2003 PLP 1425 (CLC)

O. VII, R. 11 & S. 151

Defendant filed application under O.VII, R.11 read with S.151, C.P.C, on the grounds already taken in written statement at the stage when issues had already been framed, statement of plaintiff had been recorded and defendant reserved his right to cross- examine him

Such fact revealed that defendant had filed the said application mala fide to prolong the litigation and same was rightly dismissed by the Trial Court. Principal, Government Higher Secondary School, Oghi v. Mir Afzal and 2 others 1995 CLC 525 rel. Syed Hamid Ali Shah for Petitioner. The brief facts out of which the present revision petition arises are that respondent filed a suit for damages against the petitioner amounting to Rs.9,65,

109. The petitioner filed written statement controverted the allegations levelled in the plaint alongwith the preliminary objection that the plaint is liable to be rejected under Order VII, Rule 11, C.P.C. as it does not disclose any cause of action before the learned Civil Judge 1st Class, Lahore. During the pendency of the aforesaid suit the petitioner filed an application under Order VII, Rule 11, C.P.C. read with section 151, C.P.C. Learned trial Court dismissed the application vide order dated 30-11-2003. The petitioner being aggrieved filed this petition.

2. Learned counsel for the petitioner submits that the plaint is liable to be dismissed mere reading of the contents of the plaint alongwith the documents filed by the respondent alongwith the plaint. He further submits that respondent wanted to take benefit of his own misdeeds as the petitioner had issued a notice to the petitioner. He further submits that the learned trial Court decided the case against the petitioner in violation of the law laid down by the superior Courts. In support of his contention he referred the following judgments: -- Fazal Rahim's case 1994 MLD 126.

3. I have given my anxious consideration to the contentions of the learned counsel for the petitioner and perused the record myself. It is better and appropriate to reproduce the operative part of the impugned order to resolve the controversy between the parties:-- "It is evident from the record that the objections taken in the present application have already been taken in the written statement. The issues have been framed and the suit was fixed for evidence. The examination-in-chief of the plaintiff has already been recorded and the right to cross-examination has been reserved. It is well-settled law that while deciding the application under Order VII, Rule 11, C.P.C. only averments of the plaint are to be looked into. The tickets were given to the plaintiff at Lahore. He paid for tickets to Miss Aafia who was working for defendant No.1. The alleged grievance arise at Lahore. The plaint is not hit by section 28 of the WARSAW Convention. There is no force in the present application, therefore, the application under Order VII, Rule 11, C.P.C. read with section 151, C.P.C. is hereby dismissed:"

4. The aforesaid operative part clearly reveals that the learned trial Court rejected the application of the petitioner after applying its independent mind. It is settled proposition of law that at the time of deciding the application under Order VII, Rule 11, C.P.C. mainly the contents of the plaint are to be taken into consideration as per principle laid down in Kamal-ud-Din v. Province of Punjab and others 1977 MLD

21. The learned counsel for the petitioner failed to point out any illegality or infirmity in the order of the learned trial Court coupled with the fact that the issues have already been framed. The statement of respondent plaintiff has already been recorded. The petitioner, reserved his right to cross-examine him. This fact brings the case of the petitioner in the area that the petitioner had filed the aforesaid application mala fide to prolong the litigation. The impugned order is in accordance with law laid down by the superior Court. In arriving to this conclusion. I am fortified by the' law laid down in Principal, Government Higher Secondary School, Oghi v. Mir Afzal and 2 others 1995 CLC

525. The relevant observation is as follows:-- "On the other hand, a perusal of the pleadings of the parties would show that almost all the objections raised by, the petitioner (defendant No.3) in his application, vide which he wanted the lower Court to reject the plaint, have been duly reduced into various issues. Partial evidence of the plaintiff has already been recorded and it would be appropriate if the case is decided on merits after recording the evidence of both the parties. "

5. In view of what has been discussed above, this revision petition has no merits and the same is dismissed. S.M.B./E-34/L Petition dismissed.