2013 PLP 1637 (MLD)

MRS. IRSHAD QAISER, J.

Through the present revision petition under section 115 of the Code of Civil Procedure, petitioner Ali Akbar has called in question the order dated 22-12-2011 of the learned Additional District Judge-XII, Peshawar, whereby he, while maintaining the order of the learned Civil Judge dated 27-7-2011, dismissed the appeal of the petitioner.

2. Brief facts arising out of the instant lis are that respondent Pakistan International Airlines at Peshawar advertised certain vacant posts including that of Machinist and accordingly, the petitioner too applied for the said post of Machinist. According to him he topped the merit and was sanguine about issuance of appointment letter in his favour but the respondents unnecessarily kept mum and were reluctant to issue appointment letter. However, later on it came to his knowledge through reliable source that the High-ups of the PIA were going to consider their own persons. Disappointed from the disgusting attitude of the PIA authorities, he instituted a civil suit for issuance of direction to the defendants to adjust him on the said post by issuing an appointment letter in his favour. The learned trial court summoned the defendants and they were directed to file written statements and written reply. However, on the date fixed for written statement and written reply, the learned trial court dismissed the suit as not maintainable, vide order dated 27-7-2011. Appeal filed by the plaintiff/petitioner was also dismissed by the learned Additional District Judge, vide order dated 22-12-2011. Hence, this revision petition.

3. The learned counsel for the petitioners contended that the learned trial court by dismissing the suit of the petitioner as not maintainable has acted in undue haste as without calling for written statements, framing issues and recording pro and contra evidence, he could not dispose of the matter summarily and that the learned appellate court too danced in the same tune by upholding the treatment meted out by the trial court and thus the findings of both the courts below are not tenable in the eye of law.

4. While on the other hand, the learned counsel appearing on behalf of the respondents contended that the averments made in the plaint filed by the plaintiff/petitioner are based on bald assertions and not supported by any documentary evidence qua his higher merit position as the record available with the respondents speaks otherwise and thus the trial court as well as the appellate court have rightly declined the relief asked for by the petitioner and thus the concurrent findings of the two courts below are not open to interference.

5. I have gone through the record carefully and have also considered the submissions made by the learned counsel for the parties.

6. Plaintiff's suit was dismissed by the trial court as being not maintainable. Perusal of the impugned order of the trial court reveals that it has been passed by attracting the provisions of Order-VII, Rule-11 C.P.C., without waiting for filing of the written statements, framing of issues in the light of divergent pleadings of the parties and recording some evidence. Though defendant can move the court for resorting to aforesaid provision of the Code but only after recording of some of the evidence to prove that because of the stance taken by the plaintiff in the suit, the plaint merits rejection under Order VII Rule 11 C.P.C. In the instant case, this set principle was totally bypassed. This court in a case reported as Banaras Khan v. Galiyat Development Authority through District General GDA Officer (2010 YLR 1548 (Peshawar) while dealing with a similar proposition held as under:-- "Power of rejection of plaint is an exceptional power to be exercised by Courts with extreme caution because such powers are an exception to general rule that all cases are to be decided on merits, after receding of evidence and not on technical grounds. It is precisely for this reason that the law permits consideration of only averments made in the plaint for the purpose of deciding whether the plaint should be rejected or not for failure to disclose cause of action or the suit being barred under some provisions of law. So much so, that the Court cannot even consider pleas raised by defendant in the suit for his defence." Admittedly, the plaintiff in the instant case in support of his claim relied on certain documents hinting his success in certain tiers necessary for appointment against the post applied for and thus without rebuttal on the other side, his claim cannot be thrown to the dust bin as the substantial justice demands that his claim should have been considered in the light of evidence brought by the defendants refuting his claim set up in the plaint but sans that exercise, resort to Order VII, Rule 11, C.P.C. would amount to miscarriage of justice. Reliance is also placed on the case reported as Lal Zamin alias Lalono Zargar and others v. Asfandyar Khan and 2 other (PLD 2012 Peshawar 75).

11. As a sequal to my above discussion, this revision petition is accepted, the orders of both the courts below are set aside and the case is remanded back to the trial court for decision afresh in the light of directions hinted to above. There is no order as to costs. Parties to appear before the trial court on 26-4-2013. JJK/252/P Petition accepted.