Abdul Razzaq Vs Abdul Ghafoor

JUDGMENT SHEET

PESHAWAR HIGH COURT

ABBOTTABAD BENCH

(Judicial Department) RFA No. 13-A/2024

(Converted in to WP No._________)

Abdul Razzaq.

Appellant/s v/s Abdul Ghafoor and others.

Respondent/s Present: Mr. Sajjad Ahamd Abbasi, Advocate, for appellant.

Mr. Tahir Faraz Abbasi, Advocate, for respondents.

Date of hearing: 14.04.2026

JUDGMENT

AURANGZEB, J.- Through the instant appeal, the appellant/petitioner has assailed the judgment and decree dated 14.11.2023 passed by the learned Additional District Judge-V, Abbottabad, whereby the learned revisional Court, while accepting the revision petition filed by respondents No. 1 to 13, rejected the plaint of the appellant under Order VII Rule 11 CPC.

2.Precisely stated, the facts culminating in the filing of the instant Regular First Appeal are that the appellant/petitioner instituted a suit for specific performance of agreement, the particulars whereof

stand fully mentioned in the heading of the plaint.

The respondents No. 1 to 13/defendants entered appearance and contested the suit by filing written statements. Subsequently, on 08.02.2022, the respondents No. 1 to 13 moved an application under Order VII Rule 11 CPC for rejection of the plaint, which was duly contested by the appellant/plaintiff through filing of a written reply. After hearing the learned counsel for the parties, the learned trial Court dismissed the said application vide order dated 15.02.2023. Feeling aggrieved thereof, the respondents No. 1 to 13 preferred a revision petition before the learned revisional Court. The learned revisional Court, vide impugned judgment and decree dated 14.11.2023, accepted the revision petition, set aside the order/judgment dated 15.02.2023 passed by the learned trial Court and rejected the plaint of the appellant/petitioner. Hence, the appellant/petitioner has approached this Court through the instant Regular First Appeal.

3.Arguments heard and record perused.

4.The record reveals that the

appellant/plaintiff, namely Abdul Razzaq, instituted a suit for specific performance on the basis of an alleged oral agreement, asserting that the

respondents/defendants were under obligation to transfer his share in the suit property comprising Survey Nos. 1813, 1417, 1809, 1819, 1815, 1817, 1282, 1465, 1807, 1808, 1466, 1818 and 11/38, fully detailed in the heading of the plaint, in his favour.

Besides the relief of specific performance, the appellant also sought consequential reliefs in the shape of perpetual and mandatory injunctions.

5.A careful perusal of the plaint would show that the entire claim of the appellant rests upon an alleged oral agreement which, according to his own version, was entered into in the year 1983.

Significantly, neither the exact date nor even the place and month of the alleged agreement has been disclosed in the plaint. The appellant/petitioner merely mentioned the names of certain witnesses in paragraph No. 6 of the plaint, before whom, according to him, the alleged transaction had taken place. However, the omission to disclose the precise date, month and surrounding circumstances of such an alleged oral agreement is of considerable significance and is fatal to the case of the appellant/petitioner. In a suit for specific performance, particularly one founded upon an oral agreement, the party seeking enforcement is required

to plead all material particulars with utmost precision and certainty. The absence of such essential particulars renders the claim vague, uncertain and incapable of adjudication. In the case of “Hafiz Qari Abdul Fateh through LRs Vs. Ms. Uroof Fatima and others” reported as 2024 SCMR 1709 the Hon’ble Apex Court has held that “An oral agreement by which the parties intended to be bound is valid and enforceable; however, it requires to be proved through clearest and most satisfactory evidence. Law relating to oral agreement is quite clear, the terms and conditions which were orally agreed have to be stated in detail in the pleadings and have to be established through independent evidence. When a party seeks a decree of specific performance for the sale of immovable property based solely on an oral agreement, the onus is on that party to demonstrate that there was a mutual agreement and consensus between both parties regarding the terms of the oral contract. Party claiming the existence of an oral agreement must clearly specify the date, time, place, and names of witnesses in their pleadings, such as the plaint or written statement. These requirements are sine qua non to prove an oral agreement to sell. This is because suits involving sales based on oral

