SYED ARSHAD ALI, J. The instant civil revision filed under Section 115 of the Code of Civil Procedure, 1905 ("CPC") challenges the order of the learned trial court dated 08.06.2021; refusing to reject the plaint filed by Niaz Muhammad respondent No.1 relating to his alleged rights/interest in the suit property.
2. Niaz Muhammad the plaintiff has filed a suit before the civil court on 06.10.2015 seeking a decree for declaration to the effect that he is the owner of the suit property (fully described in the plaint) and has questioned its sale in favour of defendants No.1, 2 and 3 through agreement dated 10.01.2014 and sale mutations No.33303 and 33304 both dated 28.05.2014 on the ground that the said sale has been fraudulently procured/executed as the defendants have not only committed fraud upon the plaintiff but have failed to pay the agreed consideration.
3. It is the claim of the plaintiff in his plaint that he had entered into an agreement with defendant No.1 for the sale of the suit land against a total sale consideration of Rs.12,4800,000/- vide sale agreement dated 10.01.2014 ("Agreement"). The defendant under the Agreement had handed over to the plaintiff cheques for an amount of Rupees three crore as down payment; the said cheques on presentation to the bank were dishonored owing to insufficient balance in his account. However, subsequently a cash amount of Rs.80,00,000/- was paid to the plaintiff whereas two further cheques were given to him. Accordingly, on the intervention of Jirga, he had transferred possession of the property to defendants and also executed two sale mutations in favour of defendants No.2 and 3, the petitioners. The plaintiff also claims the novation in Agreement on 30.03.2015 whereby; the sale consideration was enhanced and he has also referred to criminal proceedings against defendant No.1 initiated by the plaintiff.
4. Defendant No.1 is contesting the suit and has filed written statement. In the said written statement, he has conceded the execution of initial arrangement Agreement regarding sale of the property, however, he has completely denied the sale of property through the aforesaid two mutations to defendants No.2 and 3 on his behest.
S. Similarly, defendants No.2 and 3 ("Petitioners") have also filed their separate written statement wherein; it is alleged that they have no concern with defendant No.1 and they have purchased the suit property through the aforesaid two mutations from Niaz Muhammad respondent/plaintiff against sale consideration.
6. Shafi Akbar who is the alleged guarantor on behalf of defendants No.1 to 3 has also denied the contents of plaint by filing a separate written statement.
7. The divergent contest among the parties has led to framing of issues and accordingly the learned trial court has also directed the parties to produce their evidence.
8. The plaintiff in support of his claim has produced 12 witnesses who include official of the bank, revenue officials, scribe and marginal witnesses of the various deeds, Agreement upon which he relies. The plaintiff himself appeared before the court as PW-12. Similarly, defendant No.1 has also produced his official witness, the PatwariHalqa as DW-1 whereas; Khurshid Ahmad also appeared before the court as a defense witness.
9. It was on 03.04.2021 when the Petitioners who are defendants No.2 and 3 in the suit and in whose favour, the two mutations were attested/executed, filed an application under order 7 Rule 11 CPC seeking rejection of the plaint mainly on the ground that in view of a novation in Agreement between plaintiff and defendant No.1, defendants No.2 and 3 are no more necessary parties, therefore, the plaint against them be rejected. This application was contested by the plaintiff by filing his detailed reply.
10. The learned trial court after hearing arguments addressed by both the parties and tentatively examining the documentary evidence has dismissed the said application being pre-mature.
