KHADIM HUSSAIN SOOMRO, J. Through this appeal under Section 100, Code of Civil Procedure 1908 ("C.P.C."), the appellant has impugned the Judgment and Decree dated 15.05.2023, passed in Civil Appeal No. 61 of 2023 by learned 8th Additional District Judge, Hyderabad ("the appellate Court"), whereby an appeal filed by the appellant/plaintiff was dismissed by upholding an order dated 28.02.2023 for rejection of plaint passed by learned IVth Senior Civil Judge, Hyderabad in F.C. Suit No. 327/2023 as well as dismissing the injunction application under Order XXXIX Rules 1 and 2 C.P.C.
Hence, this 2nd appeal.
2. Appellant Ahmed Ali Talpur filed a Suit for declaration, cancellation, mandatory and permanent injunction against the respondents with the following prayers:- a. To hold and declare that the plaintiff is an exclusive owner of the suit property by way of allotment order dated 20-11-2007 and in lawful possession of the suit property. b. Grant decree of cancellation of lease deed dated 06-02-2023 No.61 in favour of defendant No.4 being void, ab-initio. c. Grant mandatory injunction directing the defendants Nos.1 and 2 to register the lease deed in favour of plaintiff strictly in accordance with the law and maintain the same name of the plaintiff as owner. d. Grant permanent injunction restraining the defendants from transferring, alienating, changing the suit property, creating third party interest or dispossessing the plaintiff from suit property, by themselves, through their agents, servants, assignees etc. e. Costs of the suit may be saddled upon the defendant No.1. f. Any other relief as this Honourable Court deems fit and proper in the circumstances of the case.
3. After service of notice/summon respondent No.4 through his counsel filed an application under Order VII Rule 11 C.P.C. and after hearing counsel for parties, learned trial Court allowed the application under Order VII Rule 11 C.P.C. and rejected the plaint of appellant/plaintiff and also dismissed the application under Order 39 Rules 1 and 2 C.P.C. Being aggrieved appellant/plaintiff challenged the same before first appellate Court, same has been maintained and appeal has been dismissed vide impugned judgment dated 15.05.2023, hence this appeal.
4. Learned counsel for the appellant/plaintiff has mainly contended that the impugned judgment and decree as well as order rendered by both the courts below have been passed in a hasty manner; that both the Courts below have erroneously rejected the plaint of the appellant/plaintiff; it is a well settled principle of law that while deciding an application under Order VII Rule-11 C.P.C. averments of the plaint is to be seen but both the Courts below have ignored this principle; that the suit property was initially leased out to the appellant/plaintiff on 02.04.2011 and after expiry of 20 years another lease deed was executed in his favour; that allotment order dated 20.11.2007 issued by T.M.A demonstrates the name of appellant/plaintiff; that the appellant/plaintiff submitted the challan, which is available at Page-99 and lease deed at Page-95 of the Court file; that the lease deed dated 02.11.2023 was made by the Director Land Hyderabad Municipal Corporation in favour of appellant/plaintiff but the same was not registered for the period of 49 years. The counsel has referred letter dated 02.01.2023 written by director Land (supra) to appellant/plaintiff wherein the reference of allotment order was made; that there is also. No objection certificate' dated 07.02.2023 available on record; that the suit property was originally owned by Nawab Ahmed Ali Talpur grandfather of the appellant/plaintiff; that the respondent No.4 made a gift in favour of appellant/plaintiff in the year 2007 and such entry was made in the record of rights; that the gift was executed in favour of appellant/plaintiff by the respondent No.4 through unregistered gift dated 08.10.2007 and as per letter dated 31.01.2023 the gift was cancelled; that the director land (supra) through letter dated 26.05.2023 informed the appellant/plaintiff that the suit property was restored in the name of respondent No.4; that the statement on oath dated 30.10.2007 where the respondent No.4 affirms execution of gift as well as 'N.O.C.' and the registration of gift is not required by law under 'Muhammadan Law' and that the execution of gift was not denied by the respondent No.4. While, concluding his contentions, learned counsel relied upon section-42 of Specific Relief Act, 1877 and submitted that the cancellation of gift prima facie demonstrates that the gift was in existence. However, in support of his contentions, he has relied on the case law reported as 2023 CLC 887, 2008 CLC 1462, 2006 SCMR 489, 1995 SCMR 459, 2008 SCMR 650 and 1995 SCMR 826. He prayed to set aside the impugned judgment and decree/order of both the courts below.
5. The learned counsel for respondent No.4 has contended that the appellant/plaintiff is the son of respondent No.4, who is still alive. Counsel referred Para-5 of the plaint and submitted that the same reveals that there remained no love and affection between appellant/plaintiff and respondent No.4; hence, there is, no question of making a gift in favour of the plaintiff/appellant.
