1990 PLP 1053 (CLC)

The petition is addressed against the order of the learned District Judge, Mirpur, passed on November 25, 1989 whereby order of Sub‑Judge, Mirpur, passed on July 30,1989, resulting in rejection of plaint of the petitioner, was maintained.

2. Jahangir Akhtar brought a suit for perpetual injunction in respect of a shop constructed over an area measuring 19' x 6' in Sector B‑1, Shopping Centre, Nangi, Sarafa Bazar, Mirpur City, in the Court of Sub‑Judge, Mirpur, on October 16, 1988. It was averred that the plaintiff‑petitioner acquired open site measuring 19' x 6' on payment of rent and with the permission of the Municipal Committee, the owner of the land, raised a shop. He regularly paid the rent for the use and occupation of the site in the shape of the shop. Plot No.236 owned by the defendants was situate on the eastern side of the said shop. The defendants having no right or authority were determined to demolish the shop and cover the area under it by extending their construction. He also applied for grant of interim injunction. The learned Sub‑Judge initially allowed the interim injunction on the day of institution of the suit. The defendants‑respondents, in their written statement, repudiated the claim of the plaintiff and averred that the land in question was, in fact, part of Plot No.236 which was acquired by them in their own name. It was further averred that there being no cause of action, the suit of the plaintiff was liable to be turned down. They also applied for vacation of the interim injunction. On July 30, 1989, on presentation of written statement, the learned Sub‑Judge rejected the plaint. This order was maintained by the District Judge. Thus, the findings of the subordinate Courts are assailed in the present revision petition.

3. Agha Ashiq Hussain, the learned Counsel for the petitioner, argued that both the Courts misdirected themselves by rejecting the plaint of the plaintiff for want of cause of action. It was emphasised that the allegations entered in the plaint, prima facie, constituted a cause of action, as such the plaint was not liable to be rejected. Reference was made to P L D 195.1 Sind 70, P L D 1971 Karachi 250 and P L D 1983 Lahore

278. Mr. M. Azeem Dutt, the learned Counsel for the opposite side, controverted the aforesaid contentions and argued that the plaintiff had no locus standi to institute the present suit in the present form. It was argued that the site in dispute according to the plaintiff, was in the ownership of Municipal Committee, as such the Municipal Committee was competent to bring the action. The learned Counsel argued further that in fact, the site in dispute was part of Plot No.236 which was in the ownership and possession of defendants. Thus, the orders passed by the subordinate Courts were quite legal, as such sustainable. He cited 1984 C L C 726.

4. The impugned orders have been passed in the manner of rejection of plaint as contemplated under Order 7, Rule 11, C.P.C. Rule 11 postulates four conditions under which a plaint has to be rejected by the Court. These conditions are:‑‑ (a) where the plaint 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 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. Condition (a) applies to the present case. It pertains to disclosing of a cause of action. It is, therefore, relevant to appraise the term "cause of action". Ordinarily, the expression "cause of action" relates to averments of facts constituting the claim or right of the plaintiff, against the defendant, necessitating an action in the Court of law. Thus, the statement of main facts alleged in the body of the plaintiff referring to infringement of rights, constitutes a cause of action. The expression "cause of action" was examined by this Court in Mst. Resham Jan's case (PLD 1981 AJK 16) as:‑‑ "The expression `cause of action' used in the Code in its general sense, refers to and signifies averment of facts or state of facts, giving rise to a claim or right of the plaintiff, against the defendants, sufficient to enable a Court in rendering a judgment or to grant relief. It excludes relief sought for and plea of defendant. It may mean facts or allegations, contemplating a claim or right and infringement of a right. In order to ascertain the cause of action, it is incumbent upon the Court to apply its mind to the averment of facts, made in the plaint and conclude as to whether presuming the averments to be'true, it can grant the relief to the plaintiff or not. In case it is satisfied that on such presumption or on proving the allegations, relief can be allowed, it shall not reject the plaint by invoking provisions of rule 11:' The Supreme Court of Azad Jammu and Kashmir reviewed the expression "cause of action" in this very case, on appeal of Muhammad Fazil (1983 CLC 1165) as:‑ "For the purpose of determination whether the plaint discloses a cause of action or not the Court has to presume that every allegation made in the plaint is true. Therefore, the power to reject a plaint under this Rule must be exercised only if the Court comes to the conclusion that even if all the allegations are proved, the plaintiff would not be entitled to any relief whatsoever." The learned Chief Justice of the Supreme Court approved the aforesaid analysis of the expression "cause of action" recorded by this Court. The authorities cited by the learned counsel for the petitioners were examined in Mst. Rcsham Jan's case PLD 1981. AJK 16, in order to arrive at an ultimate conclusion. Therefore, these authorities may not be reproduced here. The authority cited by Mr. M. Azeem Dutt, the learned counsel for t he respondents, is not relevant to the proposition under consideration. As a matter of fact in that authority, it was emphasised that all facts necessary to establish the existence of cause of action or defence were required to be introduced in the pleadings of the parties. The plaint was entertainable only when it disclosed a cause of action in favour of plaintiff, against the defendant. That proposition is very well‑accepted and there is no second view about the same. In the present case, the proposition is quite different.