11. Mr. Abdul Samad Khan, the learned Senior Advocate, Supreme Court while arguing the case has stated that privity of Agreement exist between the plaintiff and defendants No.2 and 3 (the Petitioners) and according to the said agreement/mutations, they have purchased suit property by paying huge consideration, therefore, the plaint to their extent does not disclose any cause of action hence liable to be reject. In support of his contentions, he has placed reliance on "Muhammad Saleem and another Vs. Muhammad Altaf and 12 others (2014 CLC 1142), Raja Ali Shah Vs. MessrsEssem Hotel Limited and others (2007 SCMR 741), Mai Mithan and 67 others Vs. Banda-e-Ali and 94 others (2022 CLC 722), Messrs Trust Investment Bank Ltd. Through Authorized officer Vs. Government of Sindh through Secretary Home and 03 others (2016 MLD 278), Seema Fareed and others Vs. the State and another (2008 SCMR 839), Malik Khuda Bakhsh Vs. the State (1995 SCMR 1621), Saifullah Khan Vs. Viith Additional District and Sessions Judge (East), Karachi and 07 others (2018 PCr.LJ 154), The Federal Government of Islamic Republic of Pakistan through Secretary Interior Division Vs. General (R) Pervez Musharraf (2014 PCr.LJ 684), Muhammad Nawaz Khan and 02 others Vs. Bahadar Nawaz and 17 others (2022 CLC 202), Ali Murad and another Vs. Aga Khan Health Service Pakistan through Chief Executive and 07 others (2020 CLC 326)."
12. On the other hand, Mr. Naveed Maqsood Sethi, Advocate, learned counsel representing respondent No.1 has argued that since the evidence in the matter has already commenced and the cause of action against the defendants cannot be bifurcated as essentially the plaintiff has not received any consideration from defendants No.2 and 3 but as evident from the contents of Agreement it was on behest of defendant No.1 that the suit property was transferred to defendants No.2 and 3 the Petitioners who later went into hiding and thus has caused colossal losses to the plaintiff; depriving him of his valuable property. He next argued that defendants No.1, 2 and 3 are hand in gloves and are adamant to deprive the plaintiff of the suit property and supported the impugned order.
13. Arguments heard and record of the case was minutely perused.
14. It is the precise claim of the plaintiff/respondent that he is the owner of the property and in support of his claim he has placed on file the mutations on the basis of which he has purchased the property. He relies on the sale Agreement dated 10.01.2014, 10.03.2015 and 09.02.2021 whereby; the suit property was sold to defendant No.1, however, defendant No.1 has cheated him and has failed to pay the entire consideration. His essential claim against the disputed mutation is that these mutations were attested on the instruction of defendant No.1 as it is clearly envisaged in the Agreement that the plaintiff would be bound to execute sale Agreement/mutation in favour of defendant No.1 or his nominee. Against that defendants No.2 and 3 claim in their joint written statement that they have purchased the suit property by paying the consideration to the plaintiff, however, the written statement is silent about the fact that what was the consideration, how it was paid and in whose presence it was paid.
15. I am conscious of the fact that the amount of consideration is reflected in the disputed mutation but in this regard it is the explanation of the plaintiff in his cross examination while appearing as PW-12 that this amount was entered in the mutation only for the purpose of execution of mutation/payment of taxes and he has never received this amount.
16. In view of the above, the essential issue before this Court as to whether keeping in view the aforesaid facts, it can be ascertained from perusal of the plaint that it discloses a cause of action?
And whether the plaint can be rejected in peace-meal?
17. Order 7 Rule 11 CPC provides the following 04 eventualities where the plaint can be rejected: - "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 plaint, 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 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."
18. Clause "a" of Order 7 Rule 11 envisages that in cases of non-disclosure of cause of action, the plaint is liable to be rejected. I am conscious of the legal preposition that "accrual of cause of action" and "disclosure of cause of action" are two distinct concepts, former can only be decided after recording of evidence whereas in the case of non-disclosure of cause of action, the result would be rejection of plaint as mandated by Order 7 Rule 11 CPC. The term "Cause of Action" has not been explained or defined in the CPC or any other law, therefore, in this regard I can have recourse to the other treatises/dictionaries and the law developed by various jurists to understand the concept "disclose of cause of action". The various dictionaries have explained the term cause of action as following:- "CAMPBRIDGE DICTIONARY: "An acceptable reason in law for taking legal action against someone."
