IN THE HIGH COURT OF SINDH AT KARACHI

 

SUIT NO.553 of 2000

                                               

Mst.Nasreen Yousuf -----------------------------------------------------Plaintiff

 

Versus

 

Jamil Akhtar Kiyani & others ------------------------------------Defendants

 

 

For hearing of CMA No.429 of 2007`

 

Date of hearing                               23.4.2015

 

Date of order                                   08-07-2015

 

Plaintiff                                             Through Mr. Abdul Wahab Balouch,

                                                            Advocate.

 

Defendant No.7                                Through Mr.Khawaja Shamsul

Islam, Advocate.

 

O R D E R  

 

 

Muhammad Junaid Ghaffar, J:-   This is an application under Order 7 Rule 11 read with Section 151 CPC, filed on behalf of defendant No.7, whereby, it has been prayed that the plaint in the instant matter be rejected, for the reasons as stated in the application duly supported by the affidavit.

 

2.         The facts as stated in the Memo of plaint are that defendant No.1, who is a real uncle of the plaintiff and with whom she had very cordial relations, persuaded the plaintiff to purchase House No.11/II, measuring 1000 sq. yds, situated on Khayaban-e-Shamsheer, Phase-V, Defence Housing Authority, Karachi, which was in the name of defendant No.2 (wife of defendant No.1). It is further stated that on payment of sale price, the sale deed was registered on 26.4.1989 in the office of defendant No.4. It is further stated that since the plaintiff was residing outside the Country, the property was being managed by defendant Nos.1 and 2, who were also in possession of the property documents as well. According to the plaintiff, when in November, 1999, they visited the said property, they were shocked to find-out that the same belongs to defendant No.3 and on enquiry from the office of D.H.A; they came to know that on the basis of a forged Sale Deed, the property has been mutated in favour of the defendant No.3. In view of such position, plaintiff had filed instant Suit and vide order dated 26.4.2000; parties were directed to maintain status quo. It further appears that thereafter summons were issued and defendants No.1 & 2 had entered appearance, whereas, defendant No.3 despite service through publication chose not to appear and vide order dated 10.4.2001, the defendant No.3 was declared ex-parte. Thereafter vide order judgment 28.8.2001 instant Suit was decreed in favour of the plaintiff, as the plaintiff had dropped the proceedings against defendant Nos.1 and 2, whereas, defendant No.3 was declared Ex-parte. Subsequently, defendant No.7 filed J.M.No.44 of 2001 Under Section 12(2) CPC on the ground that the Judgment and decree in the Suit was obtained by fraud and mis-representation. A learned Single Judge of this Court vide order dated 6.11.2002 allowed the application Under Section 12(2) CPC by setting-side the Judgment and decree dated 28.8.2001 and also directed that the applicant (defendant No.7) be joined as one of the party in Suit No.553 of 2000. Thereafter, the said order, was challenged by the plaintiff through High Court Appeal No.314 of 2002, which was also dismissed on 27.2.2003 by a learned Division Bench of this Court, against which, plaintiff filed C.P.L.A. No.138-K/2003, which was also dismissed vide order dated 17.3.2003. Thereafter amended plaint has been filed, whereas, the present applicant (defendant No.7) has also been arrayed as party in the proceeding, who has now filed instant application.

 

3.         Mr. Khawaja Shamsul Islam, learned Counsel for the applicant has contended that the Suit is barred Under Section 91 of the Limitation Act, whereas, the Suit against defendant No.3 has been wrongly filed as defendant No.3 had since expired, which fact was well within the knowledge of the plaintiff. Learned Counsel further contended  that  since the instant Suit is collusive in nature, in as much as the proceedings against defendant Nos.1 and 2, after their appearance in the instant matter have been dropped, whereas, defendant No.3 was declared Ex-parte and thereafter Judgment and decree was obtained. Learned Counsel further submitted that the Sale Deed which has been challenged through instant Suit is dated 24.1.1991, whereas, the Sale Deed in favour of defendant No.7 is dated 22.11.1997; hence, instant Suit has been filed beyond the Limitation period of three years. Learned Counsel also referred to Judgment dated 27.2.2003 passed in H.C.A.No.314 of 2002 (Para 7) and has contended that since the application filed under Section 12(2) CPC was decided after recording evidence, led by the present applicant, whereas, the plaintiff had chosen not to come forward to lead any evidence, the matter come to an end and on this premise, learned Division Bench while deciding the High Court Appeal has been pleased to observe that respondent No.1 (defendant No.3)  had not come forward to contest the Suit and in such circumstances, an Ex-parte decree was passed in favour of the plaintiff without even taking her own affidavit in Ex-parte proof, production of any relevant record and examining the question of limitation which prima facie seems to be involved  in the instant matter.  Per learned Counsel the plaint  has not disclosed any cause of action against the present applicant and since the plaintiff had not entered into the witness box at the time of hearing of application Under Section 12(2) CPC, a negative inference must be drawn against the plaintiff.  In support of his contention, learned Counsel has relied upon the case of Federation of Pakistan, through Home Ministry of Defence and other Vs Jaffer Khan and others reported in PLD 2010 SC 604.

