REJECTION OF PLAINT IN LIGHT OF PRECEDENTS OF
SUPERIOR COURTS OF PAKISTAN
MUHAMMAD AJMAL[1] AND DR. DIL MUHAMMAD MALIK[2]
Abstract
This article
illustrates rejection of plaint under Order VII Rule 11 of Code of Civil
Procedure 1908 as applied and interpreted by the Superior Courts of Pakistan.
The terms ‘cause of action’, ‘accrual of cause of action’ and ‘remedy’ have
been elaborated and distinguished. The various general principles e.g.
preference of correctness of plaint, irrelevancy of consideration of defense,
stage of rejection of plaint, material for rejection of plaint etc along with
their exceptions determined by the Superior Courts of Pakistan qua subject
matter under consideration have been classified and consolidated. Furthermore,
the valuation of the suits for the purpose of court fee and jurisdiction, the
duty of the Court and ministerial staff qua valuation and discretion of the
Court to enlarge fixed time coupled with ancillary different aspects have also
been discussed. The most important and invoked ground for rejection of plaint- ‘barred
by law’ has been elaborated with illustrations focusing on connotation of law
and distinguishing between rejection of plaint and dismissal of suit.
Thereafter, the consequences of rejection of plaint and remedies there against
have also been brought under consideration. The extremity of this article
concludes the whole discussion.
1.
Introduction.
‘Justice
delayed is justice denied’ [3] and ‘justice
hurried is justice buried’[4] are the
principles of immense significance in administration of justice in
Key
Words: cause of action,
valuation of suit, rejection of plaint, barred by law, precedent.
02. Relevant Law:
·
Order VII, Rule 11 of Code of Civil
Procedure, 1908
·
Part B, Reception of Plaints and applications,
Volume-I, High Court Rules and Orders, LHC.
·
Part C, Examination of plaint, Volume-I, High
Court Rules and Orders, LHC.
·
Suit Valuation Act 1887, S.11
·
Court Fee Act 1870
03. Grounds for Rejection of Plaint
The grounds for
rejection of plaint has been specified in Order VII Rule 11 of Code of Civil
Procedure 1908 e.g. (i) where the suit does not disclose a cause of action,
(ii) relief claimed is undervalued and the plaintiff on being required by the
court to correct the valuation within a time to be fixed by the court, fails to
do so or the relief claimed is properly valued but the plaint is written on
insufficiently stamped paper and the plaintiff fails to supply requisite stamp
paper within the time to be fixed by the court or (iii) where the suit appears
from the statement in the plaint to be barred by any law. These grounds have
been elaborated by the Superior Courts of Pakistan and the principles have been
finally settled. The Order VII, Rule 11 of the Code of Civil Procedure 1908
reads as under:
“The
plaint shall be rejected in the following cases:-
a) Where it does
not disclose a cause of action:
b) Where the
relief claimed is under-valued, and the plaintiff, on being required by the
Court to correct the valuation within a time to be fixed by the Court, fails to
do so:
c) Where the
relief claimed is properly valued, but the plaint is written upon paper
insufficiently stamped, and the plaintiff, on being required by the Court to
supply the requisite stamp-paper within a time to be fixed by the Court, fails
to do so:
d) Where the
suit appears from the statement in the plaint to be barred by any law.”
The bare reading of the Rule 11 supra makes it certain that plaint
can be rejected only in specified circumstances. However, this Rule is not
exhaustive and there are many circumstances wherein the plaint may be rejected
or the suit may be dismissed. In particular, the ground ‘barred by law’ is of
wide connotation and covers express and implied bars. The word ‘shall’ clearly
indicate that rejection of plaint is mandatory and not discretionary when any
of the grounds is present.
04. General Principles
The most controversial and ambiguous aspect of the topic under
consideration is acknowledgment of various general principles and their
exceptions by Superior Courts of Pakistan in various precedents. The most
applied general rules and their exceptions are as follows.
