IN THE HIGH COURT OF SINDH AT KARACHI

 

Present: Adnan-ul-Karim Memon and Agha Faisal, JJ.

 

High Court Appeal 425 of 2016

 

Asif Seemab Sindhu

Versus

Administrator Pakistan Defence Officers Housing Authority

&Others

 

 

For the Petitioner                   :         Mr. Farhan-ul-Hassan, Advocate.

 

For the Respondents  :         Mr. Malik Altaf Javed, Advocate

 

Date of Hearing           :         13.08.2018

 

JUDGMENT

 

Agha Faisal, J:     The present appeal assails the order of learned Single Judge dated 29.11.2016 in Suit 242 of 2014 (“Impugned Order”), whereby the plaint filed by the present Appellant was rejected under Order VII Rule 11, CPC.

 

2.            Mr. Farhan-ul-Hassan, learned counsel for the Appellant, submitted that the Impugned Order was not sustainable in law and his arguments in such regard are encapsulated and presented in chronological order herein below:

 

i.             It was submitted that the Appellant is an employee of the Pakistan Defence Officers Housing Authority (“DHA”), Respondent No.1 herein, and had filed Suit No. 242 of 2014 (“Suit”) against the Respondents, wherein multiple prayers were made inclusive of without limitation those pertaining to eviction from official accommodation, pertaining to basic pay scale and for payment of salary on the basis of the adjustment of basic pay scale with effect from the time when the correct pay scale was required to have been implemented.

 

ii.            It was argued that the objections, as to maintainability of the Suit, were raised by the learned counsel for the Respondents and in pursuance thereof, the learned Single Judge was pleased to reject the plaint in the Suit and hence, this appeal.

 

iii.           Learned counsel placed reliance upon a Division Bench judgment of this Court in the case of Mst. Nishat Ishaq vs. Amjad Khan & Others reported as 2014 CLC 71 (“Nishat”) to bulwark his contention that a plaint is a suit could not be rejected in piecemeal and hence notwithstanding a determination with respect to the non-maintainability of some constituents of the prayer clause the suit would survive if other independent relief was sought in the said plaint.

 

3.            Mr. Malik Altaf Javed, advocate, opened the case for the Respondents and supported the Impugned Order. The submissions of the learned counsel are summated and delineated herein below in seriatim:

 

i.             It was submitted that the relationship between the Appellant and DHA is of master and servant and no relief, as sought by the Appellant, could be granted to him and that the only remedy available to the Appellant would be that for damages.

 

ii.            It was next submitted that plaint was rightly rejected and the Court was rightly disinclined to consider the question of consequential relief if the main relief could not be granted.

 

iii.           It was, therefore, submitted that the Impugned Order was rendered in due consonance with the law and hence, the present appeal is liable to be dismissed.

 

4.            We have heard the respective learned counsel and have also had the benefit of perusal of the record. The issue to address is whether the plaint in the Suit was lawfully rejected in the present facts and circumstances. In order to initiate this discussion it may be appropriate to reproduce the contents of the prayer clause of the plaint filed in the Suit:

 

“A)     To declare that the Inter Office Note dated 24.12.2013 issued by the Defendant No.3, together with referred amendment of Para-7 of Accommodation Policy 2004 vide AP&R Branch ION No.DHA/AP&R/Accn Policy dated 9 Dec 2013 are illegal, unlawful, ineffective, malafide, discriminatory, nullity in the eye of law, against the principle of natural justice, null and void ab-initio.

 

B)      To declare that Plaintiff may retain the accommodation provided by the Defendants till after entitlement period of his retirement date and the same cannot be changed by recent amendment made with malafide intentions and ulterior motives.

 

C)      To declare that the Plaintiff is entitled to draw his monthly Salary on the revised Basic Pay Scales-2011 BPS-18 [20,000-1,500-50,000] w.e.from 1.7.2011 and onwards, with all back benefits.

 

D)      The Defendants to revise the Basic Pay Scales of the Plaintiff being belongs to teaching staff, as has been revised basic pay scales of other Departments/Branches of DHA, and pay the monthly Salary to the Plaintiff in the light of revised Basic Pay Scales-2011 BPS-18 [20,000-1,500-50,000]w.e.from 1.7.2011and onwards, with all back benefits.

 

E)      To restrain the Defendants from removing the Plaintiff from the accommodation till after entitlement of his retirement date and so also withholding his Salary, Bonus, Annual Increments, Medical Facility, Official Club Membership and House Maintenance and/or effecting his current position, in any manner whatsoever.………”

 

5.            It is apparent from the foregoing that the relief claimed falls under two distinct classifications; the first segment comprises of the Appellant’s claim in respect of the accommodation policy of DHA and the second segment pertains to the Appellant’s asserted entitlement to a basic pay scale distinctive to that which was being applied thereto. This factum is also recognized by the learned single Judge in the Impugned Order wherein it is recorded that “Though in Suit Nos. 242, 521 & 522 of 2014, there are other grounds raised in the plaint as well as prayers to that effect, however, the learned counsel for the plaintiff has not made any submission to that effect and has only confined his arguments in respect of the accommodation policy and its retention by the plaintiffs till retirement.”

