Muhammad Zeeshan Ud Din Vs Mst. Rukhsana Shafique & another

JUDGMENT SHEET

PESHAWAR HIGH COURT, PESHAWAR

JUDICIAL DEPARTMENT

C.R No.850-P/2026.

Muhammad Zeeshan Ud Din Vs. Mst. Rukhsana Shafique & another.

Date of hearing 01.07.2026.

M/s Syed Ghufran Ullah Shah and Syed Abdul Basit Shah Gillani, Advocates, for the petitioner.

Nemo for respondents (in Motion).

JUDGMENT

MUHAMMAD NAEEM ANWAR, J: - This civil revision is directed against the judgment and order dated 07.05.2026 passed by the learned Additional District Judge-III, Peshawar, whereby the appeal preferred by respondent No.1 against the order dated 16.10.2025 of the learned Civil Judge-VIII, Peshawar was accepted. Through the impugned appellate judgment, the order of the trial Court allowing the petitioner's application under Order VII Rule 11 of the Code of Civil Procedure, 1908 (CPC) and rejecting the plaint was set aside. The matter was remanded to the trial Court for decision on merits after recording evidence. Simultaneously, the application filed by the petitioner under Order VII Rule 11 CPC was dismissed with costs of Rs. 50,000/-.

2.Learned counsel for petitioners were heard at considerable length and the available record has been examined.

3.The record reveals that respondent No.1, Mst. Rukhsana, instituted a suit for recovery of Rs. 14,246,722/- on account of various claims including arrears of rent, electricity charges, gas dues, maintenance expenses, penalty imposed by the Peshawar Development Authority, trade licence fees and damages. The foundation of the suit was that she is owner of House No. 31-G, Street No.2, Sector N-4, Phase-IV, Hayatabad, Peshawar, measuring fifteen marlas, which had been let out to the

petitioner. According to the plaint, the petitioner committed default in payment of rent, surrendered possession on 25.06.2020 and left the premises in a severely damaged condition. It was further alleged that after taking possession she discovered notices issued by the Town Municipal Administration and the Excise and Taxation Department regarding trade licence fees and other liabilities, besides an Iqrar Nama allegedly demonstrating that the petitioner had transferred possession of the premises to his brother who was using it as a guest house. On these allegations, recovery of the aforesaid amount was sought. The petitioner entered appearance and filed written statement contesting the suit on numerous legal and factual grounds. Alongside the written statement, an application under Order VII Rule 11 CPC was moved seeking rejection of the plaint. The learned trial Court accepted the application and rejected the plaint, which order was reversed by the appellate Court.

4.During the course of arguments, learned counsel for the petitioner was specifically confronted with the contents of the application under Order VII Rule 11 CPC and was asked to identify the statutory ground on which rejection of the plaint could legitimately be sustained. A careful reading of the application demonstrates that none of the objections raised therein correspond to any of the contingencies enumerated in Order VII Rule 11 CPC. The objections essentially constitute defences to the plaintiff's claim and are matters requiring adjudication after framing of issues and recording of evidence. More recently, in Misree Khan and others vs. Abdul Ghafoor and others (PLD 2025 SC 24), the august Supreme Court reiterated that rejection of a plaint is a drastic jurisdiction which deprives a litigant of the opportunity to substantiate his claim through evidence. Consequently, where adjudication of the controversy requires recording of evidence or determination of disputed questions of fact, rejection of the plaint would be wholly unwarranted. Such controversies must be resolved through a

regular trial and not by summarily terminating the proceedings at the threshold.

5.Order VII Rule 11 CPC embodies a summary jurisdiction of an exceptional nature. It authorizes rejection of a plaint only where one or more of the statutory conditions expressly mentioned therein exist. While exercising such jurisdiction, the Court is confined to the averments contained in the plaint and the documents accompanying it and is not permitted to embark upon an enquiry into the correctness, truthfulness or otherwise of the disputed facts pleaded by the parties. Questions involving appreciation of evidence, examination of rival claims or determination of disputed rights fall outside the scope of Order VII Rule 11 CPC. The settled principle is that where determination of the controversy requires investigation into disputed facts, appreciation of evidence or resolution of complicated questions of fact intertwined with law, the plaint cannot be rejected summarily and the matter must proceed to trial. The object of the provision is to terminate incompetent litigation at its inception, but not to deny a litigant the opportunity of establishing a cause through evidence where the plaint, on its face, discloses a triable issue.

6.The august Supreme Court in Raja Ali Shan vs. Messrs Essem Hotel Limited and others (2007 SCMR 741) authoritatively held that the Court possesses independent jurisdiction to reject a plaint, even in the absence of an application by the defendant, if the case squarely falls within the parameters of Order VII Rule 11 CPC. Equally, where the statutory conditions are absent, neither the application of a party nor the Court's discretion can be invoked to reject the plaint. Likewise, in Muhammad Zaman and others vs. Shah Wazir Khan (PLD 2002 Peshawar 45), it was observed that an incompetent lis deserves burial at its inception. However, the principle applies only where the incompetency is apparent on the face of the plaint itself. It does not extend to cases where the

alleged incompetency depends upon disputed facts or matters requiring evidence. In the present case, the petitioner sought rejection of the plaint on grounds which are essentially matters of defence. Whether rent remained unpaid; whether the petitioner was responsible for electricity and gas dues; whether the premises were converted into a guest house; whether damage was caused to the property; whether the alleged liabilities are legally recoverable; and whether the plaintiff is entitled to damages are all questions which cannot be adjudicated without recording evidence. These are neither admitted facts nor legal bars apparent from the plaint itself. Their determination necessarily requires framing of issues, production of documentary evidence and examination of witnesses. Such disputed questions cannot be resolved within the narrow compass of Order VII Rule 11 CPC.