§ The
first general principle is that every averment made in the plaint is to be
accepted as correct’.[6] The
August Supreme Court of Pakistan has recently clarified that ‘there can be
little doubt that primacy, not necessarily exclusivity, is to be given to the
contents of plaint. The contents of written statement are not be examined and
put in juxtaposition with the plaint in order to determine whether contents of
plaint are correct or incorrect. In carrying out analysis of the averments
contained in plaint, the court is not denuded to its normal judicial
power of scrutiny.[7] Thus,
correctness of averments of plaint is general rule subject to exception of
judicial scrutiny.
§ The
second general principle is that ‘the defense taken in the written statement
cannot be looked into while considering rejection of the plaint’ [8]
except when legal plea e.g. res-judicata or time barred etc is advanced.[9]
However, in a case, the respondent
filed written statement, did not advance pleas of valuation and maintainability
of the suit. The trial Court and appellate court rejected plaint. The High
Court ruled that the plea raised by the respondent was in nature of a defense
in the suit and cannot be looked into while considering the application under
Order VII Rule 11 CPC 1908. These pleas are open to be raised by the respondent
at the time of trial of the suit.[10] Thus, generally, the defense cannot be looked into
but with exception of legal plea.
§ The third general principle is that ‘the fact that the plaintiffs may
ultimately fail in establishing the allegations in the plaint cannot be a
ground for rejecting a plaint under Order VII Rule 11 of CPC 1908.[11] There is no controversy in this regard and there
is no exception to this rule.
§ The fourth one is
that ‘the court should examine plaint for purpose of rejection of plaint at
the time of presentation’’.[12] The August
Supreme Court of Pakistan concluded that the rejection of plaint is contemplated at a stage when the Court has
not recorded any evidence in the suit.[13] In another precedent, it was decided that where
evidence had already been recorded and the parties were seriously at issue, the
Court should instead of rejecting the plaint, decide the dispute on merits by
referring to evidence of the parties.[14] The
plaint cannot be rejected without deciding the issues already framed. In such
case, the proper course for the Court would be to decide all issues together.[15]
However, the plaint can be rejected while dismissing application for temporary
injunction.[16] In suit for specific performance, the Court
concluded that the question- whether at the time of entering into agreement the
defendant had title to the property or not is a question of fact and the same
cannot be decided without allowing the parties to lead evidence.[17]Thus,
generally, rejection of plaint is preferred at the inception with exception of
before framing of issues.
§ The fifth general principle is that only contents of plaint should be looked
into for rejection of plaint.[18] However, exception of this principle is- 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.[19] The documents referred in plaint can be looked
into.[20] Even, documents of defendant qua res-judicata can
also be looked into for rejection of plaint.[21]
§ The sixth general
principle is relevant with the suit which is not regulated in toto by Code of
Civil Procedure 1908. However, the provisions of Code of Civil Procedure 1908
are applied mutatis mutandis. The Peshawar High Court declared where
provisions of Code of Civil Procedure 1908 mutatis mutandis apply, the plaint
can be rejected as in case of proceedings under Defamation Ordinance
2002.[22]
§ The seventh
general principle is that plaint can be rejected suo moto
without application of defendant.[23] There is no
exception or dispute qua this principle.
§ The
eighth general principle is- when plaint is vague, no rejection but
amendment of plaint is just.[24]
Similarly, when factual investigation is required, there should be no rejection
of plaint.[25]
However, the exception of this general principle is- when the rights of rival
party are infringed, the plaint should be rejected. For example, when amendment
of plaint changes character and complexion of suit e.g. suit for declaration
becomes suit for specific performance and vice-versa.[26]
05. Cause of action
The first ground for rejection of plaint is ‘non-disclosure of
cause of action’. The word ‘action’ means proceedings in which a legal demand
of a right is made.[27] The
phrase ‘cause of action’ has been defined by Privy Council as- ‘every fact
which if traversed, it should be necessary for the plaintiff to prove in order
to support his right to judgment, and which if not proved gives the defendant a
right to judgment.[28]
Supreme Court of Pakistan defined ‘cause of action’ as- ‘the ground on the
basis of which the plaintiff asks for favorable judgment and not related to
defense or the relief prayed for’.[29] The
Lahore High Court defined ‘cause of action’ as ‘the bundle or totality of
essential facts which it is necessary for the plaintiff to prove before he can
succeed. There may be different causes of action from one transaction’.[30]
There is an important
question- how to answer whether the cause of action is same or not? The jurists
and the precedents answer this question. There are many tests which answer this
aspect. First, if the evidence to support the two claims is different, then the
causes of action are also different.[31]
Similarly, the causes of actions in two suits may be considered the same if
they are identical in substance.[32] For
example, the petitioner issued
cheques in favour of the respondent. The cheques were dishonored and suit was
filed. Subsequently, some agreements were executed in connection with cheques.
