1996 PLP 1541 (MLD)

Muhammad Muzafarul Haque for Applicant. Nemo for Respondent. Date of hearing: 12th March 1995 Briefly the facts relevant for the purpose of this Revision Application are that the present applicant had instituted Suit No. 1621 of 1988 against the present respondent seeking relief of permanent injunction to the effect that the respondent will not eject the applicant unlawfully or take possession of Plot No.10/227-B, Liaquatabad, Karachi, hereinafter referred to as the suit plot nor he will compel the applicant to sell her plot against her wishes. The case of the applicant as set out in the plaint is that the suit plot was allotted to one Ibrahim Khan in the year 1988 by the K.M.C. and that this Ibrahim Khan subsequently through an Iqrarnama of Dast Bardari transferred the same to the applicant for valuable consideration and thereafter - the applicant is in actual physical possession of the suit plot. The case of the applicant further in the plaint is that the respondent is the. owner/lessee of adjoining Plot 10/227-A admeasuring 80 sq. yds. and wants to usurp the suit plot and had been pressurizing the .present applicant to transfer the same. The applicant apprehending the illegal dispossession from the plot filed the present suit. The respondent was served but he did not file any written statement and moved an application under Order 7, Rule 11, C.P.C. praying for rejection of the plaint on the ground that the plaint did not disclose any cause of action and the suit is barred under the provisions of Order 21, Rule 103, C.P.C.,(not with present application as the matter had gone up to the level of Honourable Supreme Court and the order of ejectment passed against one Muhammad Umer and Muhammad Hussain Tahir the Rent Case No.4082 of 1978 was maintained. The trial Court after hearing the arguments of the Advocates of the parties and taking into consideration the record of the K.M.C. and the evidence of one witness Syed Sadiq Ali of K.M.C Office, Liaquatabad, Karachi rejected the plaint on the ground that the suit was barred under the provisions of Order A 21, Rule 103, C.P.C. and the plaintiff has no cause of action. Being aggrieved The applicant has preferred an appeal before the District Judge being C.A. No. 88 of 1991 which was dismissed by Third Additional District Judge, Karachi Central and the order of the Trial Court was maintained. Being aggrieved the present applicant has preferred this Revision Application. I have heard Mr. Muhammad Muzafarul Haque, Advocate for the applicant. The learned counsel has pointed out that while dealing with the case under the provisions of Order ", Rule 11, C.P.C. all the Court is required lo do is to examine the plaint and accompaniments in order to arrive of the conclusion if the plaint does not disclose any cause of action or the suit is barred by any law. The learned counsel has further pointed out that the two impugned orders very clearly show that the present applicant had acquired a right in the property in dispute through the said Iqrarnama in exchange for valuable consideration and that in view of provisions of section 54 of the Specific Relief Act she could not be dispossessed except in due course of law. The learned counsel has further submitted that as regards the bar contained in Order 21, Rule 103, C.p.C., it may be observed that the litigation, right up to the Honourable Supreme Court, was between the present respondent and his tenant Muhammad Umer and the subsequent intervener Muhammad Hussain Tahir with regard to adjacent plot and would not be binding on the present applicant/plaintiff. He has further pointed out that as is disclosed froth the order of the Trial. Court, the said Court had taken into consideration not only the defence plea but also looked into evidence recorded in another proceedings which would tantamount to taking evidence in the present suit which. is not the condition warranted while exercising jurisdiction under Order 7, Rule 11, C.P.C. I find force in the contention of the learned counsel. Accordingly, I accept this revision application, set aside the order and judgment passed by the two Courts below and remand the suit to the Trial Court with the directions that if any such plea is raised in defence, the Trial Court may deal with the same by framing a preliminary issue if so desired. There will be no order as to costs. H.B.T./G-8/K Revision accepted.