Haji Muhammad Ishaq Vs Syed Jameel Shah and others

Judgment Sheet

IN THE PESHAWAR HIGH COURT, ABBOTTABAD BENCH

JUDICIAL DEPARTMENT

Writ Petition No. 987-A/2023

JUDGMENT

Date of hearing.............17.09.2025........................

Petitioner (Haji Muhammad Ishaq) By Mr. Zaheer Khan Jadoon, Advocate.

Respondents (Syed Jameel Shah and others) Respondents By Mr. Asad Tanveer Qureshi, Advocate.

AURANGZEB, J.- Through instant writ petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner seeks the following prayer:- “So, it is requested before this Honourble court that the decision of learned respondent No.3 dated 20.06.2023 be set aside and the decision of learned proforma respondent No.4 be restored with all its effect or any other relief which this Honourable courts deems fit and proper may be granted for the interest of justice.”

2.In essence, the petitioner (plaintiff) instituted a civil suit seeking specific performance of an agreement dated 29.08.2012, whereby respondents No.1 and 2 (defendants), having received an amount of Rs. 35,000,000/- from the petitioner, undertook to transfer and mutate the suit property, namely House No. 87-B, situated at Habibullah Colony, Abbottabad, in favour of the petitioner. The transfer was to be effected through legally recognized instruments, thereby

conferring valid title and ownership rights upon the petitioner.

The petitioner alleged that despite written compromised duly presented before the court and statement recorded by the petitioner and respondents, the respondents failed to discharge their contractual obligations and refrained from executing the requisite documents for mutation of the property in his favour. Consequently, along with the primary relief of specific performance of the agreement, the petitioner also sought a decree of mandatory injunction, directing the respondents to fulfill their obligations under the agreement by executing all necessary documents and ensuring lawful transfer of the suit property in the petitioner’s name. The respondents No.1 and 2 (defendants) appeared before the learned trial court and contested the suit by filing their written statement. During pendency of suit, the respondents No.1 & 2 (defendants) filed an application under Order VII Rule 11 CPC. The learned trial court after obtaining written reply and hearing arguments of learned counsel for parties vide order dated 13.04.2017 dismissed the same. Not contended with the same, the respondents No.1 & 2 (defendants) preferred revision petition before the learned Revisional Court, which was accepted vide judgment and decree dated 20.06.2023, hence, the instant constitutional petition.

3.I have heard arguments of learned counsel for parties and perused the record with their valuable assistance.

4.The available record reveals that the petitioner, through the instant lis, has approached the learned Court seeking a decree for specific performance of contract as well as perpetual and mandatory injunction. The stance of the petitioner is that respondents No.1 and 2, being the vendors/defendants, are legally bound to honor and fulfill the terms and conditions of the compromise deed executed on 29.08.2012. It is asserted that the petitioner has repeatedly called upon and offered the respondents to receive the balance sale consideration of Rs.35,000,000/-, yet the respondents have failed to discharge their corresponding legal obligation. According to the petitioner, the contractual responsibility of respondents No.1 and 2 is to transfer, alienate, and convey the suit property, i.e., House No. 87-B, situated at Habibullah Colony, Abbottabad, in favour of the petitioner by way of a registered sale deed or mutation in the relevant revenue record. The petitioner has further alleged that despite the subsistence of the binding agreement, the respondents not only avoided performance but also started creating unnecessary hindrance, annoyance, and harassment for the petitioner. It is further alleged that the respondents, in violation of their contractual duty, are projecting themselves as the absolute owners of the suit property with mala fide intent to defeat the legitimate rights of the petitioner. In these circumstances, the petitioner has prayed for issuance of a decree directing the respondents to

specifically perform the agreement/compromise deed in letter and spirit, to execute the transfer deed/mutation of the suit house in favour of the petitioner, and for a perpetual injunction restraining them from interfering in the petitioner’s lawful rights, from causing any harassment, and from holding themselves out as exclusive owners of the impugned house in derogation of the petitioner’s lawful claim.