agreements are more prone to dishonest improvements made by parties in the evidence and pleadings in order to succeed”. In the case of “Moiz Abbas Vs Mrs. Latifa” reported as 2019 SCMR 74 the Hon’ble Apex Court has held that “We find that no date, time, place or names of witnesses of the alleged oral agreement have been mentioned in the reply to the legal notice, the written statement, or the suit filed by the respondent. The learned counsel attempted to argue that the said gaps had been filled by the witnesses of the Respondents in their affidavits in evidence. We are not impressed by this argument.

These improvements are clearly beyond the pleadings and constitute and attempt to improve the case of the Respondents as an afterthought. Such course of action is not permitted by law. These requirements are sine qua non to prove an oral agreement to sell which have been settled by this Court in numerous judgments time and again. These are clearly missing in this case. Suits involving sales based on oral agreements are more susceptible to improvements made by parties in the evidence and pleadings in order to succeed. It is imperative that all of these requirements spelt out by Courts with a view that only bona fide oral agreements lead to grant of decrees, need to be strictly enforced and Courts must

insist that these be fulfilled at the earliest so as to ensure that an oral agreement is fully proved and the device of oral agreement is not abused by unscrupulous and devious litigants to get decrees by fraud, deceit, skillfully made improvements at different stages the trial”. Similarly, in the case of “Muhammad Saleem Khan vs. Syed Athar Hussain and 4 others” reported as 2025 CLC 823 it has been held that “Respondent was the sole and absolute owner of the suit plot and the appellant had failed to place on record any evidence that respondent (actual owner) ever intended or entered into any sale transaction in respect of the suit plot with the appellant either through WhatsApp messages or emails. Entire record of conversation through WhatsApp messages and emails was between appellant and son of actual owner, who was not competent to enter into a sale transaction with the appellant, more particularly when the actual owner in his written statement had specifically stated that he never authorized his son to fetch a buyer or enter into an agreement to sell in respect of the suit plot on his behalf. Appellant had failed to place on record any evidence as to oral transaction between him and the actual owner of the suit plot. Where sale was pleaded through oral agreement then the terms and

conditions which were orally agreed were to be stated in detail in the pleadings. In such like cases, a party besides detailing subject matter of the sale and consideration was also required to provide other necessary details such as striking of the bargain, and names of the witnesses in whose presence the said oral transaction for sale was arrived at, which were the essential requirement for proving an oral agreement to sell.

Further reliance in this regard can also be placed upon the cases of Muhammad Nawaz vs. Haji Muhammad Baran Khan (2013 SCMR 1300),

Abdul Rasheed vs. Zahoor-ud-Din (2024 CLC 1060), Abdul Hameed vs. Muhammad Shakeel Shahid (2023 MLD 145, Liaqat Ali vs. Muhammad Ashraf (2016 YLR 551), and Nazir Abbas vs.

Ghulam Muhammad ( 2017 CLC 996).

6.It is now well settled that a suit for specific performance is governed by Article 113 of the Limitation Act, which prescribes a period of three years for instituting such a suit. The limitation ordinarily begins to run either from the date fixed for performance or, where no such date is fixed, from the date when refusal is communicated or can reasonably be inferred. In the present matter, the alleged oral

agreement pertains to the year 1983, whereas the suit was instituted on 21.11.2019, after an extraordinary lapse of almost thirty-six years. Such enormous delay, by no stretch of imagination, can be overlooked or treated as inconsequential. It is not a case of a minor delay of a few days, months or even years; rather, it is a case where almost an entire generation has passed, and rights, possession, title and circumstances would naturally have undergone substantial change over the passage of time.

7.The petitioner neither pleaded nor established any legally recognizable ground to save limitation. No explanation worth the name has been furnished as to why the suit remained dormant for more than three decades. Furthermore, the petitioner did not seek exemption from limitation in terms of Order VII Rule 6 CPC, which specifically requires that where a suit is instituted after expiry of the prescribed period of limitation, the plaintiff must plead the grounds upon which exemption from limitation is claimed. In absence of such pleadings, the suit was clearly barred by time on the face of the record.