The counsel also referred to Para-8 of the plaint, which did not disclose the date, time or month as well as year of the execution of gift in the plaint, that 70 percent portion of the suit property is in possession of the appellant/plaintiff and only 30 percent is in possession of respondent No.4; that as per appellant/plaintiff's version that a statement of respondent No.4 was recorded in the office of respondent No.2, but no record is available in this regard; that neither the Vakalatnama nor the special power of attorney was signed by appellant/plaintiff and the instant appeal was filed by one Allah Jurio, who was not authorized to file the present appeal; that gift deed is available with H.M.C.
The learned counsel for respondent No.4 prayed to dismiss the instant appeal.
6. I have heard the learned counsel for both parties and perused the record and the judgment/order of the two courts below. The plaint of the appellant/plaintiff was rejected under Order VII Rule 11 C.P.C.; it is deemed appropriate to scrutinize the provisions delineated under Order VII, Rule 11 of the Code of Civil Procedure, 1908, at the present juncture. The said provision is reproduced below: "(11) 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. A vast array of instances have offered different interpretations of this crucial rule of law. The interpretation applied thereto falls within a broad spectrum, and I will examine some of the important case laws at a later stage. It is essential, therefore, to analyze the exact wording in the procedural law before doing so. The salient features contained in the provision are the following:-
(i) The words used are "rejection of plaint". In other words, the legislature has deliberately refrained from providing that the suit should be "dismissed". A distinction has thus been drawn between a dismissal of a suit and the rejection of a plaint, and it is this distinction that needs to be elucidated.
(ii) The opening words indicate that it is mandatory for the Court to reject the plaint if one or more of the four clauses are found to be applicable. This is made clear by the use of the word "shall" in the opening phase.
(iii) The first clause contains a clear statement that in case the plaint does not disclose a cause of action, it is to be rejected. The next two clauses, namely, clauses (b) and (c), relate to the valuation of the plaint and the stamp duty to be affixed thereon and, again do not require much discussion. It is the last clause, namely (d), in relation to which most of the litigation has taken place. Therefore, it requires a careful analysis.
(iv) Clause (d) has three constituent elements. The first part uses the important word "appears", the second part relates to statements made in the plaint, (i.e. there is no reference to the written statement), and the third part states the inference to be drawn if a suit "appears" from the statement in the "plaint" to be "barred" by law. This read, in conjunction with the opening words of Rule 1.1, makes it mandatory for the Court to reject the plaint.
8. It is essential to analyse the grounds upon which a plaint is subject to rejection. Substantial jurisprudence exists on this subject matter, incorporating a broad spectrum. On one hand of the spectrum, there is a notable emphasis on paramount importance to the averments within the plaint, excluding extraneous considerations. Conversely, the spectrum extends to include an examination of the plaint itself and the attached documents and, stretching further, scrutiny of other manifest and unequivocal materials in the record. The subsequent elucidation presents several pivotal judgments of the apex court of Pakistan on this matter:-
(i) In the case of Anees Haider and others v. S. Amir Haider and others (2008 SCMR 236), the apex court reaffirmed the doctrinal tenet that reliance on the written statement is untenable.
(ii) In the case of Haji Allah Bukhsh v. Abdul Rehman and others (1995 SCMR 459), it was observed that the averments made in the plaint are presumed to be correct.
(iii) In the case of Jewan and 7 others v. Federation of Pakistan (1994 SCMR 826), it was determined that legal sanction allows for the examination exclusively of the contents set forth in the plaint, with the defence enunciated in the written statement deemed inadmissible. However, it was well-known that, in conjunction with the plaint, any other material acknowledged by the plaintiff and produced before the Court may be deliberated. Additionally, it was highlighted that the Court lacks the entitlement to analyze any supplementary material unless it has been duly entered into the record in conformity with the established rules of evidence.
(iv) In the case of Muhammad Saleemullah and others v. Additional District Judge, Gujranwala (PLD 2006 SC 511), it was observed that Order VII, Rule 11 anticipates the rejection of a plaint only on the basis of averments made in, "the plaint, and the pleas raised in the written statement are not to be taken into account. It was also observed that the Court was entitled to rely on the documents annexed to the plaint.
