IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA
Civil Appeal No. S-04 of 2020
Appellants Nisar Mustafa Shaikh (Since dead) represented throughhis L.Rs
Through Mr. Ghulam Dastagir Shahani, advocate,
Respondent: Sajid Ahmed Kalhoro,
Through Mr. Abdul Rehman Bhutto, advocate,
Date of hearing: 15-10-2020 &
26-11-2020.
Date of Decision: 18-12-2020.
J U D G M E N T
Zulfiqar Ali Sangi, J.This Civil Appeal is directed against the order dated 16.04.2020, passed by the Court of learned III-Additional District Judge, Larkana, dismissing the plaint of Summary Suit No.01 of 2020 (re: Nisar Mustafa and others V/s Sajid Ahmed Kalhoro) under Order VII Rule 11 C.P.C, filed by the appellant/plaintiff against the respondent/defendant.
2. Brief facts of the summary suit are that the defendant/respondentwas dealing with the business of Estate Property since long, whereby he used to purchase and sell commercial as well as residential properties on profits basis and Nisar Mustafa Sheikh, the husband of plaintiff No.1 and father of plaintiffs No.2 to 4, during his life time used to invest his money in the aforesaid business of the defendant and in turn the defendant was paying due share out of the earnings from his business transaction. It is further stated by the appellants/plaintiffs that in the month of July, 2017 an amount of Rs.48,00,000/- (rupees forty eight lacs) only of late Nisar Mustafa Shaikh stood due/outstanding against defendant and by admitting such fact two cheques ofBank Al-Habib Limited, Lahori Mohalla Larkana Sub Branch of Larkana for Rs.500,000/- dated 12.06.2017 and Rs.43,00,000/- dated 11.09.2017 were issued and delivered by the defendant Sajid Ahmed of his Account No.PK 68 BAHL 1064 0095 0053 1901, in the name of late Nisar Mustafa Shaikh in respect of his aforementioned dues, to be deposited in his (Nisar Mustafa Shaikh’s) Account No.215-0 of NBP, Main Branch, Larkana and Account No.9606-9 of NBP Bank Square Branch, Larkana. It is further asserted in the suit by the appellants/plaintiffs that aforesaid cheque of Rs.500,000/- dated 12.06.2017 was deposited with depositing slip bearing Serial No.7741356 on 13.06.2017 by late Nisar Mustafa Shaikh in his Account No.9606-9, which was dishonored and returned unpaid by the manager, Bank Al-Habib Ltd Lahori Mohalla Branch, Larkana showing the reason as “Funds insufficient” and such memo dated 14.7.2017 was also issued by the said bank. It is stated that again another aforementioned cheque of Rs.43,00,000/- dated 11.09.2017 was deposited by late Nisar Mustafa Shaikh in his account No.215-0 of NBP Main Branch, Larkana for the purpose of transfer of the amount thereof in his said account, the same was also dishonored and returned unpaid by the Manager, Bank Al-Habib Ltd, Lahori Mohalla Branch, Larkana, showing the reason as “Funds Insufficient” and such memo dated 12.09.2017 was issued by the said bank. It is mentioned in the suit that after that, late Nisar Mustafa Shaikh kept on approaching the defendant for payment of his aforementioned lawful amount, but the defendant kept him on avoiding on one or the other false pretexts. The plaintiffs stated in the suit that subsequently, the husband of appellant No.1-A/plaintiff No.1 and father of rest plaintiffs expired on 15th of March, 2018 and after that the appellant/plaintiff through the plaintiff No.2 Adil Nisar started approaching the respondent/defendant for payment of the aforementioned lawful amount/dues of late Nisar Mustafa Sheikh, who was avoiding to pay the same to the appellants on one or the other false pretexts. It is also mentioned in the suit that the appellants then kept on approaching and requesting the respondent/defendant for payment of Rs.48,00,000/- of late Nisar Mustafa Shaikh but to no avail, hence the appellant through their advocate sent and served a legal Notice dated 18.10.2019 upon the respondent/defendant through TCS, which was duly served upon the respondent/defendant, but he did not furnish his reply. The appellants/plaintiffs also stated in the plaint that from the conduct of the respondent/defendant, it is clear that he has no intention to repay the amount of Rs.48,00,000/- to the appellants/plaintiffs which he wants to usurp with malafide intention and ulterior motives. It is also stated in the plaint that due to above act of respondent/defendant, not only late Nisar Mustafa, but the plaintiffs have suffered a lot by wasting precious time and energy so also their reputation, respect and dignity have also been injured and respondent/defendant has created harassment and humiliation for the appellants/plaintiffs intentionally with ulterior motives as such the appellants are entitled for damages and compensation to the extent as Court deems fit.
2. As per plaint cause of action firstly arose to the appellants for filing of the present suit when payments were refused and memos were issued by the banks to late Nisar Mustafa Shaikh, the cause of action recurred when after death of late Nisar Mustafa Shaikh, the appellant No.1-A/plaintiff through plaintiff No.1 approached the respondent from time to time but he did not pay any heed, the cause of action is continue one by till today, therefore, the appellants/plaintiffs filed summary suit with the following prayers:
a. That this Honourable Court may be pleased to recover an amount of Rs.48,00,000/- from the defendant and be paid to the plaintiffs with profits at bank rates till realization of the actual amount.
b. Damages to the extent as Honourable Court deems fit may also be awarded to the plaintiffs in view of facts and circumstances of the case.
c. Costs of the suit or any other relief as Honourable Court deems fit may also be granted to the plaintiffs.