7.It is equally well settled that rejection of a plaint and dismissal of a suit are two distinct legal concepts operating in different spheres. The former relates to the maintainability of the plaint itself, whereas the latter follows adjudication on merits after trial. These two concepts are neither interchangeable nor capable of being merged. Rejection of a plaint under Order VII Rule 11 CPC merely terminates the plaint and, subject to the provisions of law, leaves intact the plaintiff's right to institute a fresh suit under Order VII Rule 13 CPC where permissible. Conversely, dismissal of a suit is a decision on the rights of the parties after adjudication and ordinarily operates as a bar in accordance with law. This distinction has been lucidly explained by the Honourable Supreme Court in Shaheem Nasir Khan vs. Mst. Asmat Ara and others (PLD 2002 Karachi 408). The objections raised by the petitioner may ultimately constitute valid grounds for dismissal of the suit after recording evidence, but they cannot furnish a lawful basis for rejection of the plaint. The learned appellate Court, therefore, rightly concluded that the learned trial Court travelled beyond the limited jurisdiction

conferred by Order VII Rule 11 CPC and correctly remanded the matter for decision on merits after recording evidence.

8.The only part of the impugned judgment warranting interference relates to the award of costs amounting to Rs. 50,000/-The Code of Civil Procedure draws a clear distinction between ordinary costs under Section 35, C.P.C. and compensatory costs under Section 35-A, C.P.C. While Section 35 confers a discretionary power upon the Court to award ordinary costs of litigation with a view to indemnifying the successful party for expenses reasonably incurred in prosecuting or defending the proceedings, Section 35-A creates a special and penal jurisdiction enabling the Court to award compensatory costs only where the claim or defence is found to be false or vexatious to the knowledge of the party raising it and the statutory conditions prescribed therein have been strictly fulfilled. More importantly, the jurisdiction to award compensatory costs under Section 35-A, C.P.C. is vested exclusively in the Court of first instance trying the suit. The appellate Court does not possess an independent or concurrent jurisdiction to exercise that power. This legal position is placed beyond doubt by the proviso to Order XLI, Rule 33, C.P.C., which expressly restrains an appellate Court from making any order under Section 35-A in respect of an objection upon which the trial Court has omitted or refused to pass such an order. Although Rule 33 confers wide discretionary powers upon an appellate Court to pass any decree or order which ought to have been passed by the Court below, the proviso engrafts a specific statutory limitation by excluding the jurisdiction to award compensatory costs under Section 35- A, C.P.C. Consequently, while an appellate Court may affirm, modify or set aside ordinary costs awarded under Section 35, C.P.C., it is denuded of jurisdiction to independently impose compensatory costs. This principle has been authoritatively affirmed in Sindh Industrial Trading Estates through its Secretary, Karachi Vs. Mst. Qamar Hilal and 5 others (2001 SCMR 1680) and reiterated in S.I.T.E. vs. Mst. Qamar Hilal

and others (2002 MLD 1569), wherein it was held that the special jurisdiction conferred by Section 35-A, C.P.C. is exercisable only by the trial Court and cannot be assumed by the appellate Court in view of the express bar contained in the proviso to Order XLI, Rule 33, C.P.C. Reliance may be placed on the principle enunciated in the cases of Abdul Rahim Sathi vs. Ghulam Sarwar and 11 other (2009 CLC 1034), Mir Nawaz Khan vs. Gul Ayub Khan and another (2003 CLC 1428), Asghar Ali Khan vs. Mst. Feroza Begum and others (2004 YLR 1066), Muhammad Zia vs. Ch. Nazir Muhamad Advocate and others

(2002 CLC 59).

9.In the present case, the learned appellate Court rightly concluded that the plaint could not have been rejected under Order VII, Rule 11, C.P.C., as the controversy between the parties involved disputed and intricate questions of fact and law requiring determination after framing of issues and recording of evidence. The order of remand, therefore, suffers from no legal infirmity and calls for no interference. However, while allowing the appeal, the learned appellate Court further burdened the petitioner with costs of Rs. 50,000/-. The nature and tenor of the order unmistakably demonstrate that the amount was imposed as compensatory costs and not as ordinary costs under Section 35, C.P.C. Such an exercise of jurisdiction is expressly prohibited by the proviso to Order XLI, Rule 33, C.P.C. and is, therefore, without lawful authority. Accordingly, this civil revision fails on merits insofar as the remand of the suit for trial is concerned, as the learned appellate Court rightly held that the controversy could not be adjudicated within the limited scope of Order VII, Rule 11, C.P.C. and necessarily required a full- fledged trial. However, the direction imposing costs of Rs. 50,000/- being beyond the jurisdiction vested in the appellate Court under Section 35-A read with the proviso to Order XLI, Rule 33, C.P.C., is declared illegal and is hereby set aside.

10.Resultantly, the civil revision is dismissed subject to the modification that the award of costs contained in the impugned appellate judgment shall stand vacated. The parties shall appear before the learned trial Court on the date fixed, where the suit shall proceed expeditiously and be decided strictly in accordance with law, on the basis of the pleadings and evidence adduced by the parties, uninfluenced by any observation contained herein except to the extent of the legal questions determined in this judgment. There shall, however, be no order as to costs. Announced.

J UD G E

Abdul Wahid, JSS (SB) Hon’ble Mr. Justice Muhammad Naeem Anwar.