RASAAL HASAN SYED, J.--- The petitioner in this Constitutional petition has impugned order dated 25.2.2019 of the learned Addl. District Judge, Sargodha whereby the revision petition of the respondents against order dated 12.7.2018 was accepted, the order was set aside and in consequence the plaint was ordered to be rejected under Order VII, Rule 11, C.P.C.
2. Petitioner filed a suit for declaration to the effect that he was owner-in-possession of the property subject matter of suit, having purchased the same through a registered sale deed and that the name of his wife Mst.
Musarrat Parveen was inserted as a Benamidar and that the entire deal was settled by petitioner, payment of consideration was made by him and that the petitioner continues to be in possession of the property and as such the respondent was not entitled to interfere in the title and possession of property. Written statement was filed by the respondents. An application under Order VII, Rule 11, C.P.C. was also moved on 25.1.2018 seeking rejection of plaint on the plea that the suit was filed with mala fide intent to cause unnecessary harassment and that it was without any basis or foundation and also that it was time barred and that the petitioner was bound to pay the court fee on the market value of property which having not been paid, the plaint was liable to be rejected under Order VII, Rule 11, C.P.C. The application was contested. Vide order dated 12.7.2018 the learned Civil Judge dismissed the application observing that the question of limitation being a, mixed question of law and fact which will require evidence for its determination and that the deficiency of court-fee, if any determined later could be made up with the order of the court. The application was accordingly dismissed. In revision, the learned Addl. District Judge set aside the order by banking upon the facts and document beyond pleadings. The order passed in revision is now under challenge it the instant writ petition.
3. Learned counsel for the petitioner submits that the provisions of Order VII, Rule 11, C.P.C. were not attracted in this case; the question of limitation being mixed question of law and facts could only be resolved after evidence; the plaint could not be rejected by referring the documents not forming part of the plaint and that the view taken by the revisional court was in conflict with the consistent rule laid down by the superior courts.
Contrariwise learned counsel for the petitioner has supported the verdict of the court below as being fully in accordance with law and record and, therefore, liable to be sustained.
4. Deeper consideration and examination of the documents available in the file of this petition reveals that the suit of the petitioner was for declaration wherein his claim was that the property was purchased in the name of his wife Mst. Musarrat Parveen, as a Benamidar, the transaction was settled by the petitioner, while consideration was also paid by him, the petitioner was in possession of the property as also the title documents and that the status of Mst. Musarrat Parveen was that of a Benamidar. In their application under Order VII, Rule 11, C.P.C., the only ground raised for the rejection of plaint was that the suit filed was without foundation and was false which was filed to cause unnecessary harassment; the suit was barred by time and that the value of the property was more than rupees one Crore, and that the plaint on account of non-affixation of court-fee according to value of the property was liable to be rejected. The application was obviously opposed on the ground, that the suit was not mala fide, the petitioner in good faith was claiming his rights of ownership in the property and determination of the status of his wife as a Benamidar and that the suit was within time as the cause of action accrued seven days before the filing of the suit and that the suit was properly valued for court- fee and jurisdiction. The learned Civil Judge, on considering the arguments of both sides, concluded that the plaint could not be rejected, the plea of limitation could be decided after evidence and that the question of court- fee, will also be determined after evidence and if the deficiency of court-fee if any is found the same could be ordered to be made up. The application was accordingly rejected. The learned Addl. District Judge, strange enough, made reference to a different set of circumstances which did not form part of the application under Order VII, Rule 11, C.P.C. A reference was made to a written statement allegedly filed in a different suit and from there it was assumed as if the petitioner was estopped to question the title of respondents predecessor, little appreciating that such plea was never raised in the application under Order VII, Rule 11, C.P.C., nor urged at the time of arguments nor was subject-matter of discussion in the order of the learned Civil Judge and that for the first time it was raised in revision which possibly could not be taken in consideration to reject the plaint.