5.Without entering into the deep merits of the case, it would suffice to observe that the ground taken by the respondents in their application for rejection of the plaint, namely, that the petitioner/plaintiff has no cause of action, does not fall within the purview of Order VII Rule 11, Code of Civil Procedure (CPC). It is a settled principle of law that in order to determine whether a cause of action exists or not, a specific issue must be framed during trial, and the parties must then be afforded the opportunity to lead evidence in support of or against the same. Order VII Rule 11 (a) CPC envisages rejection of a plaint only when, on its very face, it fails to disclose any cause of action. In other words, the existence of a cause of action must be ascertainable directly and clearly from the averments of the plaint itself without embarking upon an inquiry requiring evidence. Thus, the test under this provision is whether the cause of action can be seen floating on the surface of the plaint. The Hon'ble Apex Court in its judgment in the case of “Muhammad Saleemullah and others v. Additional District Judge,

Gujranwala and others" reported as PLD 2005 Supreme Court 511 has held that for the purpose of disposal of an application under Order VII, Rule, C.P.C. contents of the plaint are to be presumed to be correct. Relevant part of findings of the august Court are reproduced for ready reference;

“Order VII, rule 11, C.P.C. contemplates rejection of plaint only on the basis of averments made in the plaint to consider whether there is failure of cause of action or the suit is barred under some provision of law but the plaint cannot be rejected under Order VII, Rule 11, C.P.C. on the basis of pleas raised by the defendant in the written statement in his defence as at this stage, the pleas are only contentions which are not based on the evidence. Order VII, Rule 11, C.P.C. becomes operative only when the plaint is liable to be rejected on the basis of its contents taken to be true and correct but the Court can also rely upon the documents annexed to the plaint and brought on record with written statement to consider the question of application of Order VII, Rule

11, C.P.C."

Similar finding had also been recorded by this Court in its earlier judgment in the case of Qayum Nawaz through LRs v. Allah Nawaz through LRs reported as 2012 CLC 1726 in the following manner;

"While rejecting the plaint the Court has only to see the averments in the plaint and if on admitting all the grounds mentioned therein as correct, petitioners-plaintiffs are not found to be entitled for the decree in their favour, the plaint is liable to be rejected but if the grounds pleaded in the plaint require leading of evidence in support thereof, the plaint cannot be rejected. Secondly; the cause of action is also taken into consideration while rejecting the plaint,

but without specifying in the impugned order that how the petitioners-plaintiffs have no cause of action to file the instant suit, the plaint has been rejected. Apparently oral agreement is stated to have been entered between the predecessor of the parties and certain payments have also been made. Moreso, the terms and conditions of the oral agreement have also been specified by the petitioners plaintiffs. These are the essentials constituting the cause of action. As such the petitioners plaintiffs have a cause of action and the suit of the petitioners plaintiffs is maintainable. On cursory assessment, the suit of the petitioners-plaintiffs seems to be maintainable and likewise it appears from the plaint that they have cause of action to file the instant suit."

This court in another case titled Duniya Gul and another versus Niaz Muhammad and 2 others (2024 YLR 1290 Peshawa) has held that:-

“17. Order VII, Rule 11, C.P.C. provides the following 04 eventualities where the plaint can be rejected:-- "11. Rejection of Plaint.---The plaint shall be rejected in the following cases: a. Where it does not disclose a cause of action;

b. Where the relief claimed is undervalued, and the plaint, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;

c. Where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court supply the requisite stamp -paper within a time to be fixed by the Court, fails to do so; d. Where the suit appears from the statement in the plaint to be barred by any law. "

18.Clause "a" of Order VII, Rule 11 envisages that in cases of non-disclosure of cause of action, the plaint is liable to be

rejected. I am conscious of the legal preposition that "accrual of cause of action" and "disclosure of cause of action" are two distinct concepts, former can only be decided after recording of evidence whereas in the case of non-disclosure of cause of action, the result would be rejection of plaint as mandated by Order VII, Rule 11, C.P.C. The term "Cause of Action" has not been explained or defined in the C.P.C. or any other law, therefore, in this regard I can have recourse to the other treatises/dictionaries and the law developed by various jurists to understand the concept "disclose of cause of action". The various dictionaries have explained the term cause of action as following: -

"CAMPBRIDGE DICTIONARY:

"An acceptable reason in law for taking legal action against someone."

COLLINS DICTIONARY:

The facts alleged in a complaint, upon which is based the plaintiff's right to a legal remedy in a court of law.

LAW RIGHT:

"A cause of action is the technical legal name for the set of facts which give rise to a claim enforceable in court. It is a legally recognized wrong that creates the right to sue. Each cause of action consists of points the plaintiff must prove and all of these elements must be satisfied in order to take court action."

MACMILLAN DICTIONARY:

"A fact or set of facts that is sufficient to justify legal action."

SEWELL AND KETTLE LAWYERS

DICTIONARY:

The fact of combination of facts that give a person the right to seek judicial redress as a result from some wrongful act or breach that has cause a person loss of damage. The person who has a cause of action and commences proceedings is referred to as a "plaintiff".