(v) The case of Saleem Malik v. Pakistan Cricket Board (PLD 2008 SC 650), it is a little difficult to reconcile with the overwhelming weight of authority since the observation in this case, was "that the court, may, in exceptional circumstances, consider the legal objection in the light of averment of the written statement but the pleading as a whole cannot be taken into consideration for rejection of plaint under Order VII, Rule 11, C.P.C"
(vii) In the case of S.M. Shafi Ahmed Zaidi v. Malik Hasan Ali Khan (2002 SCMR 338), the following finding was rendered: "It was further observed that "it is the requirement of law that incompetent suit shall be buried at its inception. It is in the interest of the litigation party and judicial system itself. The parties are saved their time and unnecessary expenses, and the courts get more time to devote it for the genuine causes."
(viii) In the case of Pakistan Agricultural Storage and Services Corporation Limited v. Mian Abdul Lateef and others PLD 2008 SC 371, it was held that the object of Order VII, Rule 11, C.P.C. was primarily to save the parties from the rigorous frivolous litigation at the very inception of the proceedings.
(ix) In the case of Salamat Ali v. Khairuddin 2007 YLR 2453, it was observed that although the proposition that a court, while rejecting the claim under Order VII, Rule 11, C.P.C., could only examine the contents of the plaint was correct, nevertheless, this rule should not be applied mechanically.
(x) In the case of Arif Majeed Malik and others v. Board of Governors Karachi Grammar School (2004 CLC 1029), it was noted that the traditional view was that in order to reject a plaint under Order VII Rule 11, only the contents of the plaint were to be looked into. It was added, however, that this view had since been modified to the extent that an undisputed document placed on record could also be looked into for the aforesaid purpose.
9. After considering the ratio decidendi in the above cases, I am clear in my mind about the scope of Order VII, Rule 11 C.P.C. The statutory framework does not include any stipulation mandating that the plaint be supposed to incorporate the entire veracity of facts. Instead, it is up to the Court, which is inherent in every Court that deals with justice and equity, to determine whether a suit is barred by any law for the time being enforced. The sole prerequisite is that the Court, prior to rendering a judgment, must analyze the averments made' in the plaint. Furthermore, through a requisite implication, it is evident that the contents of the written statement are not to be examined and put in juxtaposition with the plaint to ascertain the veracity or fallacy of the plaint's averments is expressly precluded. In essence, the Court is not tasked with adjudicating the correctness of the plaint or, the written statement.
10. Now, by following the ratio decidendi settled in the above case laws, turning towards the averment of the plaint. As per paragraph No.08 of the plaint, the plaintiff/appellant averred that the suit house was gifted by respondent No. 04 to the appellant and as per paragraph No.09 of the plaint, which is reproduced as under:- "That by virtue of said gift the statement was recoded before the office of the defendant No. 02 and accordingly in this manner, the suit property was transferred in favour of plaintiff through allotment, his name was incorporated in the record by the defendant No. 02 and he becomes owner of the property vide allotment dated 20-11-2007, after fulfilling the codal formalities "
11. As per the application moved by the appellant/plaintiff dated 26-10-2007, the appellant claimed to have purchased the suit house. Moreover, the appellant/plaintiff sought the declaration of ownership on the basis of the allotment order. The appellant/plaintiff has filed the lease deed, which does not show the mode of transfer of the suit house by way of gift; instead, it demonstrates that the same is purchased and the dead is unregistered. Whereas the registered lease deed is registered in the name of respondent No. 04, when the register lease deed in the name of the respondent No.04 has not been cancelled, the suit house can neither be transferred to the name of the appellant/plaintiff nor the same can be allotted to him. Hence the suit of the plaintiff/appellant is defective. The reliance can be placed in the case of Jewan and 7 others v. Federation of Pakistan as cited supra.
12. The incompetent Suit should be responded to promptly with its logical end and buried at its initial stage. This procedural requirement benefits the parties embroiled in the dispute and emances the efficiency of the entire judicial system. By adhering to this rule, both parties can conserve their time and resources, avoiding unnecessary expenses. Simultaneously, the courts can prioritize addressing substantive issues/rather than getting bogged down in preliminary matters.
Thus, early resolution of incompetence-related suits streamlines the legal process, ensuring that pertinent issues receive due attention. The reliance can be placed on the case of S.M. Shafi Ahmed Zaidi supra.
13. Another important aspect of the case is that this appeal is presented through a Special Power of Attorney, namely, Allah Jurio, son of Allah Dino, who claims to be the Special Power of Attorney of the appellant. The record reveals that the Special Power of Attorney, available at page No.130 of the court file; does not show signatures of either the executant or witnesses, but it is estranged that the Notary Public has attested it without signature. The record further reveals that the said Allah Jurio has engaged counsel. A perusal of the Vakalatnama of the counsel demonstrates the signature of Allah Jurio, who has engaged the counsel to file this appeal as the Special Power of Attorney of Ahmed Ali Talpur. It is a matter of record that during the proceedings, the said Ahmed Ali Talpur did not appear to verify the Special Power of Attorney, under Order XLI Rule 1 C.P.C, which provides a procedure for the presentation of an appeal. The said rule is reproduced as follows: "1. Form of appeal. What to accompany memorandum.-- (1) Every appeal shall be preferred in the form of a memorandum signed by the appellant or his pleader and presented to the Court or to such officer as it appoints in this behalf. The memorandum shall be accompanied by a copy of the decree appealed from and (unless the Appellate Court dispenses therewith) of the judgment on which it is founded."
