Habib Ur Rehman & others Vs Mst. Dilshad Begum & others

JUDGMENT SHEET

PESHAWAR HIGH COURT

MINGORA BENCH

(Judicial Department) W.P. No. 1128-M/2026 With interim relief

JUDGMENT

Date of hearing: 20.07.2026

Petitioners:- (Habib Ur Rehman & others) by Zain Ul Abideen, AHC, for the petitioner.

SALAH-UD-DIN, J.- Through this writ petition, the petitioners, have challenged the orders and judgments of the learned lower Courts i.e. Court of learned District & Sessions Judge, Malakand at Batkhela, dated 16.04.2026, and Court of learned Civil Judge-II, Malakand at Batkhela dated 25.09.2025, wherein the stance of petitioner was dismissed by both the learned lower courts.

2.Brief facts of the case that the present respondent No.1/ plaintiff instituted a suit before the learned Civil Judge-II/ Illaqa Qazi, Batkhela, against the defendants, seeking specific performance of Agreement/ Undertaking dated 08.04.2006 bearing No.6081. Through the said suit, the respondent No.1/ plaintiff claimed her alleged share in the legacy of her deceased father, Shakir Rahmat Ali /JSS (S.B.) Hon'ble Mr. Justice Salah-Ud-Din

Ullah Khan, and sought possession thereof. She also sought a decree for permanent injunction against the defendants in respect of the property in question.

3.Upon service of summons, the

defendants appeared before the learned trial Court and contested the suit by filing their written statement. During the pendency of the suit, the petitioners also filed an application under Order VII Rule 11 CPC for rejection of the plaint on various legal and factual grounds. After hearing the learned counsel for the parties and examining the record, the learned trial Court, vide order dated 25.09.2025, dismissed the said application.

4.Feeling aggrieved and dissatisfied with the order dated 25.09.2025, the present petitioners approached the learned District Judge, Malakand at Batkhela, through a revision petition. However, after hearing the learned counsel for the parties and examining the record, the learned District Judge, Malakand at Batkhela, vide order dated 16.04.2026, dismissed the revision petition and maintained the order passed by the learned trial Court.

Rahmat Ali /JSS (S.B.) Hon'ble Mr. Justice Salah-Ud-Din

5.Being aggrieved by and dissatisfied with the concurrent orders dated 25.09.2025 and 16.04.2026, passed by the learned Courts below, the present petitioners have invoked the constitutional jurisdiction of this Honourable Court through the instant writ petition.

6.I have heard arguments of learned

counsel for the petitioners and perused the available record with his able assistance.

7.I have carefully examined the record available on file, the pleadings of the parties and the orders passed by the learned Courts below. The controversy at this stage is confined to the question whether the plaint filed by respondent No.1 was liable to be rejected under Order VII Rule 11 CPC.

The scope of the said provision is limited, and for deciding an application thereunder, the contents of the plaint and the documents relied upon by the plaintiff are to be examined to see whether the suit, on the face of the record, is barred by any law or discloses no cause of action. The disputed questions of fact, which require evidence for their determination, ordinarily cannot be conclusively decided at this preliminary stage.

Rahmat Ali /JSS (S.B.) Hon'ble Mr. Justice Salah-Ud-Din

In the present case, respondent No.1 has specifically based her claim upon the Agreement/Undertaking dated 08.04.2006 bearing No.6081 and has pleaded that through the said document her share in the legacy of her deceased father, Shakir Ullah Khan, was acknowledged and certain properties were agreed to be given to her.

She has further pleaded that although an earlier suit instituted by her in the year 2011 was withdrawn after the property was allegedly handed over to her in terms of the said Agreement/Undertaking, the defendants subsequently re-occupied the property and started receiving its income from April 2023.

On the basis of these pleaded facts, she has sought specific performance of the

Agreement/Undertaking, possession of her claimed share and permanent injunction. Thus, the plaint does not appear to be without a cause of action on its face. Whether the facts pleaded by the plaintiff are ultimately proved or not is a matter to be determined after the parties lead evidence.

8.The principal objection raised by the petitioners is that the earlier suit filed by respondent No.1 in the year 2011 creates a bar of res judicata or constructive res judicata. However, the mere Rahmat Ali /JSS (S.B.) Hon'ble Mr. Justice Salah-Ud-Din

institution and withdrawal of an earlier suit does not, by itself, establish that the present claim is barred. For determining such a plea, it is necessary to examine the pleadings, nature of relief, subject matter and the circumstances in which the earlier proceedings came to an end. It is also necessary to determine whether the issue now raised was directly and substantially in issue in the previous proceedings and whether it was finally adjudicated between the same parties. The plaint itself contains an explanation regarding the earlier suit and alleges a subsequent re-occupation of the property by the defendants. Therefore, the plea of res judicata cannot be treated as an admitted or apparent bar merely on the basis of the fact that an earlier suit had been withdrawn. Such a question requires proper examination of the previous proceedings and, where necessary, evidence.

The objection regarding limitation also does not justify rejection of the plaint at this stage.

The petitioners have relied upon the age of the Agreement/Undertaking and the earlier litigation to contend that the present suit is hopelessly time- barred. On the other hand, respondent No.1 has pleaded a subsequent cause for seeking relief, Rahmat Ali /JSS (S.B.) Hon'ble Mr. Justice Salah-Ud-Din

namely, the alleged re-occupation of the property and deprivation of its income from April 2023. The question as to when the cause of action for the present relief actually arose, whether the plaintiff was put in possession pursuant to the Agreement/Undertaking, when she was allegedly dispossessed, and whether the subsequent conduct of the defendants gave rise to a fresh or continuing cause of action, cannot safely be determined without examining the relevant record and evidence. Therefore, limitation in the circumstances of the present case is not such a clear and self- evident bar as would warrant rejection of the plaint under Order VII Rule 11 CPC.

