IN THE HIGH COURT OF SINDH, KARACHI

H.C.A. No.323 of 2023

[Abdullah Hussain Haroon & another v. Haider Rashid & others]

PRESENT:

Mr. Justice Arshad Hussain Khan

Mr. Justice Amjad Ali Sahito

Appellants : Through Mr. Abdul Moiz Jafri, Advocate.

Respondents No.1&2: Through Abdullah Azzaam Naqvi, Advocate.

Respondents No.3-5 : Through Abdul Waheed Kanju, Advocate.

Official Respondents : Through Ms. Amna Usman, AAG, Sindh.

Date of hearing : 10.08.2026

Date of Decision : 10.08.2026.

J U D G M E N T

ARSHAD HUSSAIN KHAN, J. This High Court Appeal is directed against the order dated 28.08.2023, passed by the learned Single Judge in Suit No.1712 of 2022 whereby the Appellant’s application (CMA No.17708/2022) filed under Order VII Rule 11 read with Section 151 CPC seeking rejection of respondent’s plaint, was dismissed.

2. Briefly stated, the dispute arises out of multiple interlinked civil suits between the legal heirs of deceased Lady Nusrat Haroon concerning the partition, administration and title of property bearing Plot No. CL-6, Sheet No. 8/9, known as “Seafield”, Abdullah Haroon Road, Civil Lines, Karachi (“the Subject Property”), particularly the validity of an alleged gift dated 16.07.1971 and the subsequent instrument executed in respect thereof (“the Impugned Gift”). The first proceedings were initiated through Suit No.383 of 1986 by the daughters of the deceased seeking partition of the Subject Property, which was dismissed for non-prosecution on 03.05.2011. Thereafter, Appellant No.1 instituted Suit No.1379 of 2011 seeking declaration of title on the basis of the Impugned Gift. Subsequently, the Appellants filed Suit No.1048 of 2022 seeking renewal of the principal lease of the Subject Property, whereas Respondents No.1 and 2 instituted Suit No.1712 of 2022 seeking, inter alia, declaration, administration and partition of the estate and cancellation of the Impugned Gift. The Appellants also instituted Suit No.1536 of 2023 seeking rectification of the record of rights relating to the Subject Property.

3. The essential facts giving rise to the present appeal are that, upon receiving notice of Suit No.1712 of 2022 instituted by the Respondents, the Appellants entered appearance and, besides filing their written statement, moved an application under Order VII Rule 11 read with Section 151 CPC seeking rejection of the plaint, principally on the grounds that the suit was barred by limitation and the principle of res judicata. The application was contested by the Respondents. After hearing learned counsel for the parties, the learned Single Judge of this Court dismissed the said application through the impugned order, giving rise to the present appeal.

The record further reflects that, following the promulgation of the Sindh Civil Courts (Amendment) Act, 2025, the connected suits, including the underlying suit, have since been transferred to the Court of the competent Senior Civil Judge, Karachi (South), for further proceedings in accordance with law.

4. Learned counsel for the Appellants contended that the learned Single Judge erred in dismissing the application under Order VII Rule 11 CPC, as Suit No.1712 of 2022 is ex facie barred by limitation and other legal principles. He submitted that the mother of Respondents No.1 and 2, being Defendant No.3 in the earlier Suit No.383 of 1986, had knowledge of the Impugned Gift through the pleadings therein but never challenged it during her lifetime. Therefore, the present challenge after more than five decades is barred by Articles 91 and 120 of the Limitation Act, 1908, besides attracting Order II Rule 2 C.P.C. and the principle of estoppel under Article 114 of the Qanun-e-Shahadat Order, 1984. He maintained that the suit, though couched as one for declaration and administration, is essentially for cancellation of the Impugned Gift on allegations of fraud, forgery and misrepresentation and is consequently subject to the three-year limitation prescribed under Article 91. He further argued that the learned Single Judge travelled beyond the scope of Order VII Rule 11 CPC by relying upon proceedings in Suit No.1379 of 2011 instead of confining himself to the averments of the plaint. Reliance was also placed upon the affidavits of 1984, registered Relinquishment Deeds of 1988, the alleged possession of the Appellants, and the statutory presumption attached to the old Gift Deed under Article 100 of the Qanun-e-Shahadat Order, 1984. It was further contended that Respondents No.1 and 2 lacked locus standi, that mutation of the Subject Property in favour of all legal heirs was unlawful, and that the female heirs had already received substantial properties from the estate. Lastly, it is contended that the underlying suit constitutes an abuse of the process of Court and prayed that the appeal be allowed and the plaint rejected under Order VII Rule 11 CPC.

