IN THE IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Civil Revision Appln.No.66 of 2010

Applicants                        :     Through Mr.Ghulam Dastagir Shahani, Advocate

Respondents                  :       Through Mr.Habibullah Ghouri, Advocate

for private respondent,

                                                Mr.Ameer Ahmed Narejo, State Counsel

Date of hearing              :       27.08.2018

Date of order                :        14.09.2018

O R D E R

IRSHAD ALI SHAH, J.-The facts in brief necessary for disposal of instant civil revision application are that; the applicants filed a suit before learned Senior Civil Judge, Kandhkot, for Declaration, Permanent Injunction and Specific Performance of Contract, on the basis of pleadings that; they have purchased the suit land (as is detailed in the plaint) with possession from private respondent for valuable consideration by way of an agreement to sale, executed on 27.05.2007, which was to be finalized on 20.02.2010, after full payment of the sale consideration. Subsequently, they came to know that; the private respondent is going to sell the suit land to someone else, which provided them a cause of action to file the instant suit before learned trial Court seeking the following relief;

A).     To declare that all the actions of defendants taken or intended to be taken for dispossessing the plaintiffs from the suit land i.e 50-0 acres situated in Deh Akhero, Taluka Kandhkot, the S.No. are shown in the 3^rd para of plaint and further to declare that selling the suit land to other persons and no honouring the sale transaction are illegal, malafide, fraudulent, null, void and against the provision of law and natural justice.

B).     To direct the defendant No.1 to honour to sale transaction and mutate the Khatta to the plaintiffs after receiving the last/fourth installment from the plaintiffs in the name of plaintiffs failing which the Nazir of this Honourable Court may be directed to mutate the Khatta in favour of plaintiffs before the defendant No.2.

C).     To grant permanent injunction against the defendants restraining them from dispossessing the plaintiffs from the suit land through themselves or through their friends or any other agency. 

2.                On application U/O 7 Rule 11 CPC which was filed by the private respondent, the plaint of the suit so filed by the applicants was rejected by learned Senior Civil Judge Kandhkot vide order dated 11.04.2009, which was impugned by the applicants by way of preferring an appeal, it was dismissed by learned Additional District Judge, Kandhkot, vide judgment dated 28.08.2010. The applicants being aggrieved of above said orders of learned trial and Appellate Court have impugned the same before this Court by way of instant Civil Revision Application.              

3.                It is contended by the learned counsel for the applicants that; the suit was filed on the basis of agreement to sale, its plaint was not liable to rejection, as according to him even an oral agreement to sale could be enforced. By contending so, he sought for reversal of above said order(s) with direction to learned trial Court to dispose of the same on merits after framing of the issues and recording evidence.

4.                It is contended by learned counsel for the private respondent that; the suit was filed by the applicants, on the basis of invalid agreement to sale, it was incompetent and was rightly buried in its inception by learned trial and Appellate Court. By contending so, he sought for dismissal of the instant Civil Revision Application.

5.                Learned State Counsel was fair enough to say that no public interest is involved in the instant litigation.

6.                I have considered the above arguments and perused the record.

7.                No substance is found in contention of the learned counsel for the applicants that; since the suit was filed on the basis of agreement to sale, hence its plaint cannot be rejected U/O 7 rule 11 CPC. The provision of Order 7 rule 11 CPC does not place any such restriction, rather it lays that an incompetent suit must be buried in its inception, if it is found to be falling within the ambit of clause (d) of rule 11 of Order 7 of the CPC, which reads as under;

”where the suit appears from the statement in the plaint to be barred by any law”.

 8.               Normally, the averments made in the plaint are to be taken true and correct but this would not operate as a bar in exercise of the judicial power of appraisal of the plaint, which includes examination of document(s), attached thereto, towards legality thereof; even the developed legal proposition permits taking into consideration the un-denial facts and document(s), if produced by the defendants. The judicial power of appraisal of plaint even would permit the Court to presume existence of certain fact, if so is appearing from contents of plaint or document(s), attached thereto. Reference in that respect may well be placed upon the case of Abdul Karim v. Florida Builders (Pvt) Ltd. (PLD 2012 SC 247), wherein it is observed by the Honourable Supreme Court of Pakistan as under;

“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 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 whether 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 appears 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 obliged 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 examine 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.

9.                The scope of provision of Order 7 rule 11 CPC stood widened by the time because an exception was / is always likely to prejudice the object thereof as well to guarantee, available to every citizen towards his properties or statues by way of long and pain-taking litigation. Reference in that respect may well be placed upon case of Noor din & another v. ADJ, Lahore and others (2014 SCMR 513) wherein it is observed by the Honourable Supreme Court of Pakistan as under;

“5. …The object of the powers conferred upon the trial court under Order VII, Rule 11 CPC is that the Court must put an end to the litigation at the very initial stage when on account of some legal impediments full-fledged trial will be a futile exercise”.

