2012 C L C 773

[Peshawar]

Before Yahya Afridi and Nisar Hussain Khan, JJ

SHAHZADA----Petitioner

versus

KHAIRULLAH and others----Respondents

Writ Petition No.1162 of 2008, decided on 11th October, 2011.

(a) Malicious prosecution---

----Suit for damages on basis of malicious prosecution arising out of civil litigation---Conditions
essential to constitute a cause of action for such suit stated.

Condition precedents for a person to have a cause for damages on the basis of malicious
prosecution arising out of civil litigation are that (i) the plaintiff was prosecuted by the
defendant; (ii) the prosecution ended in plaintiffs favour; (iii) the defendant acted without
reasonable and probable cause; (iv) the defendant was actuated by malice; (v) the proceedings
had interfered with plaintiffs liberty and had also affected his/her reputation; and finally (vi)
the plaintiff had suffered damage.

Muhammad Amin v. Jogendia Kumar Bannerjee AIR 1947 Priyy Council 108; Haji Muhammad
Shafi v. Mst. Hamidan Bibi 1990 MLD 597 and Ali Asghar v. Fazal Akbar 1988 CLC 147 ref.

Muhammad Akram v. Mst. Farman Bi (PLD 1990 SC 28 fol.

(b) Civil Procedure Code (V of 1908)---

----O. VII, R. 11---Rejection of plaint---Powers of court---Scope---Court could reject plaint even

without an application by defendant---Principles.
The plain reading of the provision contained in Order VII, Rule 11, C.P.C. clearly provides that
there is no express requirement for the defendant to file an application to seek the rejection of the
plaint. The court has the authority under the said provision to reject the plaint even without any
application made by an interested party.

(c) Civil Procedure Code (V of 1908)---

----O. VII, R. 11---Rejection of plaint---Essential considerations--Court would consider only

plaint and not plea raised in written statement, if same was beyond pale of what was
contained in plaint.

Jewan v. Federation of Pakistan 1994 SCMR 826; Muhammad Akhtar v. Abdul Hadi 1981
SCMR 878; Nazir Ahmad v. Ghulam Mehdi 1988 SCMR 824 and Pakistan Agricultural Storage
and Services Corporation Ltd. v. Mian Abdul Latif PLD 2008 SC 371 rel.

Muhammad Aman Khan for Petitioner.

Nemo for Respondents.

Date of hearing: 11th October, 2011.

JUDGMENT

YAHYA AFRIDI, J.--- Shehzada son of Maroon Said resident of Dir Payan has filed the instant
constitutional petition challenging the decision of the Additional District Judge/Izafi Zilla Qazi,
Timergara and Civil Judge/Maga Qazi Sumar Bagh dated 16-7-2008 and 3-12-2007,
respectively.

2. The brief and essential facts leading to the present petition are that the present petitioner on
24-11-1981 instituted a suit for possession exercising his rights of pre-emption before the
Tribunal constituted under the PATA Regulation. Khairullah, the present respondent No.1,
resisted the said suit on the ground that the sale transaction challenged in the pre-emption suit
had not taken place. The trial Court decreed the suit of the present petitioner on payment of the
pre-emption money vide order dated 13-1-1992. Aggrieved thereof, Khairullah impugned the
said decision in appeal before the Additional Commissioner II, Malakand Division, which was
dismissed and so did the revision filed thereon before the Additional Secretary (Judicial) N.-
W.F.P. Home and Tribal Affairs Department. The present respondent finally impugned the said
decisions before this Court in Writ Petition No.130 of 1997, which was accepted and the
impugned orders were declared as without lawful authority and no legal effect. This prompted
the present petitioner to challenge the said decision before the august Supreme Court of Pakistan,
which was dismissed as Civil Appeal No.384 of 2001 vide judgment dated 5-12-2006.
It would be pertinent to note that throughout this long litigation of two decades none of the legal
forum awarded any 'costs' or 'compensatory costs' in favour of the present respondent.