COLLINS DICTIONARY: The facts alleged in a complaint, upon which is based the plaintiff's right to a legal remedy in a court of law.
LAW RIGHT: "A cause of action is the technical legal name for the set of facts which give rise to a claim enforceable in court. It is a legally recognized wrong that creates the right to sue. Each cause of action consists of points the plaintiff must prove and all of these elements must be satisfied in order to take court action."
MACMILLAN DICTIONARY: "A fact or set of facts that is sufficient to justify legal action."
SEWELL & KETTLE Lawyers DICTIONARY: The fact of combination of facts that give a person the right to seek judicial redress as a result from some wrongful act or breach that has cause a person loss of damage. The person who has a cause of action and commences proceedings is referred to as a "plaintiff".
In order to seek a remedy, a plaintiff will have to successfully 'plead' the facts that satisfy the 'elements' of a cause of action.
The remedy is usually sought by filing and serving a statement of claim on the person or entity that has committed the alleged wrongful act. The statement of claim must be filed in a competent jurisdiction that has the ability to hear a particular claim and the person or entity must have standing to be heard.
Two of the most common causes of action are tort and contract. There are many different types of causes of action in tort, some of which include negligence, conversion, passing off and defamation. On the other hand, in contract there is only one type of cause of action, being breach of contract. This is distinct from debt as a cause of action.
WIKIPEDIA: "A cause of action is defined as a set of predefined factual elements that allow for a legal remedy.
The factual elements needed for a specific cause of action can come from a constitution, statute, judicial precedent, or administrative regulation."
For instance, in New York, the "cause of action" necessary for conversion are 1) the existence of the plaintiff's possessory right or interest in the item and 2) defendant's dominion over that item or interference with it in derogation of plaintiff's rights (stated through case law - see Colavito v New York Organ Donor Network, Inc.). Likewise, in California, the elements for conversion are also dictated through case law. In the California Supreme Court case Lee v. Hanley, the court states that the elements of conversion are (1) the plaintiff's ownership or right to possession of the property; (2) the defendant's conversion by a wrong act or disposition of plaintiff's property rights; and (3) damages suffered by plaintiff."
19. The privy council in the case of "Chand Kaur Vs. Partap Singh (15 IA 156) regarding the expression "cause of action" has observed that:- "the cause of action does not depend upon the character of the relief prayed for by the plaintiff but it refers entirely to the grounds set forth in the plaint as a cause of action or in other words the media upon which the plaintiff asks the court to a conclusion in his favour."
20. However, it has been very aptly and elaborately explained by the Hon'ble Supreme Court in the case of "Pakistan Agricultural Storage and Services Corporation Ltd. Vs. Mian Abdul Latif and others (PLD 2008 SC 371)" that:- "it would be pertinent to mention here that the term "cause of action" represents all the requisites and facts which are necessary for the plaintiff to prove before he can succeed in a suit."
21. In view of the above, this Court hold that cause of action relating to filing of a suit can be construed as set of facts which are narrated in the plaint and giving rise to a claim enforceable under any law/contract/conventions in any court recognized by law. The trial court while rendering an opinion whether the plaint discloses a cause of action or otherwise while deciding an application under Order 7 Rule 11(a) CPC has to evaluate the entire facts narrated in the plaint upon which the plaintiff is seeking his remedy against the defendants. After perusal of the said facts and relevant record if the court reaches at a conclusion that there is a probability, if the plaintiff is allowed to lead evidence in support of his/their claim, he may succeed in getting a decree against the defendant for his entire or partial claim. In such circumstances, the plaint should not be rejected.