 

6.            It is observed, with utmost respect to the learned Single Judge, that the Impugned Order was predicated entirely upon the issue of the accommodation policy and the dispute regarding the basic pay scales was not addressed in its required perspective. It is also deemed erroneous to disregard the additional grounds and prayers, contained in the plaint, for the purposes of determining an application under Order VII Rule 11 CPC on the grounds that no arguments were advanced in regard thereof at a hearing.

 

7.            The development of the contemporary law with regard to Order VII Rule 11 CPC has been deliberated upon in progressive detail by the honorable Supreme Court of Pakistan, in the case of Haji Abdul Karim & Others vs. Messrs Florida Builders (Private) Limited reported as PLD 2012 Supreme Court 247Haji Abdul Karim”), and the guiding principles determined therein have been illumined as follows:

 

“12.    After considering the ratio decidendi in the above cases, and bearing in mind the importance of Order VII, Rule 11, we think it may be helpful to formulate the guidelines for the interpretation thereof so as to facilitate the task of courts in construing the same.

          Firstly, there can be little doubt that primacy, (but not necessarily exclusivity) is to be given to the contents of the plaint. However, this does not mean that the court is obligated to accept each and every averment contained therein as being true. Indeed, the language of Order VII, Rule 11 contains no such provision that the plaint must be deemed to contain the whole truth and nothing but the truth. On the contrary, it leaves the power of the court, which is inherent in every court of justice and equity to decide or not a suit is barred by any law for the time being in force completely intact. The only requirement is that the court must examine the statements in the plaint prior to taking a decision.

          Secondly, it is also equally clear, by necessary inference, that the contents of the written statement are not to be examined and put in juxtaposition with the plaint in order to determine whether the averments of the plaint are correct or incorrect. In other words the court is not to decide whether the plaint is right or the written statement is right. That is an exercise which can only be carried out if a suit is to proceed in the normal course and after the recording of evidence. In Order VII, Rule 11 cases the question is not the credibility of the plaintiff versus the defendant. It is something completely different, namely, does the plaint appear to be barred by law.

Thirdly, and it is important to stress this point, in carrying out an analysis of the averments contained in the plaint the court is not denuded of its normal judicial power. It is not obligated to accept as correct any manifestly self-contradictory or wholly absurd statements. The court has been given wide powers under the relevant provisions of the Qanun-e-Shahadat. It has a judicial discretion and it is also entitled to make the presumptions set out, for example in Article 129 which enable it to presume the existence of certain facts. It follows from the above, therefore, that if an averment contained in the plaint is to be rejected, perhaps on the basis of the documents appended to the plaint, or the admitted documents, or the position which is beyond any doubt, this exercise has to be carried out not on the basis of the denials contained in the written statement which are not relevant, but in exercise of the judicial power of appraisal of the plaint.”

 

8.            It is apparent from the foregoing that for consideration of an application under Order VII Rule 11 CPC it is the content of the plaint that is to be given primacy. The determination required to be undertaken is to fall squarely within the parameters of whether the suit appears from the statement in the plaint to be barred by any law. Respectfully, the learned single Judge has rejected the plaint in the presence of grounds and prayers contained in the plaint, exclusive to the issue whereupon findings were rendered, on the unsustainable ground that no arguments were advanced in such regard by the learned counsel for the plaintiff (present appellant) during a hearing.

 

9.            Therefore, in the presence of independent additional grounds and prayer clauses, not found to be barred in law by any statement in the plaint, the rejection of a plaint could not be sustained in law. We are fortified in this regard by a Division Bench judgment of this Court dated 01st September 2010 in HCA 203 of 2009 titled Muhammad Amin Lasania vs. M/s. Ilyas Marine & Associates (Pvt.) LimitedAmin Lasania”), wherein it was held as follows:

 

“a plaint cannot be rejected in part. Therefore, even if the main or primary cause of action is barred, and it is only a secondary (and clearly less important) cause of action that is not, the plaint cannot be rejected in respect of that part which relates to the primary cause of action.”

 

10.         Amin Lasania was followed by another Division Bench judgment of this Court in Nishat, wherein it was held as follows:

 

“It is also well-accepted principle for deciding an application under Order VII, Rule 11, CPC that plaint in a suit cannot be rejected in piecemeal.”

 

11.         The judgment of the honorable Supreme Court titled Jewan & Others vs. Federation of Pakistan & Others (reported as 1994 SCMR 826), discussed in Haji Abdul Karim, articulated the principle that when hearing an interim application all material available on record may be evaluated but in determination of whether a plaint was liable to be rejected only the plaint and its accompaniments were required to be examined.

 

12.         It is the considered opinion of this Court, and with utmost respect to the learned Single Judge, that in the present facts and circumstances, applying the ratio of the judgments cited supra, rejection of the plaint under Order VII Rule 11, CPC, 1908, was not warranted and hence the Impugned Order is hereby set aside.

 

13.         In view of the reasoning and rationale contained herein, the present high court appeal is allowed and the matter is remitted to the learned single Judge, for further proceedings in Suit 242 of 2014, in accordance with law and in terms of, and subject to, this decision.

 

Judge

Judge