Agha Khan, therefore, no condition may be read into the said gift deed which is an admitted document. 'He further asserted that none of the Donors or their representatives in interest either from ismahailee community or Prince Amin Cooperative Housing Society Peshawar had ever come and disputed the gift deed or any action on part of the defendants. He further stated that the defendants are under no legal obligation to provide health care services to the people of the locality but despite that he wanted to inform this Court that it had been decided by the Agha Khan health services to further extend the facility by undertaking re-construction so as to make the health services provided therein more extensive and all-embracing. The learned counsel also relied upon the judgment of the Hon`ble Supreme Court of Pakistan in the case of "Haji Abdul Karim and others v. Messers Florida Builder (Pvt.) Limited" reported as PLD 2012 Supreme Court 247 and in the case of "Raja Ali Shah v. Messrs Essem Hotel Limited and others" reported as 2007 SCMR 741 and unreported judgment of the august Supreme Court of Pakistan in the case of Mst. Laila Qayyum v. Fawad Qayum (C. P. No. 4876/2018).
7. Today, the case was fixed in motion, however, the learned counsel for the respondents put up appearance and filed Wakalat-Nama on behalf of respondents, which was placed on file. Arguments of both the learned counsel for the parties were heard and record of the case was perused.
8. Perusal of the record reveals that facts of the case necessary for disposal of the instant petition are admitted between the two parties on material particulars. The gift deed available on file is also an admitted document, on which both the parties rely. Para 3 of the first page of the gift deed shows that the gift deed in favour of Prince Karim Agha Kban was unconditional and irrevocable. The two Donors namely Rehmat Wali Yaqib Khan and Muhammad Arif Ali Ahmad had been registered owners of the said property, which is evident from the details given in Para 2 of the gift deed. Their legal capacity as full owners of the property has never been disputed by anyone including the petitioners. It is also an admitted fact that none of the Donors or any of their representatives in interest has ever raised any challenge to the use or re-use of the gifted property. Clause 6 of the gift deed is relevant in this respect, which is reproduced hereunder for ready reference; "That the Donor further declares that from the date of this unconditional and irrevocable Hibba of the Said Property , neither the Donor nor any of their heirs, executors, successors, administrators, assigns, and/or legal representatives, shall have any right, title, interest, claim whatsoever , in and over the Said Property , which from the date of the Hibba shall exclusively belong to the Donee who is at full liberty to utilize, embark upon any construction, develop, demolish, sell, gift, exchange, transfer , convey , pledge, whatsoever the Said Property in part or whole without any concern to the Donor ."
The aforesaid clause gives full powers to the Donee to deal with the property as full owner without any hindrance, liability or limitation. The Donee has completely stepped into the shoes of the Donors on the strength of the said deed and he cannot be prevented from use of the B property in dispute. The defendants have the full legal capacity to restructure the Health Centre existing therein and to make it more facilitating and effective for providing health care as promised by the learned counsel for the respondents.
9. The petitioners have got no locus standi and legal character or right to impugn the actions of the respondents, therefore, their suit has righty been rejected in the given circumstances. It has been held by the Hon'ble Supreme Court of Pakistan in the case of "Haji Abdul Karim and others v. Messrs Florida Builder (Pvt.) Limited" reported as PLD 2012 Supreme. Court 247 that; "It is mandatory for a Court to reject the plaint if one or more of its four clauses provided in Order VII, Rule 1 1, C.P .C. is found applicable.
In the case of "S.M. Shafi Ahmad Zaidi v. Malik Hasan Ali Khan" reported as 2002 SCMR 338 the Hon'ble Supreme Court recorded the following findings:- "Besides, averments made in the plaint other material available on record which on its own strength is legally sufficient to completely refute the claim of the plaintiff, can also be looked into for the purpose of rejection of plaint. It does not necessarily mean that other material shall be taken as conclusive proof of the facts stated therein, but it actually moderates that other material on its own intrinsic value can be considered along with the averments made in the plaint."
Similarly , in the case of "Arif Majeed and others v. Board of Governors Karachi Grammar School" reported as 2004 CLC 1029, the Hon'ble Sindh High Court held; "That the traditional view that in order to reject a plaint under Order VII, Rule 11 only the contents of the plaint were to be looked into has been modified in the subsequent judgments to the extent that an undisputed document placed on record could also be looked into for the aforesaid purpose".
In the case in hand, the gift deed relied upon by the learned Courts below as well as this Court is an admitted document. Facts and documents admitted on record may be taken into consideration by a Court while deciding an application under Order VII, Rule 11, C.P.C. If a suit is found to be not maintainable being hit by any clause of Order VII, Rule 11, C.P.C. then the Court should try to nib the evil in the bud and should go for rejection of the plaint instead of undertaking a lengthy and cumbersome inquiry of facts in the shape of a full-fledged civil trial. Such an approach would not only save time and energies of the parties but would also save precious time of a Court of law. By now, it is mandatory for the trial Court as held by the Hon'ble Supreme Court in the case of "Haji Abdul Karim and others v. Messrs Florida Builder (pvt.)Limited" as cited above, to reject a plaint when it is hit by any of the four clauses mentioned in Order VII, Rule 11, C.P.C.
10. For the reasons mentioned above, the learned trial Court has rightly rejected the plaint under Order VII, Rule 11, C.P.C. Appeal filed against the order of the trial Court was also dismissed by the learned appellate Court in accordance with law. No illegality or irregularity could be found in the orders of both the Courts below. The revision petition in hand is therefore dismissed.