10.              Admittedly, the private respondent is one of the co-sharer in the suit land. The suit land is undivided. None of other co-sharer is executant to the alleged agreement to sale, which makes the very sale agreement to be invalid because such act would always be un-authorized for want of competence within meaning of Section 11 of the Contract Act, 1872 which reads as under;

“11.  Who are competent to contract? Every person is competent to contract who is of the age of majority ……, and is not disqualified from contracting by any law to which he is subject.”

 11.             Be that as it may, if for the sake of arguments, it is believed that the private respondent executed the sale agreement for himself and on behalf of his co-sharers in the suit land; even then it could not be enforced legally, as it is not signed by two attesting witnesses as per requirement of Article 79 of the Qanun-e-Shahadat Order, 1984, which reads as under;

“Article-79. Proof of execution of document required by law to be attested. If a document is required by law to be attested, it shall not be used as evidence until two attesting witnesses [at] least have been called for the purpose of proving its execution, if there be two attesting witnesses alive, and subject to the process of the Court and capable of giving evidence.”

12.              No doubt, though the law does recognize oral agreement to sale even, but once the written document is claimed then it must be shown to be in accordance with law. Article 17 (2) (a) of Qanun-e-Shahadat Order, 1984, insists that; if a document relating to financial or future obligation is reduced in writing, same must be attested by two men, or one man and two women. Thus, prima facie, the agreement to sale is not executed as per requirement of law. It is well settled principle of law that the party would not only be bound by his pleadings but would not be permitted to prove beyond pleadings and if attempted, such act shall not be considered, therefore, legally the applicants cannot introduce second witness even at later stage of the trial. The reference in that respect may well be placed upon case of Muhammad Iqbal vs. Mehboob Alam (2015 SCMR-21), wherein it is observed by the Honourable Supreme Court of Pakistan as under;

“---O.VI, R.7---Pleadings---Scope---Litigant could not be allowed to build and prove his case beyond the scope of his pleadings”.

13.              Thus the agreement to sale shall fail the required test within mandate of Article 79 of the Qanun-e-Shahadat Order, 1984. Such presumption legally can well be taken even at this stage, being undeniable.

14.              In case of Hafiz Tasaduq Hussain vs. Muhammad Din and others (PLD 2011 SC-241), it was observed by Honourable Supreme Court of Pakistan as under;

“Purpose and object of attestation of document by certain number of witnesses and its proof through them was meant to eliminate the possibility of fraud and purported attempt to create and fabricate false evidence for the proof therefore and thus legislature in its wisdom had established class of documents which were specified in Art.17 of the Qanun-e-Shahadat, 1984”.           

15.              “The expression shall not be used as evidence” until the requisite number of attesting witnesses is examined depict the clear intention of the legislation placing a complete prohibition for using in evidence any such document which is either not attested or attested as per mandated by law and/or if the required number of attesting witnesses are not produced to it. In the instant matter as said above, the sale agreement is attested by a single witness, which has made it to be invalid and the very suit to be incompetent. In that situation, the remand of the matter to learned trial Court for decision on merits after framing of issues and recording of evidence would be unjustified.

16.              It is not disclosed by the applicants in their plaint as to who ascribed the alleged agreement to sale. It is true that the alleged agreement to sale is attested by a Notary Public but there could be made no denial to the fact that the attestation of an agreement to sale by a Notary Public is not the requirement of law, as such Notary Public could hardly be said to be an attesting witness to such agreement. In that respect the reference may well be placed upon case of Zafar Iqbal vs. Sher Muhammad and others (2003 YLR-673), wherein it has been held by Honourable High Court of Sindh as under;

“---A.17---Qanun-e-Shahadat (10. Of 1984), Arts.79 & 17---Sale agreement---Not required to be registered or necessarily attested by the Notary Public---Sole requirement of law was that such agreement should be signed by the parties and be attested by at least two attesting witnesses”.

17.              It is well settled by now that the still born and incompetent suits are to be buried in its inception. The reference in that respect may well be placed upon case of Mst.Farzana Farrukh and others vs. Administrator, Pakistan Defence Officers Housing Authority and others ( 2017 YLR-1275), wherein it is observed by the Honourable  High Court of Sindh as under;

“----O.VII, R. 11---Plaint, rejection of---Scope---Court was bound to see and examine the maintainability of suit as to whether the same was barred by law or for that matter relief being sought could not be granted by the Court---Still-born suit must be buried at its inception---Court had to reject the plaint in such suit without any formal application from the party”.       

18.              In view of the facts and reasons discussed above, it could be concluded safely that the learned Courts below have committed no illegality or jurisdictional error while rejecting the plaint of suit of the applicants which could be made right by this Court by way of instant revision application, it is dismissed accordingly, with no order as to costs.

J U D G E

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