1999 PLP 961 (MLD)

5. Being aggrieved from the order of Settlement Commissioner dated 16-5-1977, Majeedullah Khan filed a Writ Petition No. 231 of 1977 challenging the vires of the same. Sher Ali Khan plaintiff/respondent No. 1 applied for impleadment in his capacity as auction-purchaser of a part of subject-matter of dispute. The application was allowed vide order dated 18-6-1978 and Sher Ali Khan was allowed to be impleaded and arrayed as respondent No.

4. The said impleadment order was challenged before the Supreme Court of Pakistan which was accepted on 27-11-1979 and Sher Ali Khan respondent No. 4 and Amanullah Khan respondent No. 5 therein were ordered to be struck off as respondents in the-writ petition.

6. Sher Ali Khan respondent No. 1 filed a declaratory suit in the Court of Senior Civil Judge, Bannu against the Central Government, Government of N. W. F. P. through Board of Revenue, Deputy Commissioner/Settlement Commissioner, Bannu, Additional Commissioner, D.I. Khan/Settlement Commissioner, D. I. Khan and Assistant Commissioner/Deputy Settlement Commissioner, Lakki Marwat which formed Suit No. 252/1 of 1991. On 6-1-1992 one Najeebullah Khan, son and alleged attorney of Majeedullah Khan, applied for impleadment of Majeedullah as party to the suit which was replied by the plaintiff/respondent No. 1 and objected to the maintainability of the application on behalf of Majeedullah Khan who was alleged to have died two years back. This position was controverted by the alleged attorney through an Affidavit. A Medical Certificate issued by Hussain Clinic, North Nazim Abad, Karachi, disclosing that Majeedullah is alive and has got a good physique and healthy. On 27-1-1992 the said attorney also applied for rejection of the plaint under Order 7, Rule 11 (a)(d) of the C. P. C. which was fixed for 29-1-1992 for replication and arguments, on which date the suit of plaintiff/respondent No. l was rejected on the ground that he has -hot come with clean hands to the Court and that he has got no cause of action.

7. Sher Ali Khan plaintiff/respondent No. 4 filed a declaratory suit against Majeedullah Khan and defendants in the earlier Suit No. 252/1 of 1991 on 14-11-1992. In the instant suit the allotment order of the Deputy Settlement Commissioner, Lakki Marwat in favour of Majeedullah Khan was challenged being illegal and ineffective upon his rights. On 17-1-1993 defendants were summoned and Majeedullah Khan applied for rejection of the suit under Order 7, Rule 11 of the C. P. C. through an application submitted by his attorney namely Fazal ur Rehman Niazi. The said application was replied by plaintiff/respondent No. 1 but the application of Majeedullah Khan was prevailed and the suit was rejected for concealment of rejection of the previous suit whereby it was held that the plaintiff has not come with clean hands and no cause of action accrued to the plaintiffs, with the result that suit of plaintiff/respondent No. 1 was dismissed vide the decree and judgment dated 14-2-1993 on a preliminary point without recording evidence. In appeal the decree and judgment of the Senior Civil Judge was set aside and the case was remanded back to the trial Court for decision afresh on merits which has been assailed in the instant revision petition.

8. The learned counsel for the petitioner contended that in view of the facts and circumstances of the case, respondent No. 1 has got no cause of action, and by suppressing material facts from the Courts he has come to the Court for discretionary relief of declaration with unclean hands his suit was liable to be rejected under Order VII, Rule 11 of the C. P. C.

9. The learned counsel for contesting respondent/plaintiff contended that trial Court has wrongly rejected the plaint summarily under Order VII, Rule 11 of the C. P. C. even without calling for written statement. Plaintiff/respondent No. 1 being a bona fide purchaser of the suit land in an open auction at a time when the suit land was available in the pool for disposal under Act XVI of 1975 and no proceedings regarding that were pending either before D. S. C., Settlement Commissioner or Chief Settlement Commissioner. Plaintiff was rightly aggrieved from the impugned allotment order dated 16-9-1992 whereby without notice to plaintiff as bona fide purchaser and in physical possession since 1977 the disputed land was illegally allotted to predecessor of petitioners. Since the suit of plaintiff was neither illegal under any law, or the cause of action was not disclosed or the suit was undervalued nor any direction for f correction of valuation was violated, the trial Court was not competent to summarily reject the suit and the District Judge on appeal has rightly set aside the same with the direction to decide the suit on merits.

10. After giving my anxious consideration to the facts and contentions of the learned Court, I am satisfied that irrespective of the merits of the case the moot question for determination by this Court is that whether the trial Court was legally competent to reject the suit under Order VII, rule 11 of the C. P. C.

11. Order VII, Rule 11, C. P. C. reads as follows: "Order VII, Rule 11: Rejection of plaint.--The plaint shall be rejected in the following cases:-- (a) Where it does not disclose a cause of action; (b) Where the brief 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 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."

12. The only contention raised at the Bar which empowers the Court to reject the plaint summarily is the non-availability of cause of action. The perusal of plaint reveals that accrual of cause of action was rightly alleged in the plaint. It has been observed in Muhammad Fazil v. Resham Jan (1983 C L C 1165) that existence of cause of action for the purpose of exercise of powers under Order VII, Rule 11, C. P. C. is to discover the same in the allegation of the plaint and not froth the written statement. In the instant case, without calling for written statement, merely on the application of defendants the suit was rejected, which is, prima facie, in disregard of the law and afore-cited judgment. Yet in another case their Lordships of the Lahore High Court in a case "Muhammad Farooq v. Province of Punjab and others" (PLD 1993 Lahore 56) it was observed that there is distinction in non-disclosure of cause of action in the plaint and non-availability of cause of action, under Order VII, Rule 11, C. P. C. only for non-disclosure of cause of action in the plaint the Court can summarily reject the suit. As already stated that cause of action was not only available to plaintiff/respondent No. 1 but it was rightly disclosed in the plaint.

13. There is another aspect of the case too. The impugned remand order of D the District Judge was, prima facie, passed under Order 41, Rule 23 of the C. P. C. Under the said provision of law the Appellate Court after reversing the findings recorded by the trial Court on a preliminary point has to remand the case back for decision on merits. Since no evidence whatsoever was recorded by the trial Court, it was incumbent upon the trial Court to remand the case for framing issues, recording evidence and, thereafter, decision on merits. In the circumstances, no exception can be taken of the impugned remand order of the District Judge.

14. For what has been recorded in the preceding paragraphs, this revision petition is without substance, and, therefore, dismissed with no order as to costs. H.B.T./149/P Revision petition dismissed.