ORDER SHEET.

IN THE HIGH COURT OF SINDH BENCH AT SUKKUR.

C.P.No.D-2911, of 2012.

Applicant: Mohammad Essa through Mr. Ghulamullah Memon Advocate.

Respondents: Muhammad Siddique & others.

Date of Hearing: 05.12.2012.

O R D E R.

SALAHUDDIN PANHWAR, J- The Petitioner Muhammad Essa has assailed order dated 31^st January, 2012, passed by District judge, whereby, civil revision N.03 of 2012, filed by petitioner was dismissed and order of Senior Civil Judge on application under order 7 rule 11 CPC was maintained.

2. Relevant facts leading to the instant petition, in nut-shell, are that the respondent No.1 filed FC Suit No.39 of 2011 before the court of Senor Civil judge, Moro against the petitioner/defendant for Specific Performance of Contract; the respondent No.1/ plaintiff entered into a contract of sell with defendant/petitioner, in respect of the suit plot for a total sale consideration of Rs.5,80,000/- he claimed to have made full payments under receipts and endorsement on sale agreement, which are attested and witnessed; and also claimed delivery of possession but execution of registered sale deed was avoided by the petitioner/defendant No.1 hence prayed for execution of registered sale deed in his favour.

3. Petitioner/defendant No.1 caused his appearance; filed written statement, wherein, denied the genuineness of document and even claimed the signature to be bogus one. Thereafter petitioner/defendant, filed application under order 7 rule 11 CPC; same was dismissed by trial court vide order dated 31-1-2012. The petitioner/defendant No.1 assailed such order in Civil Revision No.03/2012 before District Judge, Naushero Feroz; same was vide order dated 10.0.2012.

4. While responding to the issue of maintainability of the petition, Mr. Ghulamullah Memon, learned counsel for the petitioner has argued that since both learned lower courts erred in law, while not appreciating the fact that plaint of the plaintiff/respondent No.1 was liable to be rejected hence petition is maintainable; that sale agreement dated 25.8.2010, itself is void and fabricated document on the ground that one person namely Muhammad Dawood Abbasi acted in various capacities; the sale agreement is contradictory with regard to possession of suit plot as Commissioner, reported that possession is with petitioner; the suit of the plaintiff was barred under section 21 (a) of the Specific Relief Act, hence the petition is maintainable.

5. We have carefully considered the contention of Mr. Ghulam-ullah Memon, learned counsel for the petitioner/defendant No.1, regarding question of maintainability of the Constitution Petition, in hand, against the concurrent findings of two courts below.

6. Since, it is settled principle of law that while deciding an application under Order 7 Rule 11 C.P.C, the court is legally required to confine itself to the averments of the plaint only and the same are to be taken as true, the court can take into consideration, even defence or document(s), brought onto record by defence side, but this exception is subject to the limitation that such defence or document should be irrefutable rather admitted. The reference, if any, can well be made to case laws, reported in S.M. Shafi Ahmad Zaidi through Legal Heirs v Malik Hassan Ali Khan (Moin) through Legal Heirs (2002 SCMR 338, wherein, it is held:-

“14.Besides, averments made in the plaint other material available on record which on its own strength is legally sufficient to completely refute the claim of the plaintiff, can also be looked into for the purpose of rejection of the plaint. It does not necessarily mean that the other material shall be taken as conclusive proof of the facts stated therein, but it actually moderates that other material on its own intrinsic value be considered alongwith the averments made in the plaint”.

It is important to add here that an issue before the Civil Court is brought through a cause/issue is to be adjudicated by the court and it is the judgment of the Court; which determines the rights and liabilities hence rejection of plaint has been made to bury those suits in its inception, which, even, at the end of the day, would fail on count of some legal bar. Thus we do not find any substance in the plea of learned counsel for the petitioner/defendant No.1 that since one of the witness to document acted in various capacities hence this was sufficient to declare the document as illegal.

7. As regard the plea of the learned counsel for the petitioner/defendant No.1, that since the document is not registered one hence the plaint suit should have been rejected being hit by Registration Act, we, believe, that subsection (2)(v) of Section 17 of the Registration Act would suffice to this objection. For understanding and convenience the same is reproduced:-

(v) any document not itself creating, declaring, assigning, limiting or extinguishing any right, title or interest of the value of one hundred rupees and upwards to or in immovable property, but merely creating a right to obtain another document which will, when executed, create, declare, assign, limit or extinguish any such right, title or interest, or

Further, this view has been made clear by insertion of the Explanation, at the bottom of Section 17 of the Registration, Act, 1908.

8.   We can safely add here that a document of sale agreement, by itself, does not create any legal title but creates a right to obtain another document i.e. register deed(s) which creates legal character hence it can safely be said that sale agreement is not compulsorily required to be registered, as held by honourable Supreme Court in case of Muhammad Yousuf Vs Munawar Hussain & 5 others, reported in 2000 SCMR 204,which is :-

“In this view of the matter, the right course for the petitioner would have been to institute a suit for Specific Performance if at all such agreement was executed. The agreement to sell by itself cannot confer any title on the vendee because the same is not a title deed and such agreement does not confer any propriety right, and thus, it is obvious that the declaratory decree as envisaged by section 42 of the Specific Relief Act, cannot be awarded because declaration can only be given in respect of a legal right or character. The only right arising out of an agreement to sell is to seek its specific performance and in case the vendee has been put in possession, the same is protected under section 53-A of the Act”.

9. We also do not find any substance in the ground, taken by learned counsel for the petitioner/defendant No.1, that since document is hit by provision of Section 21 (a) of the Specific Relief Act, 1877, thus, plaint should have been rejected. Without prejudice to the legality of this provision; it is pertinent to say that before insisting upon this clause the petitioner/defendant No.1 has to admit the document, which he doesn’t; thereby the petitioner/defendant No.1 cannot claim rejection of the plaint by blowing hot and cold in a single breath. However, the application of the Section 21(a) of the Specific Relief Act, 1877 can well be examined by the learned trial Court judge at the end of the day.

10. Since the above discussions has made it clear that pleas of the learned counsel for the petitioner/respondent No.1 are devoid of substance and the order(s) of both the courts below are proper hence needs no interference.

11.     Above, are the reasons of our short order dated 05.12.2012; whereby instant petition was dismissed in limine.

JUDGE

JUDGE

Akbar.