1991 PLP 1312 (MLD)

The present revision application has been preferred against the order dated 26-11-1987 passed by the 3rd Additional District Judge, Hyderabad in Civil Appeal whereby he has set aside order dated 25-7-1985 passed by the 1st Senior Civil Judge, Hyderabad rejecting the plaint filed by the respondent No.1 against the respondents Nos. 2 and 3 for declaration and perpetual injunction. Briefly the circumstances of the case are that respondent No.1 who is in possession of a cabin placed by him, according to the applicant, in front of her shop, was ordered to be removed on the complaint of the applicant. Respondent No.1 approached respondent No.2 the Mayor of Hyderabad Municipal Corporation, who passed order dated 17-2-1982 which was communicated by letter dated 22-2-1982 specifically stating that the cabin of respondent No-1 neither blocked the road or street, nor was an obstacle in cleaning the street. It further states that the cabin is an old one, and in case, any neighbour has any complaint against it, he should approach the Court of law. The applicant challenged the above order of Mayor before the Appellate Tribunal constituted under Sindh Councils (Appeal) Rules, 1982 which was allowed by order dated 13-10-1982. Respondent No.1 filed Suit No.494/82 for declaration that the order dated 17-12-1982 passed by the Mayor was in conformity with the law and the same is legal and valid and that the order dated 13-10-1982 passed by the Appellate Tribunal was without jurisdiction, mala fide and against the principles of natural justice. It has been specifically stated in para. 8 of the plaint that the said order was passed ex parte without any notice to respondent No.1. The applicant when came to know about the said suit filed an application under Order 1, Rule 10, C.P.C. to be joined as a party. Such application was allowed by order dated 5-1-1983. The applicant then riled an application under order 7, rule 11, C.P.C. for rejection of the plaint before the trial Court. This application was allowed by the trial Court by order dated 25-7-1985 which was set aside by impugned judgment dated 26-11-19:37 passed in appeal filed by respondent No.1. The learned Advocate of the applicant has assailed the above judgment on the following grounds: (1) The Appellate Court has committed material irregularity inasmuch as the documents placed by the applicant on record of the Court were not considered by the Appellate Court. (2) The Appellate Court has not considered the effect of section 117 of the Sindh Local Government Ordinance, 1979 which specifically bars the jurisdiction of Civil Courts. (3) The Appellate Tribunal after passing order dated 13-10-1982 had subsequently passed another order dated 20-11-1982 on review application of respondent No.1 which is not challenged in the suit and therefore, the suit is barred by law. (4) Suit is barred under section 11, C.P.C. Coming to the first contention, the learned counsel of the applicant has urged that the Court was bound to look into the documents placed by the applicant on the record for rejecting the plaint of the suit filed by respondent No.1. The learned counsel, of the applicant has cited the following authorities:-- (1) Messrs Shah Noor Studios v. W.Z. Studios 1980 C L C 433. (2) Muhammad Akhtar and others v. Abdul Hadi and others 1981 S C M R 878 . (3) Abdul Jabbar v. Muhammad Latif and others 1986 C L C 603. (4) Yar Muhammad v. Saleh Muhammad 1987 C L C 567. (5) Din Muhammad v. Abdul Rehman Khan 1989 S C M R 1207. None of the above authorities advance the plea of the applicant in any manner whatsoever and on the contrary the cases of Shah Noor Studios v. W.Z. Studios and Abdul Jabbar v. Muhammad Latif have affirmed the settled rule of law that while rejecting the plaint under Order 7, rule 11, C.P.C. the Court has to consider only the averments made in the plaint and the documents filed there with and nothing else should be looked into. The defendant for the sake of arguments must be taken to admit the allegations of the plaintiff as true in manner and form. The plaint should be rejected if the Court comes to the conclusion that even if the allegations which are made in the plaint were proved to be correct, the plaintiff will not be entitled to get the relief, but the Court cannot consider either the pleadings of the defendant nor any material outside the plaint for rejection thereof. Therefore the grievance of the learned counsel that the Appellate Court has failed to examine and consider the documents placed by the applicant on the record is of no substance. The appellate Court would have acted in violation of the aforesaid settled principle of law, if it had done so. The second contention of the learned counsel that the suit is barred under section 117 of the Sindh Local Government Ordinance, 1979 is equally without any substance. Respondent No.1 has specifically pleaded mala fides against the applicant and respondent No.3 and it has also been pleaded that the order was passed by the said respondent in violation of fundamental principles of natural justice. The above statements of facts made in the plaint are to be accepted to be true and correct while considering application under Order 7, Rule 11, C.P.C. If the statements are to be so taken, the order passed without notice cannot be allowed to stand notwithstanding the bar pleaded by the applicant. Any order passed without notice is nullity, its value is zero and is non?existent. Third contention raised to the effect that order dated 20-11-1982 passed by respondent No.3 has not been challenged in the suit and therefore the order of the rejection of the plaint ought to be maintained, it may suffice to say that the said order was passed on the review application filed by respondent No.1 and it did not by itself create any new right or liability other than the one which had come to exist by order dated 30-10-1982. The learned counsel of the applicant has also contended that the suit is barred under section 11 of C.P.C. for the reason that the, respondent had earlier riled Suit No. 1&8/73, before the 3rd Extra-Joint Civil Judge, Hyderabad which was dismissed on 30-8-1979 and the appeal filed by him was dismissed on 12-2-1981. The contention is without any substance. The suit from which the revision in hand has arisen was filed on fresh cause of action that accrued to respondent No.1 by virtue of setting at naught the order dated 17-2-1982 passed by the Mayor and the suit was filed specifically for declaration that the said order was legal and valid and the order subsequently passed by respondent No.3 was nullity in the eye of law. The matters in issue in the suit were non-existent when the previous suit was decided. Therefore, the doctrine of res judicata is not attracted in the circumstances of this case. The revision being without any substance is dismissed with no order as to costs. AA./Z-156/K?????????????????????????????????????????????????????????????????????????? Revision dismissed.