5. Conversely, learned counsel for Respondents No.1 and 2, while relying upon the objections/counter-affidavit, supported the impugned order has contended that the learned Single Judge rightly dismissed the application under Order VII Rule 11 CPC. He submitted that, while examining such an application, the Court is ordinarily confined to the averments contained in the plaint, which are to be taken as correct for that limited purpose, and cannot undertake a detailed examination of disputed facts, defence pleas, or documents relied upon by the defendants. According to him, the Appellants, under the guise of seeking rejection of the plaint, are essentially inviting the Court to adjudicate disputed questions touching upon the merits of the controversy without recording evidence. Learned counsel further submitted that the principal objection regarding limitation under Article 91 of the Limitation Act, 1908 involves disputed questions of fact and law, particularly as to when Respondents No.1 and 2, or their predecessor, acquired knowledge of the facts entitling them to seek cancellation of the Impugned Gift. He emphasized that Article 91 does not make mere knowledge of the existence of an instrument the starting point of limitation; rather, limitation commences when the facts entitling the plaintiff to have such instrument cancelled or set aside become known to him. Therefore, the alleged knowledge of the purported gift by Begum Zeenat Safdar Rashid, mother of Respondents No.1 and 2, cannot, without evidence, be treated as sufficient to render the suit time-barred, nor can such knowledge automatically be imputed to Respondents No.1 and 2. It was further contended that the Appellants' reliance upon the proceedings in Suit No.383 of 1986 is misplaced. Although Begum Zeenat Safdar Rashid was one of the defendants therein, the written statements filed by the present Appellants merely referred to an alleged oral gift and did not disclose its material particulars, including the date, witnesses or any written instrument evidencing the same. Thus, whether she had actual or constructive knowledge of the Impugned Gift itself remains a disputed factual question requiring evidence. Learned counsel pointed out that even the proposed issues filed by the Appellants in the underlying suit seek determination of when Begum Zeenat Safdar Rashid acquired knowledge of the alleged gift and whether limitation commenced from such knowledge, which itself demonstrates that these questions require trial and cannot appropriately be determined under Order VII Rule 11 CPC. As regards the dismissal of Suit No.383 of 1986 for non-prosecution under Order IX Rule 8 C.P.C., learned counsel argued that the bar contemplated under Order IX Rule 9 C.P.C. applies to the plaintiffs whose suit was dismissed and does not preclude defendants therein, much less Respondents No.1 and 2, from subsequently asserting their independent rights. The earlier dismissal, therefore, neither extinguished the Respondents' alleged inheritance rights nor barred the underlying suit. He further submitted that the plaint clearly discloses a cause of action by setting out the material facts upon which the Respondents claim declaration, administration, partition and cancellation of the Impugned Gift. Learned counsel also disputed the evidentiary value and legal effect of the affidavits of 1984, the Relinquishment Deeds of 1988 and other documents relied upon by the Appellants, maintaining that their authenticity, effect and relevance are matters requiring proof at trial and cannot form the basis for summary rejection of the plaint. According to him, the very reliance by the Appellants upon their written statements and supporting documents demonstrates that the controversy involves intricate factual and legal issues incapable of determination merely from the plaint. Lastly, learned counsel maintained that the underlying suit raises substantial and disputed questions concerning the validity of the Impugned Gift, knowledge thereof, limitation, inheritance and the respective rights of the parties, all of which require framing of issues and recording of evidence. He, therefore, submitted that the learned Single Judge rightly declined to terminate the proceedings summarily under Order VII Rule 11 CPC and prayed that the instant appeal be dismissed and the parties be left to establish their respective claims and defences before the learned Trial Court in accordance with law. Learned counsel in support of his stance has relied upon the case of Ahmed Ali Talpur v. Sub-Registrar Latifabad, Hyderabad & others [PLD 2025 Supreme Court 302], Haji abdul Karim and others v. Messrs Florida Builders (Pvt) Limited [PLD 2012 Supreme Court 247], Mst. Ramzanu Bibi v. Ibrahim (deceased) through L.Rs. and others [2025 SCMR 955], Mst. Tahira Samina and others v. Javed Saeed Tariq and others [2024 SCMR 24], Media Max (Pvt) Ltd through Chief Executive v. ARY Communication Pvt. Ltd., through Chief Executive and another [PLD 2013 Sindh 555], China Mobile Pakistan Limited through Legal Advisor (South) and another v. Federation of Pakistan through Secretary, Ministry of Information, Technology and Telecommunication and 3 others [PLD 2022 Sindh 319], Mst. Hamida Begum v. Mst. Murad Begum and others [PLD 1975 Supreme Court 624], Muhammad Sharif and 13 others v. Inayat Ullah and 24 others [1996 SCMR 145], Shamshad Ali Shah and others v. Syed Hassan Shah and others [PLD 1964 Supreme Court 143] and Dr. Shabbir Ahmed and 4 others v. Abdul Haleem and 3 others [2000 SCMR 1287].

