MUHAMMAD YUNUS SURAKHVI, C.J.---This appeal, by way of leave of the Court, has been directed against the judgment passed by the High Court on 29-7-2002, whereby the revision petition filed by the appellant herein was dismissed.
2. The necessary facts, giving rise to the present appeal, are that Punnu Khan, respondent herein, filed a suit for declaration through his next friend, Raza Ahmed, against the appellant in the Court of Sub-Judge, Sehnsa on 17-6-2000. It was averred in the plaint that a gift-deed was executed in favour of defendant No. 1, Mst. Said Begum, by the plaintiff, Punnu Khan, while he was a lunatic and not competent to execute the gift-deed, therefore, the same be declared as null and void and inoperative as against the rights of the plaintiff. During the pendency of suit, an application was moved by the plaintiff that he is in the illegal confinement of defendant No. 1, therefore, he may be summoned in the Court and set at liberty. The alleged detenu was summoned and the trial Court vide its order dated 29-11-2000 did not find him in the illegal confinement of defendant, Mst. Said Begum. This order was subsequently challenged through a revision petition before the High Court which was ultimately dismissed on 27-3-2001 on the ground that in the impugned order it was nowhere observed by the trial Court that the plaintiff is not a lunatic but the trial Court has only held that the plaintiff is not in illegal confinement of defendant No.1, Mst. Said Begum. It was further observed that the plaintiff has averred in the plaint that Punnu Khan was not a lunatic which tact was yet to be proved in the case. It was further observed that no issues have been framed as yet on the aforesaid point; the issues will be framed by the trial Court and the plaintiff can prove the same. The suit filed by Punnu Khan through his next friend, Raza Ahmed, was resisted by Mst. Said Begum, appellant herein, by filing the written statement. The trial Court on 5-12-2000 framed as many as 17 issues in the light of the pleadings of the parties. However, on 27-2-2002 with regard to issues it was ordered by the trial Court that the arguments would be heard firstly on the legal issues which are Issues Nos.7, 8 and 9. For the sake of clarity Issues Nos. 7, 8 and 9 reproduced below:-- "7. 'Whether the suit' of plaintiff in the present shape is not maintainable" OPD:
8. Whether the plaintiff has any locus standi to institute the present suit and he did not come in the Court with clean hands rather he has filed the suit for his own benefit? OPD; and
9. Whether the plaintiff has no cause of action and his suit is liable to be dismissed? OPD.
On the same day, i.e. 27-2-2002 the arguments were heard on the aforesaid issues and it was observed that after recording the evidence of the parties the final verdict could be given on the aforesaid issues. Against the order dated 27-2-2002 Mst. Said Begum filed a revision petition in the High Court which was dismissed on 16-5-2002 by the High Court observing as follows at page 2, para.2 of the judgment:- "The learned counsel for the petitioner contended that it was enjoined upon the learned Civil Judge to decide Issue No.9 regarding the cause of action. He did not press the revision petition to the extent of Issues Nos. 7 and 8. He only wants that Issue No.9 may be decided before recording the evidence. The learned counsel for non-petitioner No. 1 has no objection on this. "
Issue No.9 was to the following effect:- "Whether the plaintiff has no cause of action and his suit is liable to be dismissed? OPD."
On 29-6-2002 the trial Court heard the arguments of the learned counsel for the parties on the aforesaid issue and observed that the plaintiff had the cause of action as such the plaint cannot be rejected. It was further observed by the trial Court that the issue would be thrashed out after recording the evidence of both the parties. This order of the trial Court was challenged through a revision petition before the High Court which was dismissed vide the impugned order of the High Court dated 29-7-2002. It is the aforesaid order of the High Court which is the subject-matter of present appeal.
3. In support of appeal it was vehemently contended by Raja Muhammad Siddique, the learned counsel for the appellant, that the learned Judge in the High Court failed to read and appreciate the plaint as a whole and to take into consideration the admitted fact of appointment of next friend in paragraph No. 12 of the plaint. The learned counsel contended that the aforesaid paragraph of plaint cannot be separated from the other parts of the plaint and the validity of appointment of next friend directly comes under consideration while determining the cause of action, the decision of which requires no evidence from the other side. The learned counsel contended that the learned Judge Family Court had no jurisdiction to issue the certificate to the effect that Punnu Khan was a lunatic. The learned counsel also contended that when Punnu Khan was called before the Court regarding the application of his illegal detention, he appeared before the Court and replied the questions put to him. From the reply of the questions every one can come to the conclusion that Punnu Khan is not lunatic rather he is a sane person. On his behalf the suit has been filed by Raza Ahmed as his next friend in order to get the property in dispute.
4. Controverting the arguments raised by the learned counsel for the appellant, Mr. Muhammad Yunus Tahir, the learned counsel for the respondent, submitted that the main grouse of the learned counsel for the appellant seems to be that Raza Ahmed as a next friend of Punnu Khan was not competent to file the present suit as Punnu Khan was a sane person. The learned counsel also contended that an issue to this effect was also framed by the trial Court which was Issue No.7 and the arguments were heard on the said issue alongwith Issue No.8. On both these issues the findings of the trial Court went against the appellant, Mst. Said Begum. Being aggrieved by the adverse findings, she filed a revision petition before the High Court which was also dismissed and it was observed by the High Court that the counsel for the appellant, Mst. Said Begum, did not press the revision petition to the extent of Issues Nos. 7 and 8 and observed that he only wants that Issue No.9 may be decided before recording the evidence. The learned counsel for respondent, Punnu Khan, agreed with the submission of the counsel for the appellant herein. Thus the revision petition was dismissed and the case was sent back to the trial Court. As stated earlier, the trial Court heard arguments 6n Issue No.9 and observed that the plaint cannot be rejected as the cause of action is to be determined on the, basis of allegations made in the plaint and not on the basis of objections taken in the written statement. The order of trial. Court was challenged before the High Court which was also upheld vide the impugned order dated 29-7-2002.
