1979 PLP 742 (CLC)

This appeal is directed against the judgment dated 6-8-1976 delivered by the learned Additional District Judge, Gujranwala.

2. The facts necessary for the purpose of this appeal, briefly stated, are that the appellants-plaintiffs instituted a. suit against the respondent defendant in the Court of the Civil Judge, Gujranwala for a declaration to the effect that the order of the Rent Controller, Gujranwala dated 9-10-1974 passed against them and in favour of the respondent was illegal, void, without jurisdiction and ineffective as against their rights and that the respondent-defendant could not dispossess time from the excess area in their possession in addition to room No. 1 with the further prayer for issue of a permanent injunction restraining the respondent-defendant from interfering in the possession of the appellants plaintiffs. The respondent-defendant filed a written statement controverting the contents of the plaint. The learned trial Court, by its order dated 18-5-1976 rejected the plaint.

3. Aggrieved by this order, the appellants-plaintiffs preferred an appeal to the learned Additional District Judge, Gujranwala, who by his judgment dated 6-8-1976, upheld the order of the trial Court dated 18-5-1976 and dismissed the appeal. Hence this second appeal.

4. The learned counsel for the appellants contended, firstly, that the plaint could not be rejected under Order VII, rule 11, C. P. C. after the respondent had filed a written statement thereto and that the matter should have been decided after framing the issues and recording the evidence; Secondly, that the excess area in respect of which declaration was also sought for in the plaint which had been rejected was not the subject matter of the proceedings under the West Pakistan Urban Rent Restriction Ordinance, 1959, and, thus, there was no bar to the suit in so far as the said excess area and the construction thereon was concerned. Reliance in support of his above contention was placed by the learned counsel on Ghulam Qadir and others v. Seth Byramji D. .Mama P L D 1963 Kar. 300 and Abdul Aziz v. Syed Arif Ali and 6 others P I, D 1978 Lah. 441 to contend that the civil Court has the jurisdiction to entertain a suit for declaration that the order of ejectment passed by the Rent Controller was illegal and void; and Thirdly, that the case merits to be remanded if it is held that the suit was barred to the extent it seeks a declaration about the order of the Rent Controller being void for trial in respect of the other prayer made regarding such portion of the property which was not the subject of dispute in the ejectment proceedings.

5. On the other hand, the learned counsel for the respondent contended that there is no legal basis for the contention raised by the learned counsel for the appellant that the plaint could not be rejected after the filing of the written statement because if the Court finds it to be barred by law then it can do so at any time. He also urged that there is no excess area as alleged and that such a plea was never raised by the appellant in the protracted litigation which had been going on between the parties for the last 16/17 years and in the Settlement hierarchy, and in constitutional petitions arising therefrom in the High Court as also in the Supreme Court where the appellants always failed nor in the ejectment proceedings which also culminated by order dated 3-4-1975 passed by the High Court and the order of ejectment of the appellants from the house in dispute was confirmed. He submitted that all these dilatory tactics are being put into gear by the appellants for holding in abeyance their eviction from the premises in dispute, and that the equity also demands that no indulgence should be shown to them. He argued that there is no other room existing except the room front which the appellants have been directed to be evicted. In any case, he submitted, the plaint has to be rejected as a whole even if only a part of it be assumed to be not maintainable being barred by law. He relied on (Sree Rajah) Venkata Rangiah AppaRao Bahadur and another v. Secretary of State and others (A I R 1931 Mad. 175). Taking the first contention raised by the! learned counsel for the appellants into consideration, it may be pointed out that there is no impedi ment in the way of rejection of a plaint after the filing of the written statement if it is found that the plaint was liable to rejection for any of the reasons given in Order VII, rule

11. C. P. C. Clause (d) of rule 11 of Order VII, C. P. C. provides trail if from the statement in the plaint the suit appears to be barred by any law, a plaint shall be rejected. Now, section 15(5) of the West Pakistan Urban Rent Restriction Ordinance, 1959 specifically lays down that any order passed by the Rent Controller under the provisions of the Ordinance aforesaid shall not be called in question,] in any Court of law by suit or otherwise. The statement to the plaint outs of .which this appeal has arisen on a bare perusal shows that it essentially) and, in fact, materially calls in question an order passed by the Rent Con troller against the appellants which order has been affirmed by the Appellate Authority as also by the High Court under the provisions of the Ordinance) undoubtedly. This being the position, it cannot be said that the plaint in the case in hand could not be rejected merely because written statement thereto had been filed. The order of rejection of the plaint in clear terms states that the plaint is being rejected in view of section 15(5) of the West Pakistan Urban Rent Restriction Ordinance, and more so, because it did not disclosed any reason to show that the order of the Rent Controller was without jurisdiction. Similarly the learned Additional District Judge, Gujranwala while upholding the order of rejection of the plaint passed by the Civil Judge, Gujranwala dated 18-5-1976 only referred to the aver ments in the plaint filed by the appellants-plaintiffs. There can, thus, be no valid exception that can be raised against the orders of the Courts below. The contention raised by the learned counsel thus fails.

7. Adverting now to the second contention raised by the learned counsel, suffice it to say that the provision of Order VII, rule 11, C. P. C. does not admit of any ambiguity and clearly lays clown that if any defect is found in a plaint from amongst those defects which are enumerated in the said rule, the plaint shall be rejected meaning thereby that the plaint as a whole has to be rejected. It in no manner leaves any reservation in the matter of rejection of the plaint.

8. It may also be pointed out that if any plaintiff chooses in one suit) to combine several causes of action against a defendant which even the )awl may allow him it still remains one plaint and therefore -ejection of the plaint if a part of it is barred by law must be as a whole and not as to part only. The appellants-plaintiffs having themselves chosen to combine in the plaint in question a part, rather a material part, as one which is barred by law manifestly cannot be permitted to say in the absence of any step having been taken to withdraw that part of the plaint which is barred by law to reject the plaint only to the extent it is barred by law.

9. The contention raised by the learned counsel for the respondent that the present suit is only one of the steps which the appellants have been all along taking to hold the matter of their eviction in abeyance by use of dilatory tactics is also not without force. Merely by adding in the plaint in question an averment that there is an excess area when was not the subject matter of controversy in the ejectment proceedings when it is apparent from a plain reading of the plaint that the real intention of the appellant was to annul the effect of the ejectment order passed against them they cannot be shown any indulgence even if it be assumed that part of the suit was not barred by law.

10. Before parting, it may be pointed out that the authorities cited by the learned counsel for the appellants to contend that the civil Court can go into the validity or legality of the order pawed by the Rent Controller proceed on absolutely different facts and have no resemblance to the facts and circumstances of the case in hand. It has been rightly pointed out by the lower Appellate Court that there is not averment in the plaint that the order passed by the Rent Controller was without jurisdiction. I may also add that the grounds urged in the plaint to challenge the order of the Rent Controller as illegal on the face of it have no merit. In view of the foregoing discussion, I find no merit in this appeal which is dismissed with costs. M. A. K. Appeal dismissed.