 

4.         Conversely, Mr. Abdul Wahab Balouch, learned Counsel for the plaintiff has contended that a similar type of application Under Order 7 Rule 11 CPC   was earlier filed by defendant Nos.1 and 2 on the same ground of limitation and non-disclosure of cause of action, however, the same was dismissed vide order dated 23.5.2001, whereas, issues have already been framed with regard to maintainability of the Suit as well as Limitation, therefore, instant application is misconceived. Learned Counsel further contended that the matter requires recording of evidence, as the record of D.H.A. still shows that the property in question is in the name of plaintiff. Counsel further submitted that the plaint cannot be rejected in peace meal, whereas, proper cause of action has been disclosed in the plaint; therefore, instant application is liable to be dismissed.

 

5.         I have heard both the learned Counsel and perused the record. The primary objection being raised on behalf of the defendant No.7 through listed application  is with regard to question of limitation as well as non-disclosure of cause of action and non-joining the defendant No.7 allegedly, as party in the proceedings. Insofar as the question of limitation is concerned, perusal of the record reflects that on the same grounds, the defendant Nos.1 and 2 had earlier filed an application Under Order 7 Rule 11 CPC bearing CMA No.3101 of 2001 and had contended that the Suit is barred under Sections 91 and 120 of the Limitation Act, 1908, whereas, the plaint does not disclose cause of action against defendants No.1 & 2. The said application was dismissed by a learned Single Judge, vide order dated 23.5.2001 in the following terms.

“This application is U/O 7 Rule 11 CPC is moved with prayer seeking rejection of plaint on the ground of limitation and non-disclosure [of] the cause of action. The issues have [been] already framed in this suit and points [are] cover[ed] in the issues. Reading of the plaint does not reflects any statement that may bar this plaint. The matter can only be decided after some evidence is brought on record. Accordingly this application is dismissed”.

 

6.         Perusal of the aforesaid order reflects that the earlier application Under Order 7 Rule 11 CPC, though filed on behalf of defendant Nos.1 and 2, and not by the present defendant No.7, however, was dismissed on similar grounds, for the reason that issues had already been framed in the instant Suit, with regard to the objection(s) being raised and such objection(s) can only be decided after recording of evidence in the instant matter. Similarly, the Hon’ble Supreme Court while dismissing C.P.L.A.No.138-K/2003 vide order dated 17.3.2003 preferred by the plaintiff against dismissal of H.C.A.No.314 of 2002 in the concluding Para, had observed that the petitioner (plaintiff) shall have adequate remedy to establish her case at the trial of the Suit, which will be decided on its own merits. This observation of the Hon’ble Supreme Court was with regard to the contention that application Under Section 12(2) CPC was not properly adjudicated, as the Sale Deed produced by the defendant No.7 in support of such application was a forged document, as the signature of defendant No.3 was materially different as compared to her signature on the National Identity Card. Since, in the instant matter, there are more than one Sale Deeds in respect of the said property and the ownership is being claimed by both of them, it would not be appropriate at this stage of the proceedings to consider the legal objections raised on behalf of the defendant No.7 and, summarily dismiss or reject the plaint, as the same requires recording of evidence. Since it is case of the plaintiff that they had no knowledge of any Sale Deed being registered in favour of defendant No.7 by defendant No.3, therefore, the question of limitation, which though appears to be an important question in the instant matter, as also observed by the learned Division Bench while passing Judgment in H.C.A No.314 of 2002, however, cannot be decided in the peculiar facts of instant case, merely on the basis of averments of the parties. Hence, it would not be appropriate to reject the plaint on this ground Under Order 7 Rule 11 CPC as the pivotal question which still remains to be decided is that as to whether, the said Sale Deed being claimed by defendant No.7 was in the knowledge of the plaintiff, and if yes, then as to when, as Article 91 of the Limitation Act provides for a period of 3 years from the date when the facts entitling the plaintiff to have the instrument (Sale Deed) cancelled or set aside became known to him and not from the date of instrument (Sale Deed) itself.

  

7.         In view of hereinabove discussion, I am of the view that at this stage of the proceedings, and in the given facts and circumstances of the instant case, plaint cannot be rejected in the instant matter as the applicant / defendant No.7 has no cause of action so as to attract the provisions of Order 7 Rule 11 CPC, as none of the clauses of the said Order, including clause (d) regarding limitation, is attracted in the instant matter, hence, instant application bearing CMA No. 429 of 2007 is hereby dismissed.

Dated: 08.07.2015

                                                                                                            JUDGE

 

Talib