Through instant appeal, order dated 01.07.2015 passed by learned trial Court/J udge Banking Court-II, Multan, whereby the application under Order VII, Rule 11, C.P.C. filed by respondent-bank was partly allowed, has been assailed.
2. Brief facts of the case are that appellants filed a suit for recovery of damages and rendition of account, recovery of over charge, mark-up and other expenses, contending therein that appellant-firm opened bank account with respondent-bank and availed Trust Receipt Facility ("T.R. Facility ") of Rs.3.00 Million in year 2006. With the permission of the bank, the stock of rice was sold to five persons, who issued five cheques in favour of appellants for payment of sale price. The appellants deposited the cheques with respondent-bank, but these cheques were dishonoured. Statedly on accounts of acts of omission and commission of respondent-bank, appellants suffered damages. On 19.12.2013, application for leave to defend the suit, filed by respondent-bank, was allowed issues were framed and evidence of the appellants was called for. Thereafter , respondent-bank moved an application under Order VII, Rule 11, C.P.C., for rejection of plaint pleading that the suit is in contravention and violation of the lease agreement, and suit for damages for alleged tortuous act is not maintainable before learned Banking Court under the Financial Institutions (Recovery of Finances) Ordinance, 2001. The application was contested by appellants. After hearing the arguments, learned trial Court / Judge Banking Court-II, Multan, allowed the Application in piecemeal and suit to the extent of recovery of damages was held to be not maintainable and appellants were directed to file amended plaint excluding the claim / relief of damages, vide order dated 01-7-2015, which has been sought to be modified through the instant appeal.
3. Learned counsel for appellants submits that damages were directly relating to the breach of trust with regard to T.R. Facility / lease agreement and the suit for recovery of such damages is maintainable within the contemplation of provisions of Section 9 of the FIO. He adds that plaint cannot be rejected in piecemeal and learned trial Court has passed impugned order in total oblivion of the law applicable to the rejection of plaint. In the end, he submits that impugned order is not sustainable in the eye of law , in circumstances.
4. On the other hand, learned counsel for respondents defends the impugned order and submits that appellants have failed to point out any illegality or legal infirmity in the impugned order , thus the same is liable to be upheld under the law .
5. Arguments heard. Available record perused.
6. The relevant part of impugned order is reproduced as under:- "6. Learned counsel for respondent / plaintif f has frankly conceded that claim of plaintif f firm to the extent of damages is not arising from "Financial Liability" but due to negligence of bank staff for non-collection of amounts of cheque in time and non-return of cheques for legal action by the plaintif f firm. In view of this legal proposition, fully supported by case law referred by both the parties, the suit to the extent of recovery of damages is not maintainable, as it is not in respect of any obligation under Financial Institutions (Recovery of Finances) Ordinance, 2001 and to this extent it is mere based on tortuous act / negligence of Bank Manager and as such not falling within section 9 of ibid Ordinance. Such claim has been excluded from the jurisdiction of Banking Court, hence application under Order VII, Rule 11, C.P.C. is partly allowed and it is ordered that the suit to the extent of recovery of damages is not maintainable. Legal remedy , if so advised, can be availed before proper forum. Plaintif f is directed to file amended plaint excluding the claim / relief of damages. This petition be annexed with main file."
7. Perusal of above reproduced relevant part of impugned order shows that learned trial Court has noted that the claim to the extent of damages was based on tortuous act / negligence of bank manager, as, such did not fall within the contemplation of Section 9 of the FIO, therefore, application under Order VII, Rule 11, C.P.C. was partly allowed and plaint to the extent of recovery of damages was held to be not maintainable.
8. Examination of record reveals that alleged claim of damages was prima facie arising from the breach of agreement between the parties, but this aspect of the case was not properly understood and appreciated by learned Judge Banking Court while passing the impugned order , thus the same is not sustainable in the eye of law .
9. It is well settled that plaint could not be rejected in piecemeal and by means of its rejection, appellants should not be entitled to maintain any of the relief sought therein. Even otherwise, plaint could only be rejected if all the reliefs claimed by appellants are barred under the law. Even if one of the prayers is maintainable, plaint cannot be rejected under Order VII, Rule 11, C.P.C. Reliance in this regard can be placed upon Najamuddin Zia and another v. Mst. Asma Qamar and others (2013 CLC 1263), Mst.. Nishat Ishaq v. Amjad Khan and 2 others (2014 CLC 71), Shahzad and another v. IVth Additional District Judge, Karachi (East) and 5 others (PLD 2016 Sindh 26 ) and Syed Shabi-ul-Hassan Khusro v . Asad Mustafa and 6 others (2016 MLD 266 ).
10. Learned trial Court was equipped with the powers to frame issues on the pleadings raised by the parties and plaint could be disposed of partially or in toto by deciding the legal issues. In the present case, on appreciation of the averments of the plaint and documents annexed with it, learned trial Court did not find that appellants had no cause of action, or the suit was barred by law. Appellants had claimed multiple reliefs in their prayer clause. If any one of the prayer could not be granted, it would not mean that the suit would be treated barred for all other claimed reliefs. Under the provisions of Order VII Rule 11, C.P.C., plaint could only be reject ed if all the reliefs claimed, were barred under the law. If some of the reliefs claimed were available, the plaint could not be rejected, because under the codal provisions, there was no concept of piecemeal rejection of the plaint> Provision of Order VII, Rule 11, C.P.C., was procedural in nature and power under said provision had to be exercised only in exceptional circumstances. Such power should be exercised where Court would come to the conclusion that even if all the allegations were proved, the appellants would not be entitled to any relief. Court had only to see as to whether any cause of action had been disclosed and it was immaterial to see whether appellants would be able to prove the case or not, which could not be decided without framing of issues and recording of evidence. Reliance in this regard can be placed upon Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi (PLD 1999 Supreme Court 1), Muhammad Younis Arvi v. Muhammad Aslam and 16 others (2012 CLC 1445 ), Izhar Muhammad v.
Messrs Memon Housing Services through Partner and another (2009 MLD 1378 ), Meer Hassan alias Ameer Hassan v. Federation of Pakistan throu gh Secretary Port and Shipping, Islam abad and another (2009 YLR 1827 ), Sabir Hussain v. Board of Trustees of the Port of Karachi and 5 others (2010 YLR 3313 ), Syeda Adrish and another v. Syed Anwar-ul-Haq and 2 others (PLD 2011 Lahore 569), Amir Karim v. Muhammad Asif and 10 others (2014 MLD 1537 ) and Muhammad Ali Shaikh v. Sui Southern Gas Company Ltd., through Managing Director and 3 others (2014 YLR 444 ).
11 Resultantly , instant appeal is hereby allowed. The impugned order is set aside and matter is remitted to learned Judge Banking Court, where application under Order VII, Rule 11, C.P.C. shall be deemed to be pending and learned trial Court is directed to decide the same afresh, strictly in accordance with law, after providing opportunity of hearing to the parties, within a period of 30-days from the date of receipt of certified copy of this order , keeping in view the observations made hereinabove.