6. Learned counsel appearing for Respondents No.3 to 5, without advancing any independent arguments, adopted and supported the submissions made on behalf of the Appellants. Learned Assistant Advocate General Sindh, on the other hand, while supporting the impugned order, submitted that the controversy essentially pertains to a private dispute amongst the legal heirs concerning inheritance and title to the Subject Property. She contended that where disputed questions of fact arise, particularly regarding the execution, validity and knowledge of old instruments, such controversies are more appropriately determined after recording evidence in a regular trial before the competent Civil Court rather than through summary rejection of the plaint under Order VII Rule 11 CPC.

7. We have heard the learned counsel for the respective parties, perused the material available on record, and carefully examined the impugned Order in light of the applicable statutory provisions.

8. The scope of inquiry while considering an application under Order VII Rule 11 C.P.C. is well settled. For determining whether a plaint is liable to rejection, the Court is primarily required to examine the averments contained in the plaint and the documents forming part thereof. The defence set up in the written statement or disputed documents relied upon by the defendant cannot ordinarily furnish the basis for rejection of a plaint. Where the alleged bar of law is not apparent from the plaint itself and its determination depends upon disputed questions of fact requiring evidence, recourse to Order VII Rule 11 CPC would not be warranted.

9. The main objection raised by the Appellants is that Suit No.1712 of 2022 is hopelessly barred by limitation, particularly under Article 91 of the Limitation Act, 1908, as the Impugned Gift relates to the year 1971 and, according to them, the mother of Respondents No.1 and 2 had knowledge thereof at least since the proceedings in Suit No.383 of 1986. However, Article 91 makes the commencement of limitation dependent upon the point of time when the facts entitling the plaintiff to have the instrument cancelled or set aside become known to him.

10. The Appellants seek to establish the alleged knowledge of the predecessor of Respondents No.1 and 2 by referring to the written statements filed in Suit No.383 of 1986, the affidavits of 1984, the Relinquishment Deeds of 1988 and other surrounding circumstances. Respondents No.1 and 2, on the other hand, dispute such knowledge and maintain that the pleadings in the earlier suit merely referred to an alleged oral gift without disclosing its material particulars or the subsequent written instrument now under challenge. Whether their predecessor had actual or constructive knowledge of the Impugned Gift, when such knowledge was acquired, and what legal effect, if any, such knowledge would have upon the rights subsequently claimed by Respondents No.1 and 2 are matters which cannot be conclusively determined without examining the relevant pleadings, documents and evidence. Once the determination of the plea of limitation itself requires resolution of disputed facts, the plaint cannot be rejected under Order VII Rule 11(d) CPC merely on the basis of the defence asserted by the Appellants.

