ZIA PERWEZ, J.- By this application under Order VII, Rule 11, CPC defendants seek rejection of the plaint.
2. Mr. Muhammad Sharif, learned counsel for defendant No. 1 (i to viii), in support of this application under Order VII, Rule 11, CPC, argued that this case pertains to title of an industrial plot bearing No , Section 7-A, KDA Scheme No., 23, Korangi Township, ad-measuring 2666.666 sq.Yards. The suit is instituted by a partnership firm as plaintiff namely Muhammad Sadiq Muhammad Salim and the firm has ceased to exist as a result of death of one of the partner by operation of law. After referring to the prayers in the plain he further contended that no document of title in favour of the plaintiff has been filed in support of the prayer of declaration; (ii) that after the dissolution of firm as a consequence of death of one of the partners the present partners are not competent to seek the relief as prayed; (iii) that the suit pertains to a transaction made in 1978 which attracts the provisions of Limitation Act which provide maximum period of three years from the date of cause of action and as such the suit is time-barred; and (iv) that the facts and circumstances of the case calls for exercise of suo.Motu power of the Court to reject' the plaint. To elaborate his contentions learned counsel has referred to Section 17 of the Registration Act alongwith Section 5 of the Transfer of Property Act to show that the title to immovable property for value of over Rs.100/- can only be transferred by execution of a registered document and mere fact of payment of taxes does not create title to property. In support of his contentions he has placed reliance on unreported judgment in HCA No. 238/1999 by a Division Bench of this Court and upheld by the Hon'ble Supreme Court in CPLA No. 81-K/2001, and on the cases of Metro Co-operative Housing Society Limited v.
Bonanza Garments industries (Pvt.) Ltd. (1996 M LD 593), N.E.D. University of Engineering and Technology 1. Tariq All and 2 others (PLD 1993 Kar. 626), Habibur Rehman v. Mst.
Wandania and others' (PLD 1984 S.C. 424) and Shuja-ul-Mulk v. Firm Abdul Ghafoor-Abdul Qadim (PLD 1964 Pesh. 110). On the point of limitation learned counsel has referred to Section 9 of the Limitation Act and argued that as the plaintiff is no longer in possession of the premises the provision of Section 9 of the Limitation Act are attracted and the plaint is liable to be rejected at this stage.
3. Mr. Mazharul Haque, learned counsel for the plaintiff, has opposed the contentions of Mr. Muhammad Sharif, learned counsel for the defendant. He has referred to the general allegations made in the application and pointed out that no specific fact making the plaint liable to rejection has been specified. His contentions are that for the purpose of application of the provisions of Order VII, Rule 11, CPC the contents of the plaint are required to be examined and after referring to the contents of the plaint and the annexures thereto learned counsel has aptly explained that there exists a contract of a continuing nature between the parties; that the partnership firm is very much in existence and is carrying on business as the last entry made by the Registrar of Firms was effected on 11.9.2002 whereby the fact of expiry of one of the partners Muhammad Sadiq son of Nazimuddin has been endorsed. His contention is that the registered partnership firm involving more than two partners continues to operate as a result of a contract between the partners evident from the fact that the firm was not wound-up. He further contended that after the fact of existence of partnership firm has been brought on record, the question of examination of the contract to this effect is the matter to be placed before the Court and examined in evidence.
Learned counsel further contended that the present case does not attract the provisions of die Limitation Act as it is not an isolated case of payment of taxes which was being paid by the tenants in the case-law cited by the opposite side but pertains to payment of taxes under a specific contract duly pleaded in the body of the plaint and is again a matter to be decided on the basis of evidence, the case-laws cited by the opposite side is thus distinguishable.
4. After going through the contentions of the learned counsel and a perusal of the record it appears that the partnership firm comprising of more than two partners is still in operation as contract or arrangement amongst the partners to continue the business of the partnership by the surviving partners after the death of one of the partners is apparent from the fact that the firm has not been wound up. Under the present circumstances, a matter to be decided after some evidence is recorded. Likewise the plaintiffs claims to be in possession of all the original documents of title with respect to the property in suit and claimed to be enjoying the same as owners continuously over a period of several decades without any interference till such time as the cause of action for institution of the present suit accrued in the year 2000 as disclosed in the plaint. The object of rejection of plaint is not to shut out case where the plaintiff is in a position to adduce evidence for a decision of his case on merits according to law or to prejudge a decision without affording an opportunity to the plaintiff to place the evidence and record which would be opposed to the principles of natural justice. From the contents of the plain and the annexures filed a prima facie case in favour of the plaintiff has been set forth. The merits of the same are to be considered at the time of evidence and parties are at liberty to propose the relevant issues in support of their respective contentions. The provisions of Order VII, Rule 11, CPC are to be strictly construed and not to be resorted to unless the conditions specified for exercise of such drastic power are satisfied in view of the observation of the Hon'ble Supreme Court in the case of Siddique Khan v. Abdul Shakur Khan (PLD 1984 S.C. 269). in view of the above discussion I am of the humble opinion that this application merits no consideration and is accordingly dismissed.
Matter to come-up on 12.11.2002 for further proceedings.