14. The aforementioned rule states that the appeal must be signed by the party or by his pleader. In the instant case, undoubtedly, the appeal was presented by counsel not under the instructions of Ahmed Ali Talpur but under the instructions of the alleged attorney, Allah Jurio, who, without obtaining Special Power of Attorney, has presented the appeal, which is not warranted by law.
15. Regarding the argument of the learned counsel that the non-signing of the Vakalatnama as well as the memo. of appeal is merely a procedural irregularity which can be rectified at any stage of the proceedings, to the extent of this submission of learned counsel, undoubtedly, the law states so. However, in the instant case, the appeal was presented by Allah Jurio who was not appointed as Special Power of Attorney by Ahmed Ali Talpur. Furthermore, during the pendency of the instant appeal, the said Ahmed Ali Talpur did not appear to rectify or affirm that the present appeal was drafted and submitted under his instructions. Hence, it is observed that while filing the instant appeal, the procedure has been grossly violated.
16. The procedural law guarantes that legal proceedings are conducted in a fair and just manner. It establishes standards for legal proceedings and is designed to maintain the concept of due process, which guarantees that individuals receive just treatment and a fair opportunity of hearing before a court. This includes an entire course in procedural proceedings, from presenting the plaint, submitting a written statement, framing the issues, producing the documents, leading evidence and equal opportunity of hearing; non-compliance with procedural law can result in the denial of due process. Due process is not merely a procedural formality but a fundamental right that guarantees persons are treaterracly in accordance with the law and have a fair opportunity of hearing in a legal proceeding. Ignoring those rules may result in a violation of fundamental rights.
The legislature enacted the procedural law on the sound principle of justice. Non-compliance with these rules can lead to disorder, confusion, and inefficiency in the administration of justice. In the case of Imtiaz Ahmed v. Ghulam Ali (PLD 1963 SC 382), the apex court observes that the principal aims and objectives of the procedural law and rules made there under are t6 expedite the justice system rather than hindered. The evasion of technicalities is encouraged unless their compliance is obligatory for public policy reasons. Although our legal system is based on the English system, we are not obligated to replicate its shortcomings despite its technical characteristics. A system that prioritizes form over substance, resulting in the frustration of substantive rights, is considered defective to that extent. In this context, Mr. Justice B.Z. Kaikaus, while with the majority view of the case, opined as under:- "I think the proper place of procedure in any system of administration of justice is to help and not to thwart the grant to the people of their rights. All technicalities have to be avoided unless it be essential to comply with them on grounds of public policy (emphasis supplied). The English system of administration of justice on which our own is based may be to certain extent technical but we are not to take from that system its defects. Any system, which by giving effect to the form and not to the substance defeats substantive rights, is defective to that extent. The ideal must always be a system that gives to every person what is his."
17. The scope of Section 100 C.P.C. is limited to appeals involving substantial questions of law rather than pure questions of fact. When considering a second appeal under Section 100 C.P.C., it is essential to formulate the question of law, which is inherent to the jurisdiction. In order to avoid unfairness and make sure justice has been done, the ability to appeal brings up the idea of highlighting two or even three layers of checks and balances. There is a clear difference between the two appellate jurisdictions. The first, granted by Section 96 C.P.C., allows the Appellate Court to consider factual issues. The second, granted by Section 100 ibid, limits the High Court's jurisdiction to questions of law, which are necessary for the exercise of Section 100 C.P.C., and does not allow it to interfere with the factual findings recorded by the first Appellate Court. In cases where lower courts have reached incorrect or flawed conclusions that could lead to an injustice, the High Court can step in and reverse the first appellate court's findings of fact. However, it cannot initiate an inquiry into the facts In view of the above factum, the two courts of competent jurisdiction have rendered concurrent findings based on well-established legal principles. The counsel for the appellant/plaintiff has not demonstrated any illegality or material irregularity in the judgment/order passed by both the courts below.
18. In light of the above facts and circumstances, I am of the considered opinion that the instant appeal lacks merits. Consequently, the same is dismissed along with pending applications with no order as to cost.