9.The petitioners have further alleged that respondent No.1 had already received her share and thereafter sold the same, and therefore she is not entitled to maintain the present suit. This objection again depends upon disputed factual matters. The factum of delivery of possession, the nature and extent of the property allegedly delivered, the alleged subsequent sale and its legal effect upon the claim of respondent No.1 are matters which cannot be conclusively determined merely from the assertions made in the application Rahmat Ali /JSS (S.B.) Hon'ble Mr. Justice Salah-Ud-Din

under Order VII Rule 11 CPC. These questions are directly connected with the merits of the controversy and require appreciation of documentary and oral evidence.

Likewise, the allegation that the

Agreement/Undertaking dated 08.04.2006 is forged, fabricated or self-created does not furnish a ground for rejection of the plaint. Rather, such an allegation itself demonstrates that the genuineness and legal effect of the document are seriously disputed between the parties. Once the plaintiff relies upon the document as the foundation of her claim and the defendants dispute its genuineness, the issue necessarily becomes one requiring determination on evidence. At the stage of Order VII Rule 11 CPC, the Court is not expected to conduct a mini-trial or record findings upon disputed questions of fact which properly fall for determination after the parties have been afforded an opportunity to produce their evidence.

10.It is also significant that the relief claimed in the present suit is not founded merely upon the historical existence of the Agreement/ Undertaking; rather, the plaintiff has pleaded subsequent events, including alleged re-occupation Rahmat Ali /JSS (S.B.) Hon'ble Mr. Justice Salah-Ud-Din

of the property by the defendants and receipt of its income. Whether these subsequent events actually occurred, whether the plaintiff was previously put in possession, and what legal consequences flow from such events are questions going to the root of the merits of the suit. Such matters cannot be prejudged while considering a preliminary application for rejection of plaint.

Thus, on a cumulative consideration of the pleadings and the objections raised by the petitioners, no clear legal bar is found from the plaint itself which would attract Order VII Rule 11 CPC. The objections regarding res judicata, limitation, prior receipt or sale of the alleged share, and genuineness of the Agreement/Undertaking are substantially dependent upon disputed facts and appreciation of evidence. They may be raised and determined at the appropriate stage of the proceedings, but they do not, in the circumstances of the present case, furnish a lawful basis for terminating the suit at its inception.

11.Other than the above, at the time of deciding an application filed under Order VII Rule 11 CPC for the rejection of the plaint, the Court has to consider the contents of the plaint and every fact Rahmat Ali /JSS (S.B.) Hon'ble Mr. Justice Salah-Ud-Din

mentioned in the plaint has to be taken as true and correct and even the written statement or a plea taken in it could not be taken into consideration. Even the fact/apprehension that the plaintiff may not ultimately succeed in establishing the averments made in the plaint, cannot be a ground for rejecting the plaint under Order VII Rule 11 CPC. In the case of Jewan and 07 others v. Federation of Pakistan through Secretary, Revenue, Islamabad and 02 others reported as 1994 SCMR 826, the Hon’ble apex Court has held as under:

“A plain reading of the Order VII, Rule 11, C.P.C. would show that the rejection of plaint under this provision of law is contemplated at a stage when the Court has not recorded any evidence in the suit. It is for this reason precisely, that the law permits consideration of only averments made in the plaint for the purpose of deciding whether the plaint should be rejected or not for failure to disclose cause of action or the suit being barred under some provision of law. The Court while taking action for rejection of plaint under Order VII, Rule 11, C.P.C. cannot take into consideration pleas raised by the defendant in the suit in his decease, as at that stage the pleas raised by the defendants are only contentions in the proceedings unsupported by any evidence on record. However, if there is some other material before the Court apart from the plaint at that stage which is admitted by the plaintiff, the same can also be looked into and taken into consideration by the Court while rejecting the plaint under Order VII, Rule, 11 C.P.C. Beyond that the Court would not be entitled to take into consideration any other material produced on record unless the same is brought on record in accordance with the rules of evidence.”

Rahmat Ali /JSS (S.B.) Hon'ble Mr. Justice Salah-Ud-Din

Similarly, in an identical matter, this Court in the case of Shehzada v. Khairullah and others reported as 2012 CLD 758 Peshawar, has also held:

“Keeping the 'ratio decedenti' of the aforementioned judgments of the august Supreme Court, it would be safe to state that the Courts entertaining the application for rejecting of the plaint under Order VII, Rule 11 of C.P.C. has to take into account the plaint and not the stance taken by the defendants in their written statement, if the same was beyond the pale of what was contained in the plaint.”

12.The learned trial Court, therefore, committed no illegality in refusing to reject the plaint at the preliminary stage. The learned District Judge, while exercising revisional jurisdiction, also correctly found no material illegality, irregularity or jurisdictional defect in the order of the learned Trial Court warranting interference. The concurrent view of the learned Courts below is supported by the nature of the pleadings and the disputed questions involved. Consequently, the application filed by the present petitioners under Order VII Rule 11 CPC was rightly dismissed, and the impugned orders do not call for interference in the constitutional jurisdiction of this Court.

13.In view of the above discussion, the impugned Judgments and orders of the two Courts Rahmat Ali /JSS (S.B.) Hon'ble Mr. Justice Salah-Ud-Din

below are not open to any exception and hence the instant petition is hereby dismissed, in limine.

NNOUNCED

Dt: 20.07.2026 -Sd-

JUDGE

Rahmat Ali /JSS (S.B.) Hon'ble Mr. Justice Salah-Ud-Din