8.The contention advanced on behalf of the petitioner that the question of limitation was a

mixed question of law and fact does not advance his case in the peculiar facts of the present matter.

Although, generally speaking, limitation may in certain cases involve factual inquiry, yet where the suit is ex facie barred by time and no factual controversy exists regarding the delay, the Court is fully competent to examine the issue at the threshold.

In the present case, the appellant himself pleaded that the transaction was of the year 1983, whereas the suit was instituted in the year 2019. Therefore, no further evidence was required to determine that the claim was hopelessly barred by limitation. The principle that limitation is a mixed question of law and fact cannot be stretched to such an extent so as to revive stale and dead claims after passage of decades. There could be no cavil to the proposition that the provisions of Order VII Rule 11 CPC are attracted where the plaint does not disclose a cause of action or where the suit appears to be barred by law. However, it is equally well settled that “having no cause of action” and “non-disclosure of cause of action” are two distinct and separate concepts. A plaintiff may, in fact, have no valid cause of action on merits, yet if the plaint discloses some factual basis giving rise to a triable issue, the plaint cannot be rejected under Order VII Rule 11 CPC. Conversely, where the plaint

itself is silent, vague or deficient in material particulars so as to fail to disclose any enforceable right, the provisions of Order VII Rule 11 CPC would squarely apply. In the case of “Nasrullah Khan and another vs. Mst. Khairunnisa and others” reported as 2020 SCMR 1201 it has been held that “Limitation was not merely a technicality. Court could not allow the law of limitation to be bypassed.

Court would not come to the rescue of persons who slept over their rights”. In the case of “United Bank Limited and others vs. Noor-un-Nisa and others” reported as 2015 SCMR 280 it has been held that “under section 3 of the Limitation Act, 1908, it was the bounden duty of every court to take notice of the question of limitation even if not raised in defence by the contesting party”. In the case of “Shaikh Khalid Safdar and 4 others vs. Ali Hussain and another” reported as PLD 2023 Sindh 405 it has been held that “It is not necessary that question of limitation can only be determined after a trial but if limitation issue can be decided by looking at undisputed facts and record, then no evidence is required and application under O. VII, R. 11 C.P.C., can be decided”.

Further reliance in this regard can also be placed upon the cases of Enar Khan vs. Zafar Khan

(2020 CLC 499), and Umar Hayat vs. Muhammad Iqbal Arshad Goraya (2020 YLR 666).

9.It is also well settled that the provisions of Order VII Rule 11 C.P.C. are aimed at preventing abuse of the process of the Court and ensuring that frivolous, vexatious and meritless litigation is not allowed to proceed unnecessarily. The object behind rejection of plaint at the very threshold is to save the parties from avoidable litigation and to prevent wastage of precious judicial time where the plaint, on the face of it, discloses no cause of action or otherwise appears to be legally untenable. In the case of “Ismail vs. Syed Zulfiqar Hussain Shah and others” reported as PLD 2021 Peshawar 98 it has been held that “Incompetent, frivolous and time barred suits are liable to be buried from their inception and even in such circumstances it is duty of the court, without there being an application to invoke the provisions of O. VII, R.11, C.P.C., so that the other may not be dragged in such litigation and to save the precious time of the court”. Similarly, in the case of “Mir Sahib Jan vs. Janan” reported as 2011 SCMR 27 it has been held that “The prime object and purpose of establishment of courts is to dispense justice to the parties before it in accordance

with law and discourage frivolous litigation. The philosophy behind the provisions of Order VII, Rule 11, C.P.C. i.e., rejection of the plaint at the initial stage, is based on the concept "nipping the evil in the bud before it surfaces." For the application of this golden rule, guiding principles have been laid down by the courts from time to time. False and frivolous litigation undoubtedly need to be curbed and stringent measures should be taken by the courts at all levels. To achieve this objective when necessary, the court should burden the party concerned with heavy costs. Such a step, however, ought to be taken when the court reaches the conclusion about the falsity of stance of a party. It will be dependent upon the facts and circumstances of each case”.

