ISLAMABAD : The Supreme Court revived a civil suit over a disputed Rs6.5 crore plot in Islamabad when a three-judge bench led by Justice Shahid Waheed overturned concurrent orders from the trial court and the Islamabad High Court that had thrown out the case at the earliest stage.
The bench comprising Justice Jamal Khan Mandokhail, Justice Shahid Waheed and Justice Muhammad Shafi Siddiqui heard petitioner Nisar Ahmed Afzal’s plea against respondent Irfan Qadir and delivered a split 2-1 verdict that sends the long-stalled dispute back to trial. The majority ruled that courts cannot dismiss a plaint under Order VII, Rule 11(a) of the Code of Civil Procedure simply because a plaintiff’s allegations look difficult to prove; they can dismiss it only when the pleaded facts, taken at face value, fail to disclose any legal claim at all.
According to the plaint, the Capital Development Authority originally allotted the property to Mst. Maria Maud Sabri, who later sold it to Bashir Hussain, who in turn sold it to Abid Rehman Chaudhry. Chaudhry then sold the house to Afzal, and the CDA recorded the transfer in Afzal’s name in December 2004. Afzal’s son rented the house out in 2007. In March 2008, citing cordial ties and trust, Afzal transferred the property to Irfan Qadir for an agreed Rs6.5 crore, expecting payment shortly afterward. Qadir never paid, Afzal alleged, and instead used delay tactics whenever Afzal pressed him. Afzal eventually sued for a declaration that he remained the true owner and that the 2008 transfer was illegal, fraudulent and void.
The trial court rejected the plaint in February 2014, holding that Afzal could not admit executing the sale agreement, which recorded receipt of the full consideration while simultaneously denying he received the money. Judges called this approbating and reprobating in the same breath. The Islamabad High Court upheld that reasoning in October 2018, adding that a litigant seeking equitable relief must approach the court with clean hands and maintain consistent pleadings throughout.
Justice Waheed, author judge of the verdict writing for the majority, held that both lower courts blurred the distinction between “disclosure” of a cause of action and “proof” of one. He explained that at the plaint-rejection stage, a judge must accept every averment as true and ask only whether those facts, if established, would entitle the plaintiff to relief – not whether the plaintiff will ultimately succeed in proving them. Because Afzal specifically alleged fraud and deceit in the transfer, the majority found his plaint met that threshold and deserved a trial on merits.
The dissent
Justice Muhammad Shafi Siddiqui disagreed and recorded a separate opinion refusing leave to appeal. He pointed out that Afzal’s own pleadings admitted the transfer went through voluntarily, on a promise of future payment, without alleging coercion or fraud in the transfer process itself.
Citing Sections 54 and 55 of the Transfer of Property Act, 1882, and Indian Supreme Court precedents in Vidhyadhar and Dahiben, he argued that unpaid consideration does not invalidate a completed sale – it only creates a statutory charge allowing the seller to recover the outstanding amount. Since Afzal sought cancellation instead of recovery, Justice Siddiqui found no cause of action for the relief actually claimed.
With the majority prevailing, the suit remanded to the trial court in Islamabad, which must now record evidence and decide the case independently of any observations the higher courts made on its merits.
