1989 PLP 2473 (CLC)

This Civil Revision is directed against the judgment dated 5‑12‑1988 and decree dated 7‑12‑1988, passed by the District Judge, Karachi East, whereby he dismissed the appeal filed by the appellant and affirmed the judgment of‑ Vth Senior Civil Judge, Karachi East. The facts leading to the filing of the above suit are that the petitioner is a Central Government employee working as Male Nursing Attendant in J.P.M.C. Karachi. It is the case of the petitioner that soon after his appointment he applied for the allotment of a quarter to the Estate Officer under Rule 20 of Pakis I n Allocation Rules 1971. The further case of the petitioner as set out in the plaint is that his father was also employed in the same department and after his dismissal from service his departmental appeal was pending. It is the further case of the petitioner that on 13‑1‑1987 respondent issued a notice to the petitioner calling upon him to vacate the quarter in question within 24 hours failing which he would be evicted with police aid. The Petitioner filed a suit for declaration and injunction. Along with the plaint, the petitioner filed an application under Order XXXIX, Rules 1 and 2, C.P.C. On receipt of summons and notice of application, the respondent filed an application under Order VII, Rule 11, C.P.C. seeking rejection of the plaint. The trial Court allowed the application and rejected the plaint. The petitioner appealed against this judgment before the District Judge, Karachi East, which was also dismissed. The Petitioner being aggrieved has filed the present revision. I have heard Mr. Jamil Raza Zaidi, Advocate in support of the petition and Mr. Jalaluddin Baluch on pre‑admission notice. I have perused the judgment of the trial Court as well as order of rejection of plaint passed by the Vth Senior Civil Judge, Karachi East. It is well‑settled law for the purpose of rejection of plaint that the averment made in the plaint has to be looked into. I have perused the plaint in Suit No.63/87 filed by the petitioner. The petitioner filed suit for declaration and permanent injunction. In order to reject the plaint under Order VII, Rule 11, C.P.C. the plaint must be shown to be barred under some law. On the basis of the averments made in the plaint the Court at this stage is neither entitled to look into the pleas raised by the defendants nor can examine the merits of the allegations. In order to examine the allegations mentioned in the plaint, every allegation made by the Plaintiff in the plaint has to be accepted as correct while rejecting the plaint under Order 7, rule 11, C.P.C. The fact that the plaintiff may not ultimately succeed in establishing the allegations made in the plaint cannot be a ground for rejecting the plaint under Order VII, Rule 11, '~ C.P.C. I have gone through the contents of plaint in Suit No.63 of 1987, the photostat copy thereof annexed to the Civil Revision to find if the plaint is barred under sections 42 and 56 of the Specific Relief Act. In para.6 of the plaint the petitioner‑plaintiff averred that the action proposed to be taken by the defendant/respondent is mala fide, in that some of the employees who are in the position, even much less and recent as plaintiff have been allotted quarters and permitted to stay in the accommodation but the plaintiff is threatened to be ejected on account of mala fides of the functionaries in question. In para.7 of the plaint it is averred that the defendants have not given opportunity of hearing to the plaintiff as such has defeated the natural justice hence proved their mala fide intention towards plaintiff. In para.8 of the plaint it is averred that the defendants were issuing notice for eviction of the plaintiff in gross violation of the orders of the Federal Minister for Housing and Construction which is annexed herewith the plaint. On the face of these allegations in the plaint it cannot be said that no particular mala rides are given in the plaint and jurisdiction of the Civil Court is barred to go into these allegations. Learned counsel for the respondent contended that the suit is barred by the provision of section 42 of the Specific Relief Act. The plea raised by the learned counsel in the nature of defence in the suit cannot be looked into while considering the application under Order VII, Rule 11, C.P.C. In this view of the matter the judgment of the trial Court as well B as order of rejecting the plaint passed by the trial Court suffers from material irregularity and is made in excess or failure of jurisdiction as such I find force to interfere m this matter. The revision petition is allowed but in the circumstances of the case the parties shall bear their own costs. The suit is remanded to the trial Court for disposal according to law. The respondent is directed to file written statement before the trial Court. The trial Court is directed to dispose of the suit within six months from the date of communication of the order. M.A.K./S‑484/K Revision accepted.