5. We have given our due consideration to the arguments advanced by the learned counsel for the parties and perused the relevant record with utmost care. We have noticed that in all the Courts below much stress has been laid on behalf of the appellant on the point that the plaintiff, Punnu Khan, has no cause of action as he is a sane person, therefore, the suit on his behalf by Raza Ahmed showing Punnu Khan as a lunatic person is not maintainable; thus, the plaint should be rejected as the same does not disclose any cause of action. To this contention of the learned counsel for the appellant we will deal in the later part of this judgment. However, in the first instance we may take up Issues Nos. 7 and 8 which are most vital for the purpose of disposal of the suit and the same for the sake of convenience are again reproduced below:-- "7. Whether the suit of plaintiff in the present shape is not maintainable? OPD.
8. Whether the plaintiff has any locus standi to institute the present suit and he did not come in the Court with clean hands rather he has tiled the suit for his own benefit? OPD."
On these issues the parties addressed their arguments and the findings of the trial Court went against Mst. Said Begum, appellant herein. In the revision petition filed before the High Court, the counsel for Mst. Said Begum voluntarily submitted that he did not want to press the revision petition to the extent of Issues Nos. 7 and 8 rather he wants that Issue No.9 may be decided before recording the evidence. His prayer was accordingly accepted from the opposite side. Thus, the revision petition filed by Mst. Said Begum against the order of trial Court dated 27-2-2002 was dismissed vide the order of High Court dated 16-5-2002 and the findings thus recorded on Issues Nos. 7 and 8 became final as no further appeal was filed in the Supreme Court. The trial Court then heard the parties on Issue No.9 which pertains to the cause of action and its findings also went against the appellant, Mst. Said Begum. Even in the High Court the findings recorded by the trial Court were upheld. Alternatively Raja Muhammad Siddique, the learned counsel for the appellant, contended that as the learned Judge Family Court had no jurisdiction to issue the certificate regarding the lunacy of Punnu Khan, therefore, Punnu Khan by filing a suit through his next friend, Raza Ahmed, had no cause of action. He further contended that the learned Judge Family Court was not competent to issue the certificate of lunacy in favour of Punnu Khan as a Guardian Judge.
The power to issue lunacy certificate vests in the District Judge under the Lunacy Act, therefore, it needs no evidence to establish that Punnu Khan was a sane person and the suit filed, by him through his next friend was liable to be dismissed.
6. It may be pointed out that it is a settled principle of law that the averments made in the plaint are presumed to be true and whatever is asserted in the written statement, that cannot be looked into for the purpose of determining the cause of action. Our aforesaid view is supported by plethora of rulings; out of them only a few are referred.
"It is incumbent upon the Court to apply its mind to the averments of facts made in the plaint and conclude as to whether presuming the averments to be true, it can grant the relief to the plaintiff or not. In case it is satisfied that on such presumption or on proving the allegations, relief can be allowed, it shall not reject the plaint by invoking provisions of rule 11."
PLD 1976 Karachi 21 it was observed as follows:-- It is an axiomatic principle of law that while considering the question of cause of action, the Court should apply its mind to the facts given in the plaint and not to any other matter and it has to presume that every allegation made in the plaint was true. It could therefore, reject the plaint, if it came to the conclusion that if all the allegations are proved, the plaintiff would not be entitled to any relief whatsoever further, if there is any vagueness about the pleadings, the proper course is to order the party to remove the vagueness and not to reject the plaint."
1983 CLC 1165 it was observed by this Court as follows:-- .
"For the purpose of determination whether the plaint discloses a cause of action or not the Court has to presume that every allegation made in the plaint is true. Therefore, the power to reject a plaint under this rule must be exercised only if the Court comes to the conclusion that even if all the allegations are proved the plaintiff would not be entitled to any relief whatsoever."
PLD 1983 Lah. 278 it was observed that in order to reject a plaint, the Court cannot go beyond the statements made in the plaint itself.
7. We have also noticed that the impugned certificate issued by the learned Judge Family Court, though beyond jurisdiction is still alive and the same has not been challenged by the appellant. We have observed in so many cases that even if there be avoid order, it must be challenged within a reasonable time if it adversely affects the interests of a person. In a case reported as Muhammad Ilyas Khan and 5 others v. Sardar Muhammad Hafeez Khan and 4 others 2002 PLC (C.S.) 1282 it was observed that the petitioners slept over the matter, thus their indolence and negligence cannot be excused. Even a void order adversely affecting the interest of a person should be challenged within a reasonable time.
1997 PLC (C.S.) 1115 the same principle was reiterated that a void order must be challenged if it is intended to get rid of its effects.
"If a person comes to know of a void order which adversely affects him but still he does not challenge it within a reasonable time, the Courts may validly refuse to ignore it on the ground of laches, acquiescence or estoppel. "
8. In the light of what has been stated above, finding no force in this appeal, the same stands dismissed with costs.