Muhammad Malook Vs Mst. Sabah Sultan etc

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT

ABBOTTABAD BENCH

(Judicial Department) C. R No. 332-A/2017

Muhammad Malook.

(Petitioner/s)

VS

Mst. Sabah Sultan and another.

(Respondent/s)

Present: Mr. Tanveer Ahmad Mughal, Advocate, for petitioner.

Mr. Zahir Shah Mashwani, Advocate, for respondents.

Dates of hearing: 16.02.2026

JUDGMENT

AURANGZEB, J.- Through the instant civil revision petition, the petitioner/plaintiff has challenged the judgment & decree of learned Additional District Judge, Ghazi dated 14.07.2017, whereby, appeal filed by the present petitioner was dismissed and thereby modified the order/judgment of the trial Court dated 09.03.2016 who vide the same had dismissed the suit of petitioner/plaintiff under Order VII Rule 11 CPC.

2.Precisely stated, the facts giving rise to the filing of the instant civil revision petition are that

the petitioner/plaintiff instituted a suit for specific performance etc. against the respondents, the details whereof were duly mentioned in the heading of the plaint. Upon issuance of summons, the

respondents/defendants entered appearance and filed an application under Order VII Rule 11 CPC for rejection of the plaint. The said application was contested by the petitioner/plaintiff through filing of a written reply. After hearing the learned counsel for the parties, the learned trial Court accepted the application and rejected the plaint under Order VII Rule 11 CPC vide order/judgment dated 09.03.2016. Feeling aggrieved thereof, the petitioner/plaintiff preferred an appeal; however, the same was dismissed by the learned appellate Court through judgment and decree dated 14.07.2017. Hence, the petitioner/plaintiff has invoked the revisional jurisdiction of this Court by way of the instant civil revision petition.

3.Arguments advanced by the learned

counsel for the parties were heard and the record was perused with their able assistance.

4.The record, when examined in its proper legal and factual perspective, reveals that the petitioner/plaintiff instituted a suit for specific

performance on the basis of an oral agreement allegedly concluded in the year 1971, which was subsequently reduced into writing through an agreement deed dated 05.10.1973. Through the said agreement, respondent No.1/defendant undertook to transfer her proprietary share in the joint holding situated in Mouza Salam Khand, Tehsil Ghazi, District Haripur, in favour of the petitioner/plaintiff. The contractual arrangement, as pleaded, covered the entire share of respondent No.1 except land comprised in Khasra No. 531, which stood excluded. It was the consistent stance of the petitioner/plaintiff that he had always remained ready and willing to perform his part of the contract, but respondent No.1 failed to honour her obligation.

5.The dispute assumed a contentious

dimension when respondent No.1/defendant allegedly transferred half of her share in the suit property in favour of respondent No.2/defendant through Mutation No. 2556 dated 22.07.2010. According to the petitioner/plaintiff, this transfer was not only in violation of the prior agreement but was also actuated by fraud and collusion, thereby rendering the mutation illegal, void, and ineffective against his contractual

rights. On these premises, the petitioner/plaintiff sought a decree for specific performance along with ancillary relief.

6.Upon appearance before the learned Trial Court, the respondents/defendants, instead of contesting the suit on merits, filed an application under Order VII Rule 11 CPC seeking rejection of the plaint primarily on the ground of limitation. The learned Trial Court, accepting the contention of the defendants, rejected the plaint vide order/judgment dated 09.03.2016, holding that the suit, being founded upon agreements of 1971 and 1973, was ex facie barred by time and, therefore, not maintainable. The petitioner/plaintiff assailed the said order before the learned Appellate Court. The Appellate Court, upon examination of the plaint and attendant circumstances, correctly observed that the question of limitation, in the facts of the present case, constituted a mixed question of law and fact. It was held that where determination of limitation depends upon disputed factual inquiries, such as the point of refusal, subsistence of cause of action, alleged fraud, and subsequent conduct of parties, the matter cannot be conclusively decided without recording evidence.

Consequently, rejection of plaint at the pre-trial stage was found legally unsustainable. However, instead of remanding the matter for trial, the learned Appellate Court proceeded to return the plaint under Order VII Rule 10 CPC on the ground that the agreement had been executed at Karachi and, therefore, the Court at Ghazi lacked territorial jurisdiction. This course adopted by the Appellate Court calls for careful judicial scrutiny.

