Instant High Court Appeal has been filed against an order dated 06.04.2022 passed by the learned Single Judge in Suit No.175/2020, whereby, C.M.A. No.2572/2020 filed by the respondents under Order VII, Rule 11, C.P.C. seeking rejection of plaint and dismissal of the suit filed by the appellant, has been allowed.
2. Learned counsel for the appellant submits that subject suit was filed by the appellant for Specific Performance, Declaration, Permanent Injunction, Compensation and Damages to the Tune of Rs.
500 Billions for causing loss of business and mental torture due to his illegal dispossession by the respondents from subject shops/rooms 242, 243, 244, 245, 20, 1-A and a Tea Hall situated at Metropole Ltd. Club Road, Karachi, however, according to learned counsel, instead of deciding the fate of the subject suit after recording of evidence and hearing the parties, the learned Single Judge through impugned order passed on an application under Order VII, Rule 11, C.P.C. filed by the respondents, has been pleased to reject the plaint and dismiss the suit for being barred by limitation. Learned counsel for the appellant further submits that pursuant to lease agreement dated 20.06.1995 for a period of eleven months and secondly on 30.08.1996 for a period of forty- three months expiring on 31.12.1999 acquired possession of Shop/Room No.42 situated at Hotel Metropole at the monthly rent of Rs.4000/- along with security deposit of Rs.7000/-, however, according to learned counsel, respondents with ulterior motive illegally dispossessed the appellant from the subject shop/room and had started demolishing the construction without due process of law. It has been contended by the learned counsel that the appellant tried to get the matter resolved with the respondents, however, respondents failed to restore the possession and also to abide by the terms of the lease agreement, which caused serious financial losses and damages to the appellant, therefore, the appellant is entitled for compensation and damages to be paid by the respondents for their illegal acts. Per learned counsel, the facts as stated above require recording of evidence, therefore, instead of rejecting the plaint and dismissing the suit of the appellant on technicalities, the evidence should have been recorded by the learned Single Judge and, thereafter, the judgment and decree should have been passed in accordance with law. It has been prayed that the impugned order may be set-aside and the matter may be remanded back to the learned Single Judge for deciding the same on merits after recording evidence.
3. Heard the learned counsel for the appellant, perused the record and the impugned order passed by the learned Single Judge on C.M.A. No.2572/2020 filed under Order VII, Rule 11, C.P.C. for rejection of plaint, mainly on the ground that the suit of the appellant, besides being false and frivolous, is hopelessly time-barred, therefore, plaint is liable to be rejected.
4. From perusal of the impugned order, it appears that the learned Single Judge, while taking into consideration the relevant facts as per pleadings, and after hearing the learned counsel for the parties at length, has been pleased to hold that subject suit is barred by law of limitation, therefore, plaint is rejected and suit has, in the form it has been filed, is dismissed. As per case of the appellant as stated in the plaint, the appellant was allegedly dispossessed from the subject shops/rooms in the year 2005, however, instead of filing a suit for recovery of possession within the period of limitation, filed the subject suit for specific performance of the lease agreement in the year 2020, i.e. by way of directions to the respondents to renew the lease agreement, which appears to have already expired in the year 1999. It has been further observed that as per handwritten note in para 24 of the plaint, the appellant was allegedly dispossessed on 29.12.2005, whereas, the subject suit has been filed in the year 2020, which is barred by limitation, even if the suit is treated as a suit for possession under Section 8 of the Specific Relief Act, which provides twelve (12) years limitation for filing a suit under Article 42 of the Limitation Act, 1908 from the date of dispossession [i.e. 2005]. Admittedly, no reason whatsoever has been disclosed for such delay nor any application appears to have been filed seeking exclusion of any period for the purposes of seeking condonation of delay to cover the period of limitation.
