To avoid conflict in finding I intend to dispose of Civil Revision No. 442 of 2020 and No. 497 of 2020 through this common judgment as the subject matter in both the petitions are same.
2. Precise facts of the case are that the petitioner/plaintiff filed civil Suit No. 105 of 2019 against the respondents/defendants before Senior Civil Judge-I, Quetta (trial Court) with the prayer: "It is accordingly respectfully, prayed that a decree in favour of plaintiff and against defendants may be passed directing the defendants 1 to 4 to make payment of Rs. 3,500,000/-of construction expenditure of three T-iron type houses and one shop and make payment of Rs. 825,000/- rent of houses and shop received by defendants from last 55 months from January, 2015 till today with any other relief and cost of the proceedings throughout in the interest of justice."
3. The respondents/Defendants No. 1 to 4 filed application under Order VII Rule 11 Civil Procedure Code (CPC) for rejection of the plaint. The petitioner/plaintiff filed rejoinder and contested the application. The trial Court vide order dated 28th February, 2020 accepted the application and rejected the plaint under Order VII Rule 11 CPC. The petitioner/plaintiff approached Additional District Judge-Ill, Quetta (appellate Court) by filing appeal which was dismissed vide judgment dated 14th October, 2020.
4. The petitioner/plaintiff also filed civil Suit No. 104 of 2020 before the trial Court with the prayer: "It is accordingly respectfully prayed that a decree in favour of plaintiff and against defendants may be passed directing the defendants 1 to 8 to make payment of Rs. 7,000,000/- of construction expenditure of three RCC type houses and one shop and make payment of Rs. 1,045,000/-rent of houses and shop received by defendants from last 55 months from January, 2015 till today with any other relief and cost of the proceedings throughout in the interest of justice."
5. The respondents/Defendants No. 1 to 8 filed application under Order VII Rule 11 Civil Procedure Code (CPC) for rejection of the plaint. The petitioner/plaintiff contested the application by way of filing rejoinder. The trial Court vide order dated 28th February, 2020 accepted the application and rejected the plaint of the petitioner/plaintiff. The petitioner/plaintiff being aggrieved filed appeal before appellate Court which too was dismissed vide judgment dated 27 November, 2020.
6. Heard and perused the record with the assistance of learned counsel for the parties. The trial Court rejected both the suits on application under Order VII Rule 11 CPC on the ground of Resjudicata which were upheld by the appellate Court. It would be proper to reproduce the relevant order: "Order VII Rule 11 CPC" 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 under-valued, 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."
7. The record indicates that the respondents/defendants filed applications under Order VII Rule 11 CPC for rejection of the plaint. The trial Court without obtaining written statement and framing legal issue regarding Resjudicata rejected the plaint. The question of Resjudicata is also question of. fact which cannot be decided without adducing documentary evidence. Reliance is placed on case Aizaz Ullah Provincial Government (KPK) through Secretary Education, 2016 YLR 1873, wherein it was held: "4. There is no cavil with the proposition that every cause once tried and finally adjudicated upon by a competent forum mast be deemed to be conclusive and binding on the litigants and the parties deriving titled from them. In the present case as per version of the petitioners they were not parties to the suit where the dispute with respect to Mutation No. 764 was resolved. Again they have raised the plea that the fate of the said mutation is sub judice in this Court because of filing of revision petition. The learned lower Court in its order herein impugned has also made reference to that effect. So far as the application of the rule is concerned, it is a mixed question of law and facts and its application depends upon the proof regarding the identical nature of the subsequent matter. As is evident from the record, the learned lower Court has not provided opportunity of producing pro and contra evidence to the parties for establishing their claims for resolving the controversy in issue. The non-provision of opportunity to produce evidence on their choice to the parties is evident, by perusing the impugned orders. In the given circumstances of the case, the learned lower Court ought to have given an opportunity to the parties to produce evidence. In this respect we are fortified by a case law. Rel. "Lal Zamin alias Lalono Zargar and others v. Asfandyar Khan and 2 others" (PLD 2012 Peshawar 75) and "Khalil Ahmad and others v. Mst. Azmat Ara (widow) and others" (2014 YLR 1782 Peshawar)."
8. The trial Court rejected the plaint of the petitioner/plaintiff on application under Order VII Rule 11 CPC which was upheld by the appellate Court. In order to exercise jurisdiction under. Order VII Rule 11 CPC every averment made in the plaint has to be accepted as corrected and defence taken in the written statement cannot be looked into while considering the application for rejection of the plaint." Reference is made to the case of Shahbeona Parveen v Defence Officers, Housing Society Authority, Karachi, 1993 CLC 2523, wherein it was held: "----In order to reject a plaint under Order VII, Rule 11, C.P.C., the plaint must be shown to be barred under some law on the basis of the averments made in the plaint. Every allegation made in the plaint has to be accepted as correct while rejecting the plaint under Order VII, Rule 11 CPC The fact that the plaintiffs may not ultimately succeed in establishing the allegations in the plaint cannot be a ground for rejecting a plaint under Order VII, Rule 11, C.P.C. In the instant case the respondent had already filed written statement. It is an admitted position that the pleas of valuation and maintainability of the suit were not taken by the respondent. The trial Court has not applied its mind to this aspect of the case. The plea raised by the respondent is in the nature of a defence in the suit and cannot be looked into while considering the application under Order VII, Rule 11, C.P.C.
The pleas of maintainability of suit and valuation will be open to be raised by the respondent at the time of trial of the suit. It seems that the learned appellate Court has also not applied its mind to this aspect, of the case. In this view of the matter the impugned orders of the trial Court as well as appellate Court suffer from material irregularity or are made in excess or failure of jurisdiction as such are set aside."
Further held in case Sanaullah v Naik Muhammad, 2019 YLR 2699: "7. It is now settled that for the purpose of rejection of plaint, only the averments of the plaint and documents appended with the plaint are to be looked into and nothing else. In this context, reference may be made to the cases reported as Haji Allah Bakhsh v. Abdul Rehman and others (1995 SCMR 459) and Muhammad Saleem Ullah and others v. Additional District Judge, Gujranwala and others (PLD 2005 SC 511). Recital of the contents of the plaint, on the face of it, does disclose a cause of action and it is immaterial that the appellants would be able. to prove it or not and at preliminary stage it is not permissible to reject the plaint without affording the appellants an opportunity to prove their case. "
This Court in case Rukhsana v Asmatullah, 2018 YLR 454 held: "11. Before rejecting a plaint the Court has also to see that when the averment made therein if accepted in mode and form, do not entitle plaintiff to a relief it can reject the plaint. Provisions of Rule 11, Order VII, C.P.C. an only be invoked, if there is no room for any other approach to the case and that no triable issue is made out in the case or suit is clearly hit by any mandatory provision of law, justifying rejection of the plaint. While deciding the application like under consideration, the Courts are required to see mainly the averments of the plaint avoiding deeper examination of the contents of the written statement."
The trial Court without framing even legal issue rejected the plaint which is not permissible under the law. The order/judgment dated C 28th February, 2020, 14th October, 2020 and 27th November, 2020 passed by Senior Civil Judge-I, Quetta and Additional District Judge-II, Quetta respectively are set aside. The cases are remanded to the trial Court with direction to frame issues of law and fact, adduce documentary as well as oral evidence on part of the respondents/ defendants on the issue of law. The application filed by the respondents/defendants under Order VII Rule 11 CPC is deemed to be pending. Decide the application filed by the respondents/defendants under Order VII Rule 11 CPC strictly on merit in accordance with law without a period of four months without unnecessary adjournments. No order as to costs.