The defendant raised objection of cause of action. The High Court declared that
from the contents of the suit, a cause of action was clearly disclosed in
favour of the respondent. The effect of subsequent events and disclosure of
certain facts including execution of agreements, the circumstances and the
purpose for which said agreements were executed, will be the subject matter of
examination by the learned trial court in light of the evidence produced before
it. The learned trial court after recording evidence of both parties would also
be competent to determine the effect of the said agreements on the suit filed
by the respondents.[33] If cause of action
arises out of
There is distinction between
disclosure of cause of action and accrual of cause of action. There may be
disclosure of cause of action without accrual of the same. For example, when
certain time is fixed for performance of agreement, the institution of suit for
specific performance is declared premature[35] and suit is
dismissed and not plaint is rejected. The reason is that there is a disclosure
of cause of action but not accrual of cause of cause of action. Similarly,
contingent contracts also disclose but not accrue cause of action before
happening of contingency. [36]
06. Under-Valuation of Relief Claimed
The second ground
for rejection of plaint is under valuation of relief claimed. This ground has nexus with valuation of suit
for purpose of jurisdiction. This valuation is done under Suit valuation Act
1887. The initial duty of determination of proper valuation of relief is upon
the plaintiff.[37] If valuation of
relief determined by the plaintiff is incorrect, it the duty of the court to
determine proper valuation and also allow reasonable time to amend the plaint
accordingly.[38] Furthermore, the
person presenting plaint may be questioned by the Court in this regard and his
answer may be recorded on plaint unless consent is given to amend the plaint
then and there.[39] The court should
determine the proper valuation of the suit at the early stage.[40] When, the plaintiff fails in correcting the
valuation of the relief, only then, rejection of plaint is permissible.[41]
Only
the plaint is to be looked into for determination of valuation of claim.[42] If valuation
determined by the court exceeds the jurisdiction of the court, the plaint
should be returned.[43] The cardinal
aspect is that valuation is to be determined of not the whole relief but the
claimed relief by the plaintiff. If some part of relief is relinquished, then
omitted relief is exempted from valuation. For example, A files suit for
recovery of loan amount of Rs. 100000/- and interest Rs.25000/- but claims only principal loan amount Rs.
100000/-. In this situation, valuation is to be based upon principal loan
amount and not interest. The provisions
of Order VII Rule 11 are mandatory not discretionary.[44]
The third ground
for rejection of plaint is insufficiency of court fee stamps. The clause © of
Rule 11 supra presupposes correct valuation of relief claimed and is not
attracted when court fee is not payable.[45] The reader of concerned Court has the initial
duty to check court fee on the plaint and is responsible for loss. In case of
ambiguity, the reader should refer the matter to the court. [46] However, the
court has the ultimate duty to determine proper court fee payable by the
plaintiff and grant reasonable time to make good the deficiency of court fee.