3. This being the background of the litigation between a e parties, Khairullah, the present
respondent, after obtaining a favourable decision from the apex Court, instituted a suit for
damages on the basis of malicious prosecution by the present petitioner. The present petitioner
sought the rejection of the plaint, by filing an application under Order VII, Rule 1I of the Code
of Civil Procedure, 1908 ("C.P.C."). The said application was dismissed and the revision against
the said decision also met the same fate. The Courts below held that the matter required
recording of evidence to determine, whether the suit was 'malicious' or otherwise. Hence the
present petition.

4. The valuable arguments of the learned counsel for the petitioner and the written submissions
of the respondent considered and the relevant record thoroughly perused.

5. Prior to the judgment rendered by the apex Court in Muhammad Akram v. Mst. Farman Bi
(PLD 1990 SC 28), the judicial consensus of the superior Courts of our country was that
no suit for malicious prosecution arising out of civil litigation could be maintainable. In this
regard, the Courts, followed the decision of the Privy Council in case titled Muhammad Amin v.
Jogndia Kumar Bannerjee (AIR 1947 Priyy Council 108), wherein, it was held that:---

"A civil action which is falls will be dismissed at the hearing. The defendant's reputation will be
clear of any imputations made against him and he will be indemnified against his expenses by
the award of cost against his opponent. The law does not award damages for mental anxiety or
for extra costs incurred beyond those imposed on the unsuccessful party."

In this regard cases in point are Haji Muhammad Shafi v. Mst.Hamidan Bibi (1990 MLD 597)
and Ali Asghar v. Fazal Akbar (1988 CLC 147).

Then came the landmark judgment of the apex Court in Muhammad Akram's case (supra),
wherein it was finally put to rest that a successful party in civil proceedings could not claim
damages for malicious prosecution. The apex Court held that:--

"We having carefully perused the reasoning of the learned Judge in the High Court, agree with
him that the distinction in our country, between criminal 'prosecution' and the 'Civil prosecution'
for purpose of denying the right to institute the latter for damages in torts, is not at all well-
founded. The Privy Council judgment showing itself a conflict of trend for some time in the
judgments in a country where "the action for damages for malicious prosecution is part of the
common law of England" is no more an authority for us under our own constitutional and legal
set up. Even otherwise we do not agree with the learned counsel that the denial of right to sue for
damages in such-like cases was universally accepted as good law. The contrary view, with
respect, is more logical and is much convincing. The learned Judge has correctly analyzed the
case-law in this behalf."
However, the august Court defined certain condition precedents for a person to have a 'cause' for
damages on the basis of malicious prosecution arising out of civil litigation. The conditions so
stipulated are as under;---

(i) That the plaintiff was prosecuted by the defendants;

(ii) That the prosecution ended in plaintiff's favour;

(iii) That the defendant acted without reasonable and probable cause;

(iv) That the defendant was actuated by malice;

(v) That the proceedings had interfered with plaintiff's liberty and had also affected her
reputation; and finally;

(vi) That the plaintiff had suffered damage". (emphasis provided)

6. Having discussed the scope of claims of damages based on malicious prosecution, this Court
is to determine whether the two Courts below were correct in dismissing the application of the
present petitioner for rejection of the plaint of the present respondent under Order VII, Rule 11
of C.P.C. The said provision reads as:---

"Rejection of the plaint.--- 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 undervalued and the plaintiff on being required by the court to
correct the valuation within time to be fixed by the court fails to do so;

(c) Where the relief claimed is properly valued but the same is written upon paper insufficiently
stamped and the plaintiff on being required by the court to supply by the requisite stamp paper
within time to be fixed by the court, fails to do so;

(d) Where the suit appears from the statement of the plaint to be barred by any law. (emphasis
provided).
The plain reading of the provision contained, hereinabove, clearly provides that there is no
express requirement for the defendant to file an application to seek the rejection of the plaint.
The Court has the authority under the said provision to reject the plaint, even without any
application made by an interested party.