11. Insofar as the objection regarding the effect of dismissal of the earlier suit upon the maintainability of the underlying suit is concerned, the dismissal of Suit No.383 of 1986 does not, at this stage, render the underlying suit ex facie barred by law. Admittedly, the earlier suit was dismissed for non-prosecution under Order IX Rule 8 CPC. The consequence contemplated under Order IX Rule 9 CPC, if attracted, ordinarily operates against the plaintiff whose suit has been dismissed and precludes such plaintiff from instituting a fresh suit on the same cause of action. In the present case, however, Respondents No.1 and 2 were not plaintiffs in Suit No.383 of 1986; rather, their predecessor-in-interest was arrayed as a defendant therein. Thus, the dismissal of the earlier suit for non-prosecution cannot, by itself, operate as a legal bar against the institution of the underlying suit by Respondents No.1 and 2.

12. Similarly, the pleas based upon res judicata, Order II Rule 2 CPC, waiver and estoppel cannot, in the circumstances of the present case, be determined in isolation merely from the dismissal of the earlier suit. Their applicability would necessarily require examination of the identity of the parties, the respective causes of action, the nature of the reliefs claimed, and the matters directly and substantially in issue in the earlier and subsequent proceedings. Such an exercise would entail determination of disputed questions extending beyond the scope of an application under Order VII Rule 11 CPC. Therefore, unless the alleged bar is apparent on the face of the plaint itself, these objections cannot furnish a valid basis for rejection of the plaint at the threshold and may appropriately be determined by the learned Trial Court after framing relevant issues and affording the parties an opportunity to lead evidence.

13. Likewise, the reliance placed by the Appellants upon the affidavits executed in 1984, the registered Relinquishment Deeds of 1988, the alleged presumption attached to the old Gift Deed, possession of the Subject Property and other documents may constitute material in support of their defence, but the evidentiary value, authenticity and legal effect of such documents are matters for determination at trial. Acceptance of these documents at their face value at the stage of Order VII Rule 11 CPC would virtually amount to adjudicating the competing claims of title without affording the parties an opportunity to lead evidence.

14. A meaningful reading of the plaint shows that Respondents No.1 and 2 have pleaded their alleged inheritance rights in the Subject Property, questioned the validity and binding effect of the Impugned Gift and sought consequential reliefs of declaration, administration, partition and cancellation. Whether those assertions are ultimately proved is altogether a different matter. At the stage of Order VII Rule 11 C.P.C., the Court is not required to determine the probability of success of the plaintiffs' case; the relevant inquiry is whether the plaint, as framed, discloses a cause of action and whether any legal bar is apparent on its face. In the present case, no such bar can be conclusively gathered from the plaint without embarking upon an inquiry into disputed facts.

15. For the foregoing reasons and discussion, we are of the considered view that the objections raised by the Appellants, particularly those relating to limitation, knowledge of the Impugned Gift, waiver, estoppel, and the effect of the earlier proceedings and documents, involve disputed questions of fact and law which require adjudication after framing of appropriate issues and recording of evidence. Consequently, we find that the learned Single Judge committed no illegality, material irregularity or jurisdictional error in declining to reject the plaint under Order VII Rule 11 CPC and in leaving the disputed questions to be determined at trial. The impugned order, therefore, does not call for interference in appellate jurisdiction. Accordingly, the instant High Court Appeal was found to be devoid of merit and liable to be dismissed.

The foregoing are the reasons for our short order dated 10.08.2026, whereby the instant High Court Appeal was dismissed, with no order as to costs.

It is, however, clarified that the observations made herein are confined strictly to the question of rejection of the plaint under Order VII Rule 11 CPC and shall not be construed as an expression of opinion on the merits of the respective claims and defences of the parties. The learned Trial Court shall determine all issues arising from the pleadings, including those relating to limitation, validity of the Impugned Gift, inheritance, waiver and estoppel, independently on the basis of the evidence produced before it and strictly in accordance with law, uninfluenced by any observation made herein.

JUDGE

Naveed PA