The court has discretionary power to extend time granted for making payment of
court fee unless there is contumacy; gross negligence and malafide under
sections 148 and 149 Code of Civil Procedure 1908.[47] The time may
also be extended under section 151 of Code of Civil Procedure 1908.[48] When, the
deficiency is removed, the plaint is deemed instituted from date of
presentation.[49] The issue may
also be framed for determination of proper valuation of court fee.[50]
08. Barred by Law
The fourth ground
for rejection of plaint is ‘barred by law’ The ‘law’ means written law or
statute law and is used in generic sense.[51] Law means – a
formal pronouncement of the will of a competent law giver.[52] Law includes-
constitution, statutes, judicial principles, rules, by-laws etc.[53] The
illustrations when the suit is barred by law are- (i) Time barred suit is
dismissed under section 3 of Limitation Act 1908 and plaint is not rejected
under Order VII Rule 11 of C.P.C.[54] The law of
limitation prevalent at the time of institution of suit applies and not when
cause of action arose.[55] (ii) The relief
relinquished in respect of one cause of action is barred under Order II Rule 2
of C.P.C 1908. (iii) The suit hit by multifariousness is barred under Section
11, Explanation IV of C.P.C 1908. (iv) The suit regarding execution, discharge
and satisfaction of decree is barred under section 47 of CPC 1908. (v) The suit
hit by principle of res-judicata is barred under section 11 of C.P.C 1908. (vi)
The suit regarding public nuisance without consent of advocate general is
barred under section 92 of C.P.C 1908. (vii) The suit for setting aside decree
is barred under section 12(2) of C.P.C 1908. (viii) The suit hit by doctrine of
estopple is barred under article 114 of Qanun-e-Shadat Order 1984. (ix) The
suit for pre-emption by person who is not pre-emptor under section 6 of Punjab
Pre-emption Act 1991. (x) When suit withdrawn without permission, fresh suit
barred on same cause of action under Order XXIII Rule 3. (xi) The suit for permanent
injunction restraining public functionaries from official functions is barred
under section 56 (d) of Specific Relief Act 1877. (xii) Suit for declaration on
the basis of agreement to sell is barred under section 42 of Specific Relief
Act 1877. (xiii) The suits for specific performance of the nature which cannot
be specifically enforced under section 21 of Specific Relief Act 1877. (xiv)
Inter pleader suit which does not fulfill conditions under section 88 and Order
XXXV of C.P.C 1908.
09. Rejection of Plaint and Dismissal of Suit
The Lahore High
Court discussed distinction between rejection of plaint and dismissal of suit
in the words that "the rejection of plaint" meant that if ingredients
in Order VII, Rule.11 C.P.C. 1908 were available in plaint, the Court had
jurisdiction and powers to reject the plaint. Dismissal of suit connoted that
it was a final determination of controversy between parties meaning thereby the
Trial Court could dismiss the suit only after holding inquiry and recording of
evidence.[56] Rejection of
plaint provided or opened door for plaintiff for filing fresh suit but in case
of dismissal of suit, no fresh suit could be filed and only statutory remedy
was available against dismissal order. The defendants filed application under Section
151 of C.P.C. by placing on record all facts finally settled between parties
and plaintiffs admitted all such facts. Hence, no question for further
determination of any issue had arisen and the Court was within its rights to
reject the plaint under O. VII, R.11, .C.P.C. Dismissal of suit for invoking
doctrine of res judicata was not correct interpretation of law.[57] Rejection of
plaint is proper order not dismissal of suit.[58]
10. Rejection of Plaint and Return of Plaint
There is delicate simple difference
between rejection of plaint and return of plaint. Return of plaint is concerned
with competency of the Court whereas rejection of plaint is concerned with
competency of the suit. When, the court comes to conclusion at any stage that
it has no jurisdiction, the plaint is to be returned under Order VII Rule 10
and not rejected under Order VII Rule 11 of Code of Civil Procedure 1908. The
orders ‘corum non judice’ are nullity in eyes of law.[59] The Court having
jurisdiction can pass an order under Order VII Rule 11 of C.P.C 1908.