Perusal of the contents of plaint also reflects that the appellant has miserably failed to disclose even the lawful possession over the subject shops/rooms, after expiry of lease agreement(s), which prima facie were for a period of eleven months and expired in the year 1999, nor any material has been produced to establish the lawful possession of the appellant upon the subject shops/rooms or a tea hall thereafter to make out a prima facie. Similarly, the exact date, the mode and manner in which the appellant was allegedly dispossessed from the subject shops/rooms by the respondents has been mentioned in the pleadings nor the appellant has taken any action against his alleged dispossession from the subject shops/rooms by approaching the proper forum/authority/ Court of law. Moreover, no legal provision has been cited, whereby, in the garb of a suit of specific performance, extension of lease/tenancy could be sought, and that too, after a period of more than 25 years when the written lease agreement prima facie expired in the year 1999 and about 15 years from the date the appellant was allegedly dispossessed from subject shops/rooms in the year 2005.
5. It is regretted to note that tendency to file false and frivolous proceedings before the Court of law, without disclosing lawful cause of action, or establishing a prima facie case either through documentary evidence or some reliable confidence inspiring ocular witness, has increased in recent past, which amounts to abusing the process of law for ulterior motives and unlawful gain, on the one hand, but also to burden the Courts with unnecessary and frivolous litigation. The mode and manner in which the subject suit has been framed, and the pleadings have been drafted, it appears that the appellant has miserably failed to make out a prima facie case or even to disclose any lawful cause of action to seek specific performance of lease agreement, which prima facie stood expired in the year 1999. Nothing has been brought on record or even disclosed in the pleadings to suggest that the appellant was in lawful possession of the subject shops/rooms, when the appellant was allegedly dispossessed. Moreover, the date of alleged dispossession mentioned through handwritten note, which seems to be an afterthought in Para 24 in the plaint, does not improve the case of the appellant, as neither the limitation for filing a suit for specific performance of the lease agreement or a suit for possession in terms of Sections 8 and 9 of the Specific Performance Act, was available to the appellant. The learned Single Judge in the impugned order has examined all the relevant facts and the law applicable thereto, and has rightly held that the suit is hopelessly barred by law of limitation, therefore, the plaint has been rejected under Order VII, Rule 11, C.P.C. We may observe that it is the duty of the Court to examine as to whether the Court has the jurisdiction to decide the suit and as to whether a suit filed before it is maintainable in law or not. If, the Court is of the opinion that the suit is not maintainable in law for any of the reasons as mentioned under Order VII, Rule 11, C.P.C., shall reject the plaint at the very initial stage of proceedings to avoid abuse of the process of law. The learned Single Judge in the instant case has rightly exercised the discretion as vested in Court while invoking the provisions of Order VII, Rule 11, C.P.C.
6. While confronted with hereinabove factual and legal position as emerged in the instant case, and asked to explain the inordinate delay to approach the relevant forum/ Court at the time of alleged dispossession or to file the subject suit before the learned Single Judge, seeking specific relief, compensation and damages, learned counsel for the appellant could not submit any reasonable explanation, however, submitted that since the appellant was negotiating with the respondents, therefore, the delay has accrued.
7. Since the appellant has miserably failed to make out a prima facie case, or to show any valid lawful cause of action in the suit, which otherwise is hopelessly barred by law of limitation, therefore, we are of the considered opinion that impugned order does not suffer from any factual error or legal infirmity, therefore, instant High Court Appeal, having no merits, is liable to be dismissed in limine along with listed applications. It is pertinent to note that appellant has not even deposited the Court-fees, whereas, the learned counsel for the appellant during course of hearing, did not press C.M.A. No. 1368/2022 filed under Section 149, C.P.C. seeking extension of time to deposit the Court fee, therefore, the same is also dismissed, and consequently, instant High Court Appeal stands dismissed in this account as well. Accordingly, instant High Court Appeal was dismissed in limine vide our short order dated 17.05.2022 with cost of Rs.10,000/- to be deposited in the Sindh High Court Clinic's Fund, and above are the reasons of such short order.