MUHAMMAD IJAZ KHAN, J. Through the instant petition, the petitioners have challenged the order and judgment of learned Additional District Judge-IV, Haripur dated 17.04.2023, whereby, the appeal filed by the respondents Nos.1 and 2 (plaintiffs) was accepted and thereby, remanded the matter to the learned trial Court/Civil Judge-II, Haripur, for its decision on merits, and set-aside the order and judgment dated: 11.01.2022 who vide the same had accepted the application of petitioners/defendants filed under Order VII Rule 11, C.P.C. and thereby, rejected the plaint filed by the respondents.
2. Precisely the facts of the case are that the respondents/plaintiffs filed a suit against the present petitioners for declaration as well as possession. Petitioners/defendants were summoned, who appeared and submitted their written statement(s). Along with written statement an application under Order VII Rule 11, C.P.C. for rejection of plaint was also submitted, which was duly replied by the respondent/plaintiff. After hearing arguments of learned counsel for parties, the learned trial Court vide order and judgment dated: 11.01.2022 accepted the application of petitioners/defendants and thereby rejected the plaint under Order VII Rule 11, C.P.C. Being aggrieved from the said order and judgment, the respondents/plaintiffs preferred an appeal before the learned Additional District Judge-IV, Haripur, who accepted the same vide order and judgment dated: 17.04.2023, hence, the petitioners/defendants being dis-satisfied from the order and judgment of learned appellate Court has now approached to this Court by filing instant petition.
2. Arguments of learned counsel for parties were heard in considerable detail and record perused with their able assistance.
3. The record would show that the respondents/plaintiffs have challenged the legality and authenticity of gift mutation No. 1157 attested on 21.12.1988 and mutation No. 3770 attested on 12.02.2021 as well as many other mutations as mentioned in the heading of the plaint. It is part of the record that both the parties are siblings inter se and dispute pertains to legacy of their father namely Abdul Aziz, therefore, in the given facts and circumstances whether the disputed gift mutation(s) were validly made or the same is the result of any fraud, are the questions which would be determined by the learned trial Court after recording of pro and contra evidence and thus, rejecting such a plaint at the initial stage would not meet the ends of justice specially on the ground of limitation. It may be reiterated that as per law developed so far, the principle of limitation law, acquiescence as well as estoppel could not be strictly adhere to in the cases of legal heirs who are deriving their title(s) from a common predecessor.
5. It is relevant to mention here that while deciding the application filed under Order VII Rule 11, C.P.C., the Court has just to see that as to whether the plaintiff has disclosed a cause of action or not and as such at this initial stage it should not be the concern of the Court to record any finding that the plaintiff is not having a cause of actionor that he would not be able to prove the cause of action, as such aspect of the case is to be determined after recording of pro and contra evidence.
In the present case it was noted that the respondents/plaintiffs have successfully disclosed a cause of action, therefore, in the given facts and circumstances, the suit of the respondents/plaintiffs is liable to the proceeded in accordance with law.
6. It is relevant to mention here that while deciding the application under Order VII rule 11, C.P.C., it is only the contents of the plaint which are to be considered and even the plea taken in the written statement or any document appended with the written statement cannot be considered at such initial stage. In the case[1] this court has already observed that at the time of deciding an application filed under Order VII rule 11, C.P.C., for the rejection of a plaint, the Court has just to consider the "contents" of the plaint and every fact mentioned in the plaint has to be considered as true and correct and even the written statement or a plea taken in the written statement could not be taken into consideration. Even the fact/apprehension that the plaintiff may not ultimately succeed in establishing the averments made in the plaint, cannot be a ground for rejecting the plaint under Order VII rule 11, C.P.C. In this regard wisdom can be drawn from the judgment rendered by the Apex Court in the case[2] wherein it is held that; "The rejection of plaint under Order VII, Rule-II, C.P.C. is contemplated at a stage when the Court has not recorded any evidence in suit. It is for this reason precisely, that the law permits consideration of only averments made in the plaint for the purpose of deciding whether the plaint should be rejected or not far failure to disclose emote of action or the suit being barred under some provision of law. The Court while taking action for rejection of plaint under Order VII, Rule 11, C.P.C. cannot take into consideration pleas raised by the defendant in the suit in his defence as at that stage the pleas raised by the defendants are only contentions in the proceedings, unsupported by any evidence on record. However, if there is some other material before the Court apart from the plaint at that stage, which is admitted by the plaintiff, the same can also be looked into and taken into consideration by the Court while rejecting the plaint under Order-VII, Rule-11, C.P.C. Beyond that the Court would not be entitled to take into consideration any other material produced on record unless the same is brought on record in accordance with the rules of evidence."##TE##
7. During the course of arguments learned counsel for petitioners was confronted that what illegality or irregularity has been committed by the learned appellate Court while remanding the matter to the learned trial Court, however, he was unable to pin point any such illegality, irregularity or misapplication of law in the impugned order and judgment.
8. In view of the findings recorded hereinabove, it is held that the impugned order and judgment of learned appellate Court dated: 17.04.2023 is in accordance with law on the subject, therefore, same is maintained, while the instant revision petition being devoid of any merit is hereby dismissed in limine.
1. Assistant Director Mines and Mineral Department, Swabi v. Fazal Sadiq and others (2022 CLC 1392)
[2]Jewan and 7th others v. Federation of Pakistan through Secretary, Revenue, Islamabad and 2 others (1994 SCMR 826)