1. This appeal is directed against the judgment and decree passed by the learned Additional District Judge, Kahuta Camp, Dhirkot dated 25-7-2001, whereby the appeal filed by the appellant against the judgment and decree of the learned Civil Judge, Dhirkot was dismissed, and the judgment and decree passed by the said Court was maintained.
2. The relevant and necessary facts for the disposal of the instant appeal are, that the appellant (plaintiff) brought a suit for declaration in the Court of Civil Judge, Dhirkot. It was averred by him that the land measuring four Kanals and twelve Marlas comprising Survey No.899, situated in village Makhyala, Tehsil Dhirkot was owned by respondent No. 1 (who was defendant No. 1 in the suit). He mortgaged this land to the predecessor-in-interest of respondents (defendants) Nos. 2 to 12 and husband of respondent (defendant) No.14 late Raja Ali Mard Khan in lieu of Rs.5,000 on 10-3- 1975. The mortgage deed contained a stipulation, that the mortgagee shall repay the mortgaged money within the period of one year and re---obtained the possession of land. In case he fails to pay and obtain the possession of the land, then this mortgagee shall be deemed to be a sale. He could not repay and obtain the possession within the aforesaid stipulated period of one year, according to the terms of mortgage deed. In this way, the mortgage was converted into a sale.
3. The late Ali Mard Khan exchanged the land measuring five Kanals and seven Marlas comprising Survey Nos. 900, 800 and 898 with the plaintiff. He handed over the said land to him and in exchange, obtained the land measuring ten Kanals eight Marlas comprising Survey Nos. 931, 932, 931-min and 932-min, as the land in exchange given to the plaintiff was less than ten Kanals and eighteen Marlas, therefore Ali Mard Khan also transferred the remaining land from the land, which he obtained through mortgage from respondent No. 1 (defendant No. 1). He executed an agreement in favour of plaintiff on 26-8-1984 and promised that he shall transfer the said land through sale-deed within the period of two years. On the basis of this agreement deed dated 24- 8-1984, the plaintiff was placed at the rank of Ali Mard Khan subsequently, he did not transfer the same land and Raja Ali Mard Khan died. The plaintiff has made improvement on the said land. It was craved that a decree for declaration may be passed in favour of the plaintiff and it may be declared that according to contents of the mortgage deed dated 10-3-1975, and agreement deed dated 26-8-1984, it was a sale-deed and on the basis of aforesaid two deeds, the plaintiff was owner of the land comprising Survey No.891 measuring four Kanals, seventeen Marlas, situated in village Khalyana, Tehsil Dhirkot, and the defendants have no concern with this land. The defendants should restrain from trespassing into the aforesaid land. They should also restrain from transferring the said land to any other person.
4. An application was moved by the defendants, under Order 7, rule 11 of C.P.C. For rejection of plaint.
5. The learned Civil Judge after hearing both the parties, rejected the plaint vide judgment dated 24- 8-2000 on the ground, that the contents of the plaint did not disclose the cause of action.
6. Moreover, there are no chances of success of suit. Feeling aggrieved from the aforesaid judgment of the learned Civil Judge, the appellant filed an appeal in the Court of learned Additional District Judge, which was dismissed by him. The instant appeal has been filed against the said judgment of the Additional District Judge.
7. The learned counsel for the appellant argued that the learned Civil Judge has wrongly rejected the plaint. He submitted that the plaint of the present appellant clearly disclosed the cause of action, therefore, the learned Civil Judge was not competent to reject the plaint under Order 7, Rule 11 of C.
8. P. C.
9. While controverting the arguments of the learned counsel for the appellant, the lea med counsel for respondents vehemently argued that both the judgments of the lower Courts are based in sound, cogent and sagacious reasoning. These do not require any interference. He submitted that once a mortgage is always mortgage, therefore, it could not be said that on the basis of mortgage, Ali Mard Khan became owner of the land, as it was not redeemed within the stipulated period. He further submitted that the suit of the plaintiff has to be dismissed ultimately and it has no cause of action at all. Both the lower Courts have rightly rejected the plaint. He referred PLD 1982 Azad J&K 79 and PLD 1997 Azad J&K 11 in support of his contention. It was next maintained by him that when it is a law that, once a mortgage is always mortgage, then the suit of the appellant was also barred under this law, therefore, it was to be rejected under Order 7, rule 11 (d) of C.P.C.
10. I have heard the learned counsel for the parties, perused the record and have given my utmost muse to the respective arguments, advanced by the learned counsel for the parties.
11. The primary question requiring determination is whether the plaint was rejected on the ground that it did not disclose the cause of action or it was rejected under Order 7, rule 11(d) of C.P.C., as it was barred by law. The perusal of the judgment of both the Courts shows that it was rejected on the ground that the plaint did not disclose the cause of action. For having proper perception, I would like to reproduce the relevant portion, of Judgment of learned Civil Judge, whereby the plaint was rejected, which is as under:-- The aforesaid judgment of the learned Civil Judge clearly contained that the learned Civil Judge had rejected the plaint on the ground that its contents did not disclose the cause of action and it has no chance of success, therefore, it could not be said that the suit was rejected on the ground that it was barred by law.
12. Now, the next question emerges that how at this stage, it can be determined that the plaint disclosed the cause of action or not?
13. The criteria laid down for determining as such is that the Court has to confine itself only to the extent of averments of the plaint and has to presume the contents of plaint as true. The Court cannot go beyond the same and if after considering the contents of the plaint as true, finds that even then, no relief could be given to the plaintiff then it shall be deemed that it did not disclose the cause of action and it has to be rejected. This view finds support from PLD 1992 Kar. 75, which reads as under:-- "The accepted principles for the rejection of the plaint is that the Court has to confine itself only to the averments made in the plaint and has to take the contents thereof to be true and cannot go beyond the same. If on taking the averments made in the plaint, if finds the plaint to be barred by law, the Court can reject the plaint, but cannot do so by resolving the contested facts. "
14. Now, in the light of the aforesaid judgment of Karachi High Court, the averments of the plaint have to be treated as true and if same are treated as true, then definitely a relief could be given to the plaintiff, therefore, it could not be said that it did not disclose any cause of action.
15. As the contention of the learned counsel for the respondents is concerned that once a mortgage is always mortgage. It could not be considered, while invoking the powers under Order 7, rule 11 of C.P.C., because for doing as such. The averment of the plaint has to be taken true, that on the failure of defendant to redeem the mortgage he had become owner.
16. As the contention of the learned counsel for the respondents is concerned that even otherwise, the plaint was rejected on the ground that it was barred by law has no substance for the reason that the word 'law' used in Order 7, rule 11(d) of C.P.C. Means written law or statute law. This view finds support form PLD 1990 Lah. 222 and PLD 1987 Quetta 189. A suit can only be rejected under Order 7, rule 11(d) of C.P.C., where the perusal of the plaint shows that the relief claimed by the plaintiff was barred under any provision of law or a suit on the face of it was incompetent.
17. Now, the question arises, whether the suit was barred by any law?
18. Any law means, the provision of any substantive law. There is no such provision under which the present suit was barred. As the contention of the learned counsel for the respondents is concerned, that once a mortgage is always mortgage. It is not a provision of any law, but it is a maxim, therefore the suit could not be rejected on the ground that it was barred by law. Both the lower Courts have wrongly rejected the plaint. The case-law referred by the learned counsel for the appellant has no bearing on the facts of the present case.
19. The upshot of the above discussion is that this appeal is accepted and the judgments and decrees passed by both the lower Courts are hereby set aside and the case is remanded to the trial Court with the direction to proceed under law.