In order to seek a remedy, a plaintiff will have to successfully 'plead' the facts that satisfy the 'elements' of a cause of action. The remedy is usually sought by filing and serving a statement of claim on the person or entity that has committed the alleged

wrongful act. The statement of claim must be filed in a competent jurisdiction that has the ability to hear a particular claim and the person or entity must have standing to be heard.

Two of the most common causes of action are tort and contract. There are many different types of causes of action in tort, some of which include negligence, conversion, passing off and defamation. On the other hand, in contract there is only one type of cause of action, being breach of contract. This is distinct from debt as a cause of action.

WIKIPEDIA:

"A cause of action is defined as a set of predefined factual elements that allow for a legal remedy. The factual elements needed for a specific cause of action can come from a constitution, statute, judicial precedent, or administrative regulation."

For instance, in New York, the "cause of action" necessary for conversion are 1) the existence of the plaintiff's possessory right or interest in the item and 2) defendant's dominion over that item or interference with it in derogation of plaintiff's rights (stated through case law - see Colavito v. New York Organ Donor Network, Inc.). Likewise, in California, the elements for conversion are also dictated through case law. In the California Supreme Court case Lee v. Hanley, the court states that the elements of conversion are (1) the plaintiff's ownership or right to possession of the property; (2) the defendant's conversion by a wrong act or disposition of plaintiff's property rights; and (3) damages suffered by plaintiff."

19.The privy council in the case of "Chand Kaur v. Partap Singh (15 IA 156) regarding the expression "cause of action" has observed that: - "the cause of action does not depend upon the character of the relief prayed for by the plaintiff but it refers entirely to the grounds set forth in the plaint as a cause of action or in other words the media upon which the plaintiff asks the court to a conclusion in his favour."

20.However, it has been very aptly and elaborately explained by the Hon'ble Supreme Court in the case of "Pakistan Agricultural Storage and Services Corporation Ltd. v. Mian Abdul Latif and others (PLD 2008 SC 371)" that:-- "it would be pertinent to mention here that the term "cause of action" represents all the requisites and facts which are necessary for the plaintiff to prove before he can succeed in a suit."

21.In view of the above, this Court hold that cause of action relating to filing of a suit can be construed as set of facts which are narrated in the plaint and giving rise to a claim enforceable under any law/contract/conventions in any court recognized by law. The trial court while rendering an opinion whether the plaint discloses a cause of action or otherwise while deciding an application under Order VII, Rule 11(a), C.P.C. has to evaluate the entire facts narrated in the plaint upon which the plaintiff is seeking his remedy against the defendants. After perusal of the said facts and relevant record if the court reaches at a conclusion that there is a probability, if the plaintiff is allowed to lead evidence in support of his/their claim, he may succeed in getting a decree against the defendant for his entire or partial claim. In such circumstances, the plaint should not be rejected.”

6.In the instant case, the plaint reveals that the petitioner/plaintiff has specifically alleged material facts regarding the compromise deed dated 29.08.2012 concerning the suit property. Such averments, which form the foundation of the claim, cannot be brushed aside summarily through an application under Order VII Rule 11 CPC. The petitioner’s claim, based on the said compromise deed which duly present in court proceedings, does prima facie disclose a cause of action that requires adjudication after recording

evidence. Furthermore, the respondents No. 1 and 2, in their application, have taken the stance that the suit house bearing No. 87-B stands in the ownership of one Syed Nusrat Shah, and that neither of the contesting parties has any lawful nexus with the same. It is also their contention that the compromise deed pertaining to the disputed property is fictitious and devoid of legal sanctity.

7.These assertions clearly raise disputed questions of fact regarding the true ownership of the suit property and the legal status of the compromise deed relied upon by the petitioner. Such questions cannot be resolved at a preliminary stage by invoking Order VII Rule 11 CPC, as they necessarily require framing of issues, reception of evidence from both sides, and a determination on merits by the learned trial Court. Therefore, the controversy as to whether the petitioner/plaintiff has a valid cause of action and whether the impugned compromise deed has legal efficacy are matters that must be decided after a full-fledged trial, and not through summary rejection of the plaint.

8.In view of the above, it is observed that through the impugned judgment, the leaned appellate court has not rightly appreciated the law on subject, therefore, committed gross illegality by accepting the revision petition filed by the respondents No.1 and 2.

9.For what has been discussed above, the instant revision petition is allowed. Consequently, the impugned

judgment passed by the learned Revisional Court is set aside and the order/judgment passed by the learned trial court is restored.

Announced

JUDGE

Aftab PS/*