5. The provisions of Order VII, Rule 11, C.P.C. have been interpreted in number of cases and the consistent rule is that for the purpose of rejection of plaint the court need to confine to the contents thereof for the purpose of determining if it discloses a cause of action, not barred by law and that it was improperly valued or insufficiently stamped and on being called upon to make up the deficiency of definite amount of court-fee the deficiency is not made up. In the present case, the petitioner had categorically claimed in the plaint that he was the real owner in possession, the property was purchased by him, the consideration was paid by him and that he was in possession of the title documents as also the property while the status of Mst. Musarrat Parveen was that of a Benamidar. It was also mentioned that the denial of his status as owner was made seven days before the filing of suit and that the petitioner was entitled to a decree for declaration. It is a rule that while considering the application under Order VII, Rule 11, C.P.C. the facts as asserted in the plaint need to be accepted as correct and if there is some dispute in regard to their correctness, the same could be resolved after issues and evidence, nevertheless, the plaint cannot be rejected simply because the respondent denies the facts. It is also settled law that while rejecting the plaint the court has to confine to the contents thereof and any extraneous material or facts which was alleged by the other party or introduced in his written statement, could not be based for rejecting the plaint. It is strange that the facts as were assumed by the revisional court for rejection of plaint and the documents relied upon in this regard did not form part of the application under Order VII, Rule 11, C.P.C., nor the trial court had the occasion to express its view in respect thereof. Even otherwise this was the factual controversy which could not be decided without evidence. The learned Addl. District Judge, therefore, acted illegally and without jurisdiction while referring to the material which did not form part of the plaint and applying the rule of estoppel on the basis thereof prejudicial to the interest of petitioner.
6. In so far as the objection of limitation the same being a mixed question of law and facts, could be determined after proper issue and evidence. Reference can be made to the rule laid by the honourable Supreme Court in "Irshad Ali v. Sajjad Ali and 4 others" (PLD 1995 SC 629). Reference may also be made in this regard to "Haji Abdul Sattar and others v. Farooq Inayat and others" (2013 SCMR 1493) where it was observed by the honorable Apex Court to the effect that the issue of limitation being a mixed question of law and facts could not be determined without recording of evidence. In view of the settled rule the learned Civil Judge rightly dismissed the application seeking rejection of the plaint on the plea of limitation and correctly observed that the matter could be determined after evidence.
7. As regards the objection of court fee, it may be observed that in terms of Order VII, Rule 11, C.P.C. the court has to first determine the amount as valuation of suit and if there is any issue, to determine if there was any deficiency and if so to what extent and to give a directive to the plaintiff to make it up within time so specified in the order. The rejection of the plaint can only be made if on determination of the correct valuation as also the amount of deficiency and of issuance of direction to make it up, the petitioner if fails to do the needful the plaint could be rejected though the court still has the power to extend time under section 149, C.P.C. if sufficient reasons are put forth. Reference can be made to the rule in "Mst. Parveen v. Mst. Jamsheda Begum and others" (PLD 1983 SC 227) and "Siddique Khan and 2 others v. Abdul Shakur Khan and another" (PLD 1984 SC 289). In view of the said rules, the outright rejection of plaint could not be claimed in the facts and circumstances of the present case. The learned Addl. District Judge in oblivion to the settled principles of law, proceeded to allow the revision petition notwithstanding the fact that the order passed by the learned trial court was well within its jurisdiction, the same was in accordance with law and there was no illegality or irregularity therein and, therefore, interference in revisional jurisdiction was not called for. The reasons recorded in the impugned order for intervention in the order of the Civil Judge, being legally unsustainable and against settled law, cannot be countenanced.
8. In view of the reasons hereinabove, it is observed that the impugned order suffers from serious error of law and jurisdiction and is unsustainable.The writ petition is therefore allowed. The impugned order dated 25.2.2019 of the learned Addl. District Judge is set aside, the order of learned Civil Judge, dated 12.7.2018 is restored; in result, the application under Order VII, Rule 11, C.P.C. shall be deemed to have been rejected.