1984 PLP 732 (MLD)

Akhtar Mahmood for Respondents. Dates of hearing: 6th and 7th August, 1984. This is a revision application under section 115 of C.P.C. against order of Civil Judge who had refused to reject plaint of the respondent filed for declaration and injunction on the ground that fraud having been alleged in the plaint, the same required adjudication on merits. Respondent had alleged in the plaint that order of transfer of shop No. G-1-A in favour of petitioner made by settlement authorities in 1962 was the result of fraud and misrepresentation.

2. After I had heard the two learned counsels of opposite parties for some time, Mr. Khalid. M. Ishaque emphasised that the Court below had not considered the case from the point of view of prayer under section 151, C.P.C. and, therefore, to that extent there was a failure to exercise the jurisdiction. Mr. Akhtar Mahmood conceded that this is correct position but submitted that probably the matter had not been argued as such. He further stated that section 151, C.P.C. does apply to rejection of plaint which is specifically convered by the provisions of Order VII, rule 11, C.P.C. and hence section 151, C.P.C was not attracted.

3. Mr. Khalid. M. Ishaque had submitted that he will not press for rejection of the application under Order III, rule 11, C.P.C. and would only press that suit should have been dismissed under section 1.51, C . P. C . as abuse of process and suppression of material facts by the respondent had been alleged and established. Counsel submitted that Order VII, rule 11 of C.P.C. is not exhaustive and suit can be dismissed under section 151 of C.P.C. if proper foundation for the same was established and ends of justice required it.

4. The contention of Mr. Khalid M. Ishaque appears to be correct that the matter has not been considered for the purpose of rejection/ dismissal of the plaint under section 151, C.P.C.

5. Since Order VII, rule 11, C . P . C . is applicable merely to a number of cases does not provide for rejection of the plaint or dismissal of the suit in a case where the allegations of abuse of the process of the Court are made or it is alleged that there has been suppression of material and relevant facts by the plaintiff in the plaint to defeat the ends of justice, hence such cases are not covered by Order VII, rule 11, C.P.C. but they can be canvassed under section 151 of C.P.C.

6. It, therefore, appears that in such cases provisions of section 151, C.P.C. can be reasonably made use of. Every case would depend upon its own facts. Mr. Khelid relied upon A I R 1956 Hyderabad 133, where observations had been made by the Court that Order VII, rule 11, C.P.C. is not exhaustive of all the cases in which a Court can reject a plaint or as limiting the powers of the Court in respect thereof.

7. It is apparent that section 151, C.P.C. can be made use of to avoid the abuse of the process of the Court or to secure the ends of justice which power is not available under Order VII, rule 11, C.P.C.? Thus, rejection of the plaint or dismissal of the suit sought under section 151, C.P.C. can be on considerations different from those provided under Order VII, rule 11, C.P.C. It is not necessary to visualise here a list of those situations where section 151, C.P.C. can be safely used as every case shall have to be decided on the basis of its own facts.

8. Since the application for rejection of the plaint had been made under Order VII, rule 11, C.P.C. as well as under section 151, C.P.C. and allegations of the concealment of facts by the present respondent were made in para. 5 of the affidavit of Muhammad Hussain filed in support of the application, while para. 6 of the same affidavit also stressed upon abuse of the process of law, therefore, the same required to be considered as such. But it appears that the Court below has only considered the matter from the point of view of Order VII, rule 11, C.P.C., but has omitted considering it under section 151, C.P.C., therefore, it has failed to exercise the jurisdiction that was vested in it and hence one important aspect has escaped notice.

9. I, therefore, set aside the order of the trial Court, dated 6-11-1977. I do not consider it fit to decide this matter in the High Court as the same has first to receive consideration at the hands of the trial Court for consideration of section 151, C . P . C . part of the application of the present petitioner made on 4-9-1977. It is hereby made clear that in view of the concession made before me by Mr. Khalid that he does not press consideration of petitioner's application Under Order VII, rule 11, C . P. C . , therefore, same will be left out of consideration and its part relevant only to section 151, C.P.C. would now be considered.

10. The record will be sent back to the VIth Senior Civil Judge, Karachi within a week from today. The parties are directed to be present before the said Court on 30th of this month. The trial Court is directed to dispose of the matter within 3 months of 30-8-1984. This Revision stands disposed of. M . Y . H .?????????????????????????????????????????????????????????????????????????????????????????? Petition accepted.