Further reliance in this regard can also be placed upon the case of Rehmat Khan vs.

Muhammad Ramzan (2020 YLR 925).

10.In light of the above facts, the learned revisional court rightly appreciated the legal and factual matrix of the case. It found that the learned trial court had failed to apply the correct principles of law and had erroneously dismissed the application under Order VII Rule 11 CPC. The revisional court correctly held that the suit was hopelessly time-

barred, lacked cause of action, and was instituted with an inordinate delay without invoking the relevant legal provisions to condone the limitation.

Consequently, the revisional court allowed the revision petition filed by the respondents, accepted their application under Order VII Rule 11 CPC, and rightly proceeded to reject the plaint filed by the petitioner. The decision of the revisional court is in consonance with the settled principles of civil jurisprudence and the statutory framework governing declaratory relief and limitation, and thus, warrants no interference.

11.The learned trial Court, while

dismissing the application under Order VII Rule 11 CPC, failed to properly appreciate the legal effect of the enormous delay and the complete absence of pleadings regarding exemption from limitation. The learned revisional Court, however, rightly examined the matter in its true legal perspective and correctly concluded that the suit was patently barred by limitation and, therefore, liable to be rejected. The revisional Court was fully justified in setting aside the order dated 15.02.2023 passed by the learned trial Court..

12.It is also important to observe that the instant proceedings have been instituted in the form of a Regular First Appeal, whereas the impugned judgment was rendered by the learned revisional Court while exercising jurisdiction under Section 115, C.P.C. and not original jurisdiction. In such circumstances, the remedies available under the Code of Civil Procedure are extremely limited. It is by now well settled that once a revision under Section 115, C.P.C. has been decided by the District Court, no further revision lies before the High Court, as a second revision is not maintainable. Likewise, although rejection of a plaint under Order VII Rule 11, C.P.C. is deemed to be a decree within the meaning of Section 2(2), C.P.C., yet a first appeal under Section 96, C.P.C. is maintainable only against decrees passed by a Court in exercise of original jurisdiction. A revisional Court, while exercising powers under Section 115, C.P.C., does not act as a Court of original jurisdiction. Therefore, even if the revisional Court rejects the plaint under Order VII Rule 11, C.P.C., such order cannot be assailed through a Regular First Appeal under Section 96, C.P.C. Similarly, a second appeal is also not competent, as the same lies only against decrees passed in appellate jurisdiction. Thus, neither a

second revision, nor a Regular First Appeal, nor a second appeal is maintainable against an order passed by a revisional Court rejecting a plaint under Order VII Rule 11, C.P.C. In these circumstances, the only appropriate and lawful remedy available to an aggrieved party is to invoke the constitutional jurisdiction of this Court under Article 199 of the Constitution of the Islamic Republic of Pakistan.

Reference in this regard may be made to “Misree Khan and others vs. Abdul Ghafoor and others” reported as PLD 2025 SC 24 wherein it has been held that:

“6. The legal recourse taken by the petitioners in the High Court indicates a lack of clarity regarding the appropriate remedy for an aggrieved person when a Court exercising revisional jurisdiction issues an order to reject a plaint in accordance with Order VII, Rule 11, C.P.C. We are therefore obliged to clarify the confusion surrounding the remedies available against such orders. The petitioners had approached three distinct jurisdictions of the High Court to seek an order that would annul the judgment made by the Additional District Judge (District Court). We will analyse each of these jurisdictions to determine which one is permissible.

7.We will first examine the scope of jurisdiction established under Section 115, C.P.C. This jurisdiction is referred to as revisional jurisdiction and is conferred upon both the District Court and the High Court. Two fundamental principles regarding this matter are well founded. The first principle states that if an application has been filed under subsection (1) of Section 115, C.P.C., no further application of this nature may be made. The second principle indicates that the High Court will not entertain any proceedings in revision against a revisional order made by the District Court. The essence of these two

principles is that a second revision under Section 115, C.P.C. is not permissible. Given this legal framework, it follows that a second revision of an order rejecting a plaint under Order VII, Rule 11, C.P.C., by the District Court cannot be pursued by invoking Section 115, C.P.C. before the High Court.