7.At the outset, it requires reiteration that while adjudicating an application under Order VII Rule 11 CPC, the Court is confined to the averments contained in the plaint alone. If limitation is not apparent on the face of the plaint and requires evidence, rejection cannot be ordered. The learned Trial Court, therefore, fell into patent illegality in dismissing the suit summarily. Having so held, the learned Appellate Court ought to have remanded the matter. Instead, it invoked territorial jurisdiction as a ground to return the plaint, an approach that suffers from jurisdictional as well as procedural infirmity.

8.In this context, the provisions of Section 16 CPC assume decisive significance. The said provision mandates that suits for specific performance

of contracts relating to immovable property shall be instituted in the Court within whose territorial jurisdiction the property is situated. In the present case, the subject matter of the agreement is immovable property located in Mouza Salam Khand, Tehsil Ghazi, District Haripur. The relief sought, specific performance, directly pertains to proprietary rights in that immovable property. Therefore, by virtue of Section 16 CPC, the Courts at Haripur/Ghazi possessed inherent territorial jurisdiction to entertain and adjudicate the suit. Even if it were assumed that the agreement was executed at Karachi, such fact alone would not oust jurisdiction of the Court within whose limits the property is located. Jurisdiction in specific performance matters is not governed solely by place of contract but significantly by situs of property.

The determination made by the learned Appellate Court, therefore, runs contrary to the statutory command embodied in Section 16 CPC. In the case of “Haji Abdul Malik vs. Muhammad Anwar Khan” reported as 2003 SCMR 990 the Hon’ble Apex Court has held as under;

“Under section 16 of C.P.C. a suit for declaration relating to the rights and interest in an immovable property is instituted in a Court within local limits of which the property is situated. The suit for the purposes of determining

the rights or interest in the property being different to that of the suit in which the relief claimed does not relate to the rights in the immovable property, can be filed at the place at which the cause of action fully or partly arose. The suit relating to the rights in the immovable property would lie before the Court within the local limits of which the property is situated and if the property is situated outside the territorial jurisdiction of the Court, and the relief being sought in the suit relates to the property, the suit would not be maintainable before any other Court except the one within territorial jurisdiction of which property is situated. In the present case, the parties in the suit in question. resided in the local limits of District Mansehra and the agreement was also registered at Mansehra therefore, cause of action in favour of respondents-plaintiffs relating to the cancellation of agreement would arise at Mansehra. The essential factor for determination of jurisdiction for the purpose of, entertaining the suit would be judged from the contents of the plaint and the dispute subject-matter of suit and not from the consequence flown from the suit. The declaration in the suit filed by the respondents sought was that cancellation of registration of agreement by the Registrar was illegal which would not relate to the rights and interest in the immovable property and would be confined only to the limited extent of the exercise of jurisdiction by the Registrar. The place of breach of law would furnish the forum for a suit and such place is where some act was to be performed and thus the suit to set aside the document on the ground that it was obtained through misrepresentation would be maintainable at the place where the act of misrepresentation, I was committed and if such a document is registered, the suit would be maintainable at the place of its registration. The reference may be made) to Rajlakshmi Dassi v. Banamali (AIR 1950 Cal. 510). In the case in hand, the document was registered at Mansehra which was subsequently cancelled and the respondents through the suit for the declaration challenged the cancellation of registration as beyond the power and jurisdiction of Registrar, Mansehra.

In the nutshell, if a suit involves dispute relating to the rights in the immovable property, such suit will be maintainable at the place where property is situated and if the relief does not relate to the rights and interest in the property and is confined only to the extent of an ancillary matter, can be filed at the place where the cause of action wholly or partly arose. The learned Judge in

Chambers in the High Court having examined the proposition in detail in the light of relevant statute has held that the suit was maintainable at Mansehra and we are or the view that no exception can be taken to the legal position explained in the impugned judgment in the facts of the present case. Consequently, we for the forgoing reasons, do not find any substance in the present appeal which is dismissed with no order as to costs”.

The same view has been reiterated in the case of “Muhammad Shahid Murtaza Vs. Habib Bank Limited” reported as 1999 MLD 1091 Karachi wherein it has been held that “Since a part of cause of action accrued to plaintiff at Karachi, Court at Karachi had jurisdiction to try and adjudicate suits to the extent of relief for the redemption of mortgage because the subject matter of the suit which was three immovable properties was located within territorial limits of the Court at Karachi”.

