SADIQ ALI J:- Through the petition in hand filed under Article 199 of the Constitution of Islamic Republic of Pakistan 1973, petitioner has prayed to this court for issuance of a writ to the following effect: "On acceptance of the instant writ petition impugned orders and judgments passed by both the learned courts ADJ-IV Swabi / respondent No.2 and Civil Judge-VI Swabi / respondent No.3 may kindly be declared illegal, null and void and accept the application under Order 7 Rule 11 CPC."
2. Brief facts of the case are that petitioner / appellant had previously submitted an application under Order VII Rule 11 CPC, which was dismissed by the learned trial court on 03.01.2020. With the passage of time, the situation changed significantly due to the fact that the respondent / plaintiff's father, Syed Quraish, filed a separate suit before the Deputy Commissioner, Swabi under the Parent Protection Ordinance, 2021, concerning the same subject property. Given this new development, the petitioner / appellant submitted a second application under Order VII Rule 11 CPC, which was dismissed with the cost of Rs. 5000/, The respondent / plaintiff Syed Amir Shah filed a suit titled "Syed Amir Shah etc. v. Syed Bahadar Shah etc." before the learned Civil Judge-VI, Swabi, seeking a declaration, ejectment, and permanent injunction stating therein that the property had been given to him by his father. The disputed property measuring 5. kanal 5 marla, part of a larger holding of 23 kanal 7 marla, was recorded in Khasra and Khatooni Nos. 5895 to 5902 under holding No. 2581 in the 2013-2014 revenue record of Mouza Saleem Khan. The petitioner / appellant acquired this property through Mutation No. 3970 dated 21.02.2015 from his father and was in possession.
However, the father of the respondent I plaintiff himself filed a complaint before the DPO Swabi, stating therein that he was the owner in possession of the property and had not been evicted or expelled by anyone. Further, on 16.04.2024, two independent witnesses i.e. Said Qaseem and Jehanzeb gave affidavits confirming that Syed Quraish was residing with Syed Amir Shah, not with Syed Bahadar Shah, and that Syed Bahadar Shah had constructed the disputed house on his own purchased land (Mutation Nos. 2307 and 2838). The father of the respondent / plaintiff had categorically denied ever transferring or gifting the property to the plaintiff and submitted applications to both the DPO, Swabi and Deputy Commissioner, Swabi, and in proceedings under the Parent Protection Ordinance 2021, he reaffirmed his exclusive ownership and possession. He further withdrew an earlier complaint, admitting that there was no eviction or wrongful dispossession by the petitioner / appellant. A commission comprising AAC Swabi, Girdawar Halqa, and Patwari Halqa was appointed by the Deputy Commissioner, Swabi to inspect the property.
Their report declared Syed Quraish and Syed Bahadar Shah as co-sharers and owners in possession, while Syed Amir Shah was not found to be in possession or ownership, but despite that the learned lower court failed to consider this crucial evidence. The learned District and Sessions Judge, Swabi, in proceedings under the Parent Protection Ordinance, 2021 observed that Syed Quraish stated on oath that he had not been evicted or expelled from the property by the appellant (Defendant No. 1). The suit was merely based on the claim that their father had gifted the house to them, but the same was categorically denied by the father in his sworn statements recorded before the competent forums. Despite the direction of the District & Sessions Judge, Swabi, the father of the plaintiffs never pursued or proved his ownership claim over the subject property or house in any forum. The learned trial court dismissed the appellant's second application under Order VII Rule 11 CPC. Feeling aggrieved, the petitioner filed a revision petition in the Court of learned ADJ-IV, Swabi, which was dismissed, hence, the instant petition.
3. Preliminary arguments heard and record gone through.
4 Perusal of the record would reveal that the facts narrated above are mostly arising out of the second application filed by the petitioner, while the written statement so submitted by the petitioner does not disclose or narrate the story developed in the above stated application. It is also an admitted fact that earlier the application of the petitioner was dismissed under the same provision of the law but the petitioner in his subsequent application for rejection of the plaint has raised some new factual developments during the subsistence of the lis between the parties however all such new facts that have been narrated in the second application under order VII rule 11 can only be proved after recording pro and contra evidence. It is also admitted proposition of law that the plaint can be rejected at any time if its falls under the ambit of Order VII Rule 11 but in the present case the ground so raised by the petitioner is subject to evidence, series of documentary evidence has been annexed with the application for rejection of the plaint. All the relevant documents can only be brought on record by recording the proper statement of the plaintiff or other relevant PWs. Under the mandate of Order VII Rule 11, a plaint can only be rejected if it does not disclose cause of action, disclosing cause of action and having cause of action are two different phenomena. A plaint can only be rejected when it does not disclose any cause of action while the word having cause of action lead to inference of recording evidence. Reliance can be placed upon the case of `Shamim Nasir Khan Vs. Mst. Asmat Ara and 06 others' reported in PLD 2002 Karachi 408. The relevant para is being reproduced hereunder: Plaintiffs having no cause of action is something different from the plaint disclosing no cause of action. Whether the plaintiff has a cause of action or not can only be determined on the basis of evidence. It could be rejected under Order 7, rule 11, C.P.C. only in case disclose a cause of action.
5. So the controversy between the parties in the instant case is as such which cannot be resolved without recording pro and contra evidence.
6. For what has been discussed above, the writ of the petitioner is bereft of any merits and is hereby dismissed in limine.