5. In this case, the plaintiff invoked the jurisdiction of Civil Court for securing perpetual injunction against the defendants in respect of the site of Municipal Committee secured by him on rent, alongwith the structure raised by him at his own costs. It was averred that the shop was raised on the site let out on rent by the Municipal Committee, the true owner of the land. He was in possession of the same for the last more than 5 years. The defendants having no title or interest in the same were interfering in possession of the plaintiff. It was, therefore, expedient to direct them to refrain from encroaching upon the premises of the plaintiff. The averments made in the plaint, prima facie, constituted a cause of action by showing interest and right of plaintiff to use and occupy the premises and the site unless he was evicted from the same in due course of law.

6. The learned Sub‑Judge rejected the plaint on appraisal of the receipts appended with the plaint alongwith the site plan of Plot No.236, duly attested by the Municipal Committee. It was held that the receipts of payment of rent created no right in plaintiff for the suit land and as against that, certified copy of plan suggested that the suit land was part of Plot No.236. 1n the circumstances, the plaint was rejected under Order 7, Rule 11, C.P.C. The aforesaid finding, prima facie, indicates that the learned Sub‑Judge rejected the plaint of the plaintiff on the basis of evidence appended with the pleadings of the parties. It was, therefore, not a case of rejection of plaint for want of cause of action but for want of proof. Rule 11, as discussed earlier, does not conceive of evidence proposed to be produced in support of respective claims of the parties. It only contemplates rejection of plaint, among others, for want of cause of action. Thus, the learned g Sub‑Judge obviously misdirected himself by rejecting the plaint for want of proof in support of the alleged claim of the plaintiff. An identical view was expressed by the learned District Judge. The learned District Judge went further and held that in case of breach of right of plaintiff, he should approach the Municipal Committee, the actual owner of the land.

7. Next, it was emphasised that the site plan produced by the defendants disclosed that the site in dispute was, in fact Plot No.236 and not open site as claimed by the plaintiff. It was quite clear that the appeal was dismissed on merits for want of proof, proposed to be led in support of the claim of the plaintiff. Both orders are quite derogatory to the scheme of law postulated under Rule 11 of C‑ Order 7, C.P.C. The petition is, therefore, accepted. Both the orders are set aside and the case is sent back to the rile of Sub‑Judge, Mirpur for its disposal on merits. Before parting with the case, it may be mentioned that the interim injunction is issued on the satisfaction that necessary conditions contemplated under Order 39, Rules 1 and 2, C.P.C. are fulfilled. 1n case one of the conditions is lacking, the Court is free to decline the interim relief. This observation is made only as precaution so that on remand of the case, the learned Sub‑Judge may not be influenced to presume that the interim relief sought by the plaintiff may be given irrespective of the presence of other conditions in addition to a prima facie case. The parties are directed to appear before the learned Sub‑Judge, Mirpur, on March 3, 1990. . H.B.T./404/H.C.A. Case remanded.