8.We will now delve into the intriguing realm of the second jurisdiction of the High Court, commonly known as the first appeal. Within this category, we can identify two distinct types of first appeals: one involving an appeal against an order and the other concerning an appeal against a decree. It is important to understand that certain orders hold special significance under the law. For instance, an order that rejects a plaint under Order VII, Rule 11, C.P.C. is classified as a decree, as outlined in Section 2(2), C.P.C. This classification is vital because it informs the avenues available for challenging such orders. When it comes to appealing decrees, Section 96, C.P.C. permits appeals against all decrees without exception. In contrast, the path for appealing orders is more restrictive; appeals can only be made against those orders expressly enumerated in Section 104 or Order XLIII, C.P.C. A noteworthy point to consider is that an order made under Rule 11 of Order VII, C.P.C. is conspicuously absent from this list of appealable orders. Consequently, it remains impermissible to challenge such an order through an appeal. This brings us to a question: if a Court exercising its revisional jurisdiction issues an order to reject a plaint, would a first appeal under Section 96, C.P.C. still be an available option? A thorough examination of Section 96, C.P.C. indicates that any decree issued by a Court exercising original jurisdiction is appealable. According to Section 2(2), C.P.C., an order that rejects a plaint qualifies as a decree; nevertheless, such an order can only be appealed when issued by a Court exercising its original jurisdiction. While, a revisional court discharging jurisdiction under Section 115, C.P.C. does not operate under original jurisdiction. Therefore, although a revisional court's order rejecting a plaint is classified as a decree, it cannot be appealed under Section 96, C.P.C1.

9.The preceding analysis clearly demonstrates that when a District Court issues a decree while exercising its revisional jurisdiction, the remedy options are significantly limited under the Code of Civil Procedure, 1908. Expressly, a second revision

is not permitted, and parties cannot file a first appeal because the District Court's order arises from its jurisdiction in a revisional capacity. Furthermore, it is important to note that a second appeal against such a decree is also not permissible; this type of appeal can only be made concerning decrees issued by Courts operating in their appellate jurisdiction. However, in instances where parties feel aggrieved by revisional orders, they may pursue a writ application under Article 199 of the Constitution. It is crucial to understand that this writ application must go beyond merely alleging illegality. It must establish that the underlying merits of the case have been adversely impacted and that a party's legal rights have been compromised as a result. This requirement emphasises the need for a meaningful connection between the alleged procedural irregularities and the substantive rights of the parties involved2.

10.The analysis presented above allows us to conclude that in the present case the petitioners' writ application was a suitable and legitimate avenue to contest the revisional order issued by the Additional District Judge. It was inappropriate for their application to be returned to them under the pretext of seeking an appeal. This irregularity arose from a mix of confusion and misunderstanding within the Court process, yet it did not have an adverse impact on the substance of the petitioners' case. Given these circumstances, we have decided to overlook this procedural misstep”.

13.In view of the above, in order to avoid multiplicity of proceedings, to save precious judicial time and in the interest of substantial justice, the instant Regular First Appeal is converted into a Constitutional Petition under Article 199 of the Constitution of the Islamic Republic of Pakistan. This Court possesses ample jurisdiction to convert one form of proceedings into another where the circumstances so warrant. Reliance in this regard is placed upon “Commissioner of Income Tax (Legal)

RTO, Abbottabad vs. Ed Zublin AG Germany”, reported as 2020 SCMR 500 wherein it was held that no fetters or bar could be placed upon the High Court or the Supreme Court to convert and treat one type of proceedings into another. However, since the petition is devoid of merit, the same is hereby dismissed.

Office is directed to make necessary entry in the relevant register accordingly.

Announced

Tahir Saleem

JUDGE