Now moving on to what the trial Court can consider, while deciding the issue of rejection of the
plaint, the august Supreme Court has dilated upon this matter in the judgment rendered in the
case titled Jewan v. Federation of Pakistan (1994 SCMR 826). The august Supreme Court very
clearly laid down that:---

".... the reason for this different approach while rejecting a plaint under Order VII, Rule 11,
C.P.C. is quite obvious. In the former proceedings (under Order XXXIX, Rules 1 and 2, C.P.C.)
even if the court reaches the conclusion that the plaintiff has failed to make out a prima .facie
case, it can only refuse to grant temporary injunction and reject the application under Order
XXXIX, Rules 1 and 2, C.P.C. but this rejection cannot result in the dismissal of the suit which
proceeds to trial notwithstanding a finding by the court that the plaintiff has failed to make out a
prima facie case for grant of temporary injunction. On the contrary if the court reaches the
conclusion that the plaint failed to disclose any cause of action or suit appears to be barred by
law the proceedings came to an end immediately and the plaintiff is non-suited before he is
allowed an opportunity to lead evidence and substantiate his allegation made in the plaint. We
are, therefore, of the view that the rejection of the plaint at a preliminary stage when the plaintiff
has not led any evidence in support of his case is possible only if the court reaches the conclusion
on consideration of the statements contained in the plaint and other material available on record
before the court which plaintiff admits as correct." (Emphasis supplied).

In the said judgment the august Supreme Court commenting on Muhammad Akhtar v. Abdul
Hadi (1981 SCMR 878) and Nazir Ahmad v. Ghulam Mehdi (1988 SCMR 824) contended that:-
--

"We have carefully examined the above cited cases, which were the basis of the impugned
decision of the High Court and .... We are, therefore, of the view that in the above referred cases
though the observation was made by the court that Order VII, Rule 11, C.P.C. is not exhaustive
of all situation but it did not lay down the rule that the court while rejecting the plaint
under Order VII, Rule 11 C.P.C. could take into consideration the plea of the defendants though
disputed and denied by the plaintiff"

Keeping in view the 'ratio decedendi' of the aforementioned judgments of the august Supreme
Court, it would be safe to state that the Courts entertaining the application for rejection 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. The august Supreme Court in a more recent case titled Pakistan
Agricultural Storage and Services Corporation Ltd. v. Mian Abdul Latif (PLD 2008 SC 371),
while discussing the import of the said provision of C.P.C. held that the intent of the said
provision of law was to ensure that the parties do not have to go through the rigors of frivolous
litigation and that the same may at the very inception of the proceedings be terminated, on the
basis of the averment made in the plaint and the documents filed therewith.

7. In view of the above legal discourse, this Court finds that the plaint of Khairullah, the present
respondent, did not disclose the most essential condition precedent enumerated by the apex Court
in Muhammad Akram's case, (supra) to constitute a 'cause of action' for seeking damages on the
basis of malicious prosecution. The said condition being that;--

"that the proceedings had interfered with plaintiff's liberty and had also affected her reputation".

Thus the claim of Khairullah, as stated in the plaint came within the mischief of Order VII, Rule
11(i) of C.P.C. as no 'cause of action' accrued to him to claim damages due to the alleged
malicious prosecution by the present petitioner. Moreover, the said claim of Khairullah did not
fulfil all the conditions stipulated by the apex Court, and thus the same to be against the law and
also fall within the purview of Order VII, Rule 11(iv) of C.P.C.

8. For the reasons stated hereinabove, this Court finds that the two Courts below did not assume
their jurisdiction in accordance with law and the impugned orders of not rejecting the plaint
under Order VII, Rule 11 of C.P.C. were illegal and without lawful authority.

9. Accordingly, this Court accepts the present petition by setting aside the impugned decision of
the two Courts below and declares that the plaint of Khairullah be rejected.

No orders as to costs

S.A.K./340/P Petition accepted.