3. After service of notice, the respondent/defendant appeared and filed application for leave to defendant/leave to appear as well as written reply/statement, denying the averments of the plaint and prayed for dismissal of the instant suit.
4. The learned Trial Court after hearing the parties’ counsel, rejected the plaint under Order VII Rule 11(d) CPC being filed in non-compliance of Order XXXII Rule 2 CPC and Rule 113 of Sindh Civil Court Rules.
5. The learned counsel for the appellants has mainly contended that the impugned judgment and decree passed by the learned Trial Court are based on misreading and non-reading of the pleadings; that there are number of appellants/plaintiffs but for want of affidavit on behalf of one of the minor as next friend, entire plaint has been rejected and they have been ousted from their lawful right, as there is no other claimant entitled for a disputed amount; that it is settled law that only affidavit is to be sworn on behalf of the minor being a next friend and no permission was necessary to be sought but such application was submitted with affidavit disclosing therein that particular person, namely, Danyal Nisar is minor and interest of plaintiff No.1-A is not adverse to the interest of above-named minor and appellant No.1 is a fit women to be appointed as next friend being a real mother; that the suit was filed through one of the legal heir, who was also appointed as attorney by rest of the legal heirs and signed by the wife of the deceased and minor has not to sign a particular document, as such only attorney can sign the memo of plaint; that learned trial court while rejecting the plaint failed to consider that non filing of affidavit/non signing of vakalatnama on behalf of minor at the most be considered as a irregularity and not illegality, though irregularity is curable and always condone and plaint cannot be rejected; that summary suit is based on cheques being dishonoured as suit for recovery was filed U/O 37 Rule 2 C.P.C, as such the plaint was not to be rejected due to non-compliance of order XXXII Rule 2 and Rule 13 of Sindh Civil Court Rules, as only the contents of the suit were to be considered or plaint was to be returned in order to submit the same in a proper forum; that learned Trial Court has ignored the factual controversy involved between the parties and without recording the evidence of either party rejected the plaint of the appellants/plaintiffs hence committed illegality. Learned counsel, therefore, prays that this civil appeal may be allowed and the impugned order be set-aside.
6. Conversely, learned counsel for the respondent/ defendant has supported the impugned order and has contended that the learned Trial Court after properly examining the material available on record has rightly rejected the plaint; suit was not maintainable under order XXXII Rule 2 and Rule 13 of Sindh Civil Court Rules, hence the appellants can file fresh suit for the same claim. He has prayed for dismissal of the instant civil appeal.
7. I have heard the learned counsel for the appellant and learned counsel for the respondent and perused the material available on the record with their able assistance.
8. Perusal of the impugned order shows that the plaint was rejected only for non-compliance of Rule 113 of Sindh Civil Court Rules that no affidavit was filed by next friend by showing that he has no adverse interest to that of the minor, however it is clear in the order that a note was mentioned on the title of the plaint that the minor plaintiff No. 1-D is represented through his mother, plaintiff No. 1-A as his next friend and it is also mentioned in the order that memo of the plaint is also annexed by application under order XXXII Rule I C.P.C wherein it is prayed to appoint plaintiff No. 1-A as next friend/guardian ad-litem of the plaintiff No. 1-D for the purpose of disposal of the summary suit.
9. The purpose of Rule 113 of the Sindh Civil Courts Rules is to save the interest of the minor. For the sake of clarity Rule 113 of Sindh Civil Court Rules is produced as under:-
"113. When a suit is brought on behalf of a minor, the next friend shall make an affidavit, to be presented with the plaint in the suit, that he has no interest directly or indirectly adverse to that of the minor, and that he is otherwise a fit and proper person to act as such next friend. The age of the minor shall also be stated. No formal appointment of the person instituting the suit as next friend need be made."
10. Trial court had not given consideration to the affidavit filed with the application under order XXXII Rule I C.P.C, filed with the plaint, wherein in the para 3 of the affidavit the compliance of Rule 113 of the Sindh Civil Court Rules has been made. Para No.3 of the affidavit is re-produced as under:-
"3. That interest of plaintiff No.1-A arenot adverse to the interests of plaintiff No.1-D. Moreover she is a fit woman to be appointed as next friend/guardian-ad-litem of the plaintiff No.1-D being his real mother.
11. The plaint itself speaks that the minor alone was not plaintiff before the trial court and other persons were also made as plaintiffs and claimed their right.A plaint under Order VII, Rule 11, C.P.C. can be rejected, if came within the mischief of Order VII, Rule 11, C.P.C. and for rejecting the plaint, the whole contents of the plaint are to be seen and the contents of plaint has to be treated as true on its face value. The factual inquiry cannot be undergone and the matter, which requires evidence, cannot be considered.The plaint cannot be rejected on the basis of vagueness in pleadings or for want of better particulars, and instead rejectingthe plaint trial court should provide an opportunity to the plaintiff to amend the plaint under Order VI, Rule 17, C.P.C. or to made compliance of any provision.
12. In view of the above the order dated 16-04-2020,passed by the Court of III-Additional District Judge (MCAC), Larkana is set aside and this civil appeal is allowed. The case is remanded to the trial Court to decide the same in accordance with law.
13. The parties are left to bear their own cost.