11. Consequences
The consequences
of rejection of plaint are both ultimate and temporary. The ‘rejection of
plaint is not res-judicata against a plaintiff and defendant’[60] except when
rejection of plaint amounts to final adjudication e.g. res-judicata or time
barred suit. [61] The rejection of
plaint is decree as defined in section 2(2) and is appealable under Order 41
Rule 23 of Code of Civil Procedure 1908. However, when plaint is not rejected,
the order of rejection can be questioned in revision. The fresh suit may be
instituted if not barred by law.[62]
12. Conclusions and Recommendations
The Order VII
Rule 11 of Code of Civil Procedure 1908 is not exhaustive in nature as there
are many other grounds which may justify rejection of plaint. The Order VII
Rule 11 C.P.C, 1908 is mandatory not directory in nature having penal
consequences. The general rule that- only averments of plaint are relevant for
rejection of plaint’ has two exceptions- (i) the documents admitted by
plaintiff annexed with plaint can be looked into and (ii) in exceptional
circumstances e.g. res-judicata or time barred suit , documents of defendant
too. Similarly, the averments of plaint are presumed correct but subject to
judicial scrutiny by the court. Generally, the plaint can be rejected at any
stage but preferably at initial stage before issuance of summons and seldom at
later stage. When issues have been framed, the suit should be decided on
merits. The disclosure of cause of action and accrual of cause of action are distinct
aspects. The rejection of plaint is relevant with former not later aspect. The
plaint is not to be rejected when amendment of plaint is permissible under the
law. The reason able time must be granted to determine proper valuation of
relief or make good deficiency of court fee and grant of time by the court is
mandatory. The further enlargement of time fixed by court is permitted except
when there is contumacy, malafide and gross negligence of plaintiff. The
rejection of plaint and dismissal of suit or two distinct aspects. Rejection of
plaint not dismissal of suit is proper order on grounds detailed in Order VII
Rule 11 C.P.C 1908. The law of limitation prevalent at the time of institution
of suit applies and not when cause of action arose. The plaint can be rejected suo
moto without application by defendants. The order of rejection of plaint is
appealable whereas order of refusal to reject plaint is revisable.
----------------------
[1]. The
writer is an HEC Scholar for PhD in Law enrolled in University
of South Asia,
[2]. The
worthy Dr. Dil Muhammad Malik is co-author of this article and Supervisor and
Dean Faculty of Law,
[3]. Nanik
Ram V. Ghullam Akbar, 2016 MLD 52 (Kar).
[4]. Ibid.
[5]. Sher
Khan v. Gulzar Khan, 2016 CLC 663 (Pesh)
[6]. Mst. Shabeona Perveen v. M/s. Defence Officers Housing
Society Authority,
[7]. Haji
Abdul Karim v. Messrs Florida Builders Ltd., PLD 2012 SC 247; AL-Mezan
Investment Management Company v. WAPDA First Sukkok Company Ltd., PLD 2017 SC 1
[8]. Mst. Shabeona Perveen v. M/s. Defence Officers Housing
Society Authority,
[9]. Muhammad
Akhtar v. Abdul Hadi, 1981 SCMR 58
[10]. Mst. Shabeona Perveen v. M/s. Defence Officers Housing
Society Authority,
[11]. Mst. Shabeona Perveen v. M/s. Defence Officers Housing
Society Authority,
[12]. Rule
1, Chapter-1-C, Volume 1, Rules and Orders,
[13]. Jewan and 7 others Vs. Federation of Pakistan through
Secretary Revenue,
[14]. Kamal-ud-Din v. Province of Punjab and others, 1977 MLD 21;
Mst. Karim Bibi and others v. Zubair and others,1993 SCMR 2039; Principal,
Government Higher Secondary School, Oghi v. Mir Afzal and 2 others,1995 CLC 525
[15]. Faiz Ahmad Vs. Ghulam Ali, 2000 AC 739
[16]. Salah-ud-Din
v. Zaheer-ud-din, PLD 1988 SC 221; Asghar Ali V. P.K Shahani, 1992 CLC 2282
[17]. Sharjeel Younus v. Salahuddin Mirza, 2008 YLR 1523
[18].
