ORDER SHEET
IN THE HIGH
COURT OF SINDH AT KARACHI
H.C.A.No.
46 of 2014
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Date order
with signature of Judge
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Present:
Mr. Justice Irfan Saadat Khan
Mr. Justice Abdul Maalik Gaddi
For Katcha Peshi
26.03.2014
Mr. Khurshid Ahmed Qureshi
Advocate for the Appellant.
-.-.-.-.-.
Abdul
Maalik Gaddi, J-.Through
this High Court Appeal, the Appellant has assailed the legality and propriety
of the impugned order dated 31.01.2014, passed by the learned Single Judge of
this Court in Civil Suit No. 1276/2013, whereby the learned Single Judge after
hearing the parties dismissed the application under Order VII Rule 11 CPC filed
by the Appellant.
2. Relevant facts for the disposal of
this Appeal are that Respondent filed a Suit for Specific Performance of the
Contract, Declaration, Possession and Injunction with the following prayers:-
PRAYER
The
Plaintiff above named respectfully prays for judgment and decree as under:-
a)
To declare that the plaintiff is legally entitled for the transfer
of the suit property in his favour and to direct the Defendant to stand on his
Contractual Obligation and Execute Sale Deed before the Sub-Registrar after
completing all legal formalities including mutation in the name of all the
legal heirs as per law, after getting the balance Sale Consideration of Rs. 2,36,00,000/-
and deliver possession of the suit property to the plaintiff. In case of his
failure the Nazir of this Hon’ble Court may be directed to do the needful as
prayed above.
b)
To restrain the Defendant, his agents, Attorneys or representatives
and any body on his behalf not to create third party interest till final
decision of this Suit.
c)
Cost of the Suit may also be awarded in favour of the Plaintiff.
d)
To grant any other relief which this Hon’ble Court deems fit and
proper under the circumstance of the case.
3. The
Defendant/Appellant has filed his Written Statement in the Suit and has taken
the plea that the Suit filed by the Respondent was not maintainable and there
exists no such Agreement between the parties and the claim of the agreement is
based on false documents. Besides this he has also filed an application under
Order VII Rule 11 CPC, which was dismissed by the learned Single Judge of this
Court by observing that there are factual controversies between the parties,
therefore, the claims of the parties could not be adjudicated without framing
the issues and recording of evidence in the matter.
4. Learned counsel for the Appellant
submits that the Suit filed by the Respondent was not maintainable in view of
the fact that there is no written Sale Agreement in respect of the property in
question nor the Appellant, with whom the Respondent alleged to have entered
into Agreement, is the exclusive owner of the property in question. Learned
counsel further submits that in terms of the receipt filed by Respondent, it
was only an understanding that some settlement in terms of sale of the property
would be reached and by no stretch of imagination that receipt could form terms
of sale in respect of the property in question. Learned counsel in support of
his contentions has relied upon the decisions reported as INAM NAQSHBAND VS. HAJI SHAIKH IJAZ AHMAD (PLD 1995 S.C 314)
& ASGHAR ALI VS. WAQAR-UZ-ZAMAN AND OTHERS (2004 CLC 1531) and has prayed that the learned Single Judge
while dismissing the application for rejection of plaint has committed material
illegality and has further prayed that the impugned order may be set aside.
5. We have heard learned counsel for the
Appellant at length and have perused the material available on record, so also
the case law cited by the learned counsel. The facts narrated by the learned
counsel, as stated above, clearly stipulates a factual controversy between the
parties, which can only be resolved by recording the evidence, which has still
not yet been led. It is a settled proposition of law that in order to reject a
plaint, it must be shown that it is barred under some law on the basis of
averments made in the plaint. The court at this preliminary stage could neither
look into the pleas raised by defendant/Appellant nor could examine the merits
of the allegations raised in the plaint. Every allegation made in the plaint
has to be accepted as correct while rejecting the plaint under the provisions
of Order VII Rule 11 CPC. The fact that Plaintiff/Respondent might not
ultimately succeed in establishing the allegations raised in the plaint could
not be a ground for rejecting the plaint under Order VII Rule 11 CPC. We in
this behalf, are fortified by a judgment reported as MRS. HALIMA TAHIR AND 5 OTHERS VS. NAHEED AND OTHERS (2004 MLD
227), wherein this Court has held as under:-
“While examining merits of
such application, Court is required to see only the averments made in the
plaint.”
6. We have gone through the contents
of the plaint but did not find any of the para of the plaint, which appears to
be hit/barred by any law. On asking a question from the learned counsel for the
Appellant to point out any of the para of the plaint, which is hit/barred by
any law but he failed to point out any of the para, which is hit/barred by any
law. We have also gone through the impugned order, but did not find any
illegality or infirmity, even otherwise the impugned order has been passed
after proper appreciation of the facts presented before the learned Single
Judge. The case law cited by the learned counsel for the Appellant has also
been perused and considered by us but did not find the same to be applicable to
the facts of the present case, therefore, this Appeal has no merits, which is dismissed
in limine.
7. These are the reasons for the short
order announced by us today i.e. 26.03.2014.
JUDGE
JUDGE