9.Furthermore, the question as to where the agreement was executed and where the cause of action arose, wholly or in part, were disputed factual matters requiring evidence. Recording conclusive findings on such issues without trial amounted to pre-judging factual controversies, which was impermissible in appellate jurisdiction arising out of rejection of plaint.

10.Equally significant is the application of Section 21 CPC, which governs objections as to

territorial jurisdiction. The provision categorically stipulates that no objection regarding place of suing shall be allowed by an appellate or revisional Court unless: (i) such objection was taken in the Court of first instance at the earliest possible opportunity, and

(ii)there has been a consequent failure of justice. In the present matter, the record does not reflect that any objection as to territorial jurisdiction was raised by the defendants before the learned Trial Court at the initial stage. The application under Order VII Rule 11 CPC was premised solely on limitation. No plea for return of plaint on territorial grounds was pressed or adjudicated. In absence of such foundational objection, the learned Appellate Court could not have, suo motu, returned the plaint on territorial jurisdiction, particularly when no failure of justice was either pleaded or demonstrated.

11.The legislative intent behind Section 21 CPC is to prevent technical objections from defeating substantive rights at appellate stages. Territorial jurisdiction, unless inherently lacking, is a waivable defect. Where parties submit to jurisdiction and contest proceedings without demur, the objection stands relinquished. The learned Appellate Court, therefore,

transgressed the statutory limitation imposed by Section 21 CPC by entertaining and sustaining a jurisdictional objection never properly raised. The Honourable Supreme Court of Pakistan in the case of “Regional Development Finance Corporation vs. Gul Hassan” reported as 2009 SCMR 706, while dealing with above proposition observed that:- "5. The objection in the instant case is with regard to the territorial jurisdiction of the Court. Under section 21, C.P.C. no such objection qua territorial jurisdiction can be allowed to be taken before the appellate or revisional Court unless such objection is taken in the Court of first instance i.e. the trial Court. The application for leave to defend would clearly indicate that no such objection about territorial jurisdiction was ever taken by the defendant at the earliest possible opportunity. Such draw back was pointed out by Mr. Fasi-ul-Mulk learned counsel for the Corporation before the High Court but the stance taken with reference to section 21, C.P.C. was repelled. We hold that it was wrongly repelled and the provisions of section 21, C.P.C. could not be so conveniently avoided."

Further reliance is placed on the case of “Dr.

Arif Dawood Harekar vs. Sea Breeze Private Limited” reported as 2022 MLD 51 wherein it has been held as under;

“A bare perusal of the provisions of above Section reflects that if the objection as to the territorial jurisdiction is not raised before the Court of first instance the same cannot be taken before the superior forums”.

The same view is reiterated in the cases reported as 2006 YLR 1845 and 1994 CLC 1357.

12.Viewed cumulatively, the impugned

orders suffer from dual infirmities. The Trial Court erred in rejecting the plaint on limitation without evidence, whereas the Appellate Court, despite correcting that error in principle, fell into another by returning the plaint contrary to Sections 16 and 21 CPC. The proper judicial course, once limitation was held to be a mixed question of law and fact, was to restore the suit and remit it for trial. Questions relating to territorial jurisdiction, situs of agreement, effect of mutation, and enforceability of contract were all matters requiring framing of issues and recording of evidence. Accordingly, the cumulative effect of the above discussion is that both the order of the learned Trial Court rejecting the plaint under Order VII Rule 11 CPC and the judgment of the learned Appellate Court returning the plaint under Order VII Rule 10 CPC are legally unsustainable and liable to be set aside.

13.Consequently, this petition is allowed.

The impugned judgment of the learned Appellate Court as well as the order of the learned Trial Court are hereby set aside. The case is remanded to the learned Trial Court with directions to restore the suit to

its original number. The learned Trial Court shall frame proper issues arising out of the pleadings, including issues relating to limitation, territorial jurisdiction in light of Section 16 CPC, effect of waiver under Section 21 CPC, validity of mutation, and enforceability of the agreement. The parties shall be afforded full opportunity to lead evidence in support of their respective claims and defences.

Thereafter, the learned Trial Court shall decide the suit strictly in accordance with law and on the basis of evidence, through a reasoned judgment, without being influenced by any tentative observations made herein.

The parties are directed to appear before the learned Trial Court on 26.02.2026. The Trial Court is expected to proceed with the matter expeditiously.

Announced

Tahir Saleem

JUDGE