22. In the present case, the plaintiff has specifically claimed ownership of the property and has questioned its sale to defendant No.1 and has raised a serious legal as well as factual objections on the proprietary and legality of the two mutations on the basis of which petitioners have purchased the suit property albeit he has denied the receipt of consideration as reflected in the order of revenue officer attesting the mutation in question. The plaintiff asserts that he has not received the compensation and in this regard he had produced 11 witnesses. Now it is the petitioner's duty to establish that the consideration was paid to the plaintiff as the written statement does not disclose that what was the consideration and how it was paid. These findings being recorded in this judgment are tentative in nature and the learned trial court would independently form its opinion regarding the burden of prove of each party. However, I am of the opinion that keeping in view the various agreements stated above, the contents of the pleading and the evidence produced by the plaintiff; the plaint does disclose a cause of action relating to the rights of the plaintiff over the suit property. Thus, the findings of learned trial court in this regard are not open to any exception.
23. Moving on to the second issue. When the learned counsel for the petitioners was asked whether a suit can be partly rejected, in support of his arguments he has relied upon the judgment of the Worthy Singh High Court in the case of "Muhammad Saleem and another Vs. Muhammad Altaf and 12 others (2014 CLC 1142)." I have perused the said judgment.
The facts of the said judgment are altogether distinguishable, however, in this regard the law is settled that the concept of partial rejection of plaint or rejection of plaint in peace-meal is completely alien to the jurisprudence developed in Pakistan as well as in India. Granted that there could be partial striking out of pleading but not rejection of plaint because partial rejection or acceptance of plaint has always been considered as improper exercise of jurisdiction. "President ZaraiTaraqiati Bank Ltd Head Office, Islamabad Vs. Kishwar Khan and others (2022 SCMR 1598), Mrs. AasiaRizvi and others Vs. Mian Muhammad Aslam and others (2019 CLC 1333 Lahore), Aroma Travel Services (Pvt) Ltd through Director and 04 others Vs. Faisal Al-Abdullah Al-Faisal- Saud and 20 others (2017 YLR 1579), Muhammad Nawaz Khan through legal heirs and others Vs. Province of Punjab through Collector and others (2014 YLR 1222 Lahore), Attaullah and 06 others Vs. Sanaullah and 05 others (PLD 2009 Karachi 38), Izhar Muhammad Vs. Messrs Memon Housing Services through Partner and another (2009 MLD 1378 Karachi), Zahida Tabbasam Lilak Vs. Pakistan Defence Housing Authority and others (2007 YLR 1034 Karachi), EFU General Insurance Company Ltd through Branch Manager and 02 others Vs. Zahidjee Textile Mills Ltd through Assistant Director and another (2005 CLC 848 Lahore), Mst. KhurshidJehan Vs. Syed Aziz Ahmed Naqvi and 02 others (1990 CLC 1132 Karachi)."
24. Similarly, the India Supreme Court in the case of "Roop Lal Sathi Vs. Nachhattar Singh (1982 AIR 1559, 1983 SCR (1) 702)" has held, "where the plaint discloses no cause of action it is obligatory upon the Court to reject the plaint as a whole under Order VII Rule 11 (a) of the Code, but the rules does not justify the rejection of any particular portion of a plaint". The judgment of the Indian Supreme Court has been followed by the various High Courts of India in the cases of "Arunesh Punetha Vs. Boston Scientific Corporation, Sh. Ram Prakash Gupta Vs. Sh. Rajvi Kumar Gupta and others (129 (2006) DLT 381), SMT.V. BraganNayagi Vs. R.R. Jey Aprakasam, Dr. Ramesh Chander Munjal and others Vs. Dr. SurajMunjal and others, KalpeshbhaiDanachandbhai Shah Vs. AshvinbhaiLalchand Shah, Michael Gabriel Vs. Sheth Builders Pvt. Ltd, Nirmal Kumari Vs. Raj Bahadur Singh Jamwal and another."
25. In view of the aforesaid discussion, this Court is of the considered opinion that the impugned judgment/order of the learned trial court is a well-reasoned and has addressed the legal as well as factual issue in an appropriate manner which does not call for interference. Resultantly this petition having no merit is accordingly dismissed.