[19]. Jewan and 7 others v. Federation of Pakistan through
Secretary Revenue,
[20]. Shireen
Nawaz v.
[21]. Muhammad
Akhtar v. Abdul Hadi, 1981 SCMR 58
[22]. Abdur
Rashid v. S. Fida-ur-Rehman Shah, PLD 2017 Pesh 19. Defamation Ordinance, 2002,
S. 10.
[23]. Abdur
Rashid v. S. Fida-ur-Rehman Shah, PLD 2017 Pesh 19
[24].
[25]. Manzoor
Ahmed v. Abdul Khaliq, 1990 SCMR 1677; See also: Fatima Moeen v. Additional
District Judge Sheikhupura, 1992 SCMR 1199
[26]. Mushtaq
Ahmed v. Muhammad Aslam, 2016 CLCN 100 (Pesh)
[27]. Messrs
Rah-e-Manzil Transport and others v. Muhammad Ameen, PLD 1963 Kar 182
[28]. Read
v. Brown, (1889) 22 Q B D 128; Read also: Muhammad Khalid Khan v. Mahbub Ali
Mian etc, PLD 1948 PC 131;Abdul Hakim etc v. Saadullah Khan etc., PLD 1970 SC 63; Mitha Khan v. Muhammad
Younis, 1991 SCMR 2030
[29]. PLD
1970 SC 363
[30]. Muhammad
Yateem v. Ghullam Nabi, PLD 1975 Lah 563
[31]. Brunsden
v. Humphery, (1884) 14 QBD 141; See also: Muhammad Yateem v. Ghullam Nabi etc.,
PLD 1975 Lah 563
[32]. Ibid.
[33]. Hamid
Ghani v. Basit Siddiqui, 2011 LHC 2383
[34]. Global
Containers Lines Ltd. V. American President Lines Ltd., 1998 CLC 360
[35]. Limitation
Act 1908, Section 3; Schedule 1, Article 113.
[36]. Contract
Act 1872, Sections 31 to 35.
[37]. Rules
and Orders of
[38]. Zafar
Alam v. Member revenue Board, 1991 SCMR 1153
[39]. Rules
and Orders of
[40]. Muhammad
Nasrullah v. Muhammad Ayaz, PLD 1975 Lah 886
[41]. Parveen
v. Jamsheda Begum, PLD 1983 SC 227
[42]. Allah
Bakhsh v. Abdul Rehman, 1995 SCMR 459
[43]. PLD
1971 Kar 682
[44]. PLD
1994 SC AJK 32
[45]. Sher
Bahadur Khan v. Anwar Khan, 1996 CLC 1624
[46]. Rule
5, Chapter-1-B, Volume 1, Rules and Orders,
[47]. Code
of Civil Procedure, 1908, s.149; Siddiqui Khan v. Abdul Shakoor, PLD 1984 SC
289; 1994 SCMR 262
[48]. Faqir
Muhammad v. Noor Muhammad, 1970 SCMR 188
[49]. PLD
1970 SC 42
[50]. Muhammad
Yaqoob v. Additional District Judge Kasur, 1985 CLC 774
[51]. Shahzad
Hussain v. Hajiran Bibi, PLD 1990 Lah 222
[52]. Federation
v. United Sugar Mills, PLD 1977 SC 397
[53]. Al-Jihad
case, PLD 1997 SC 84
[54]. Limitation
Act, 1908, s.3; PLD 1977 Lah 1243
[55]. PLJ
1983 SC 143
[56]. Al-Mezan
Investment Management Company Ltd. V. Wapda First Sukkok Company Ltd., PLD 2017
SC 1
[57]. Muhammad
Anwar Etc v.
[58]. Rule
6, Chapter-1-C, Volume 1, Rules and Orders,
[59]. Administrator Thal
Development v. Ali Muhammad, 2012 SCMR 730.
[60]. Province
of the
[61]. Shahzad
Hussain v. Hajiran Bibi, PLD 1990 Lah 222
[62]. Mian
Khan v. Aurangzeb, 1989 SCMR 58