1983 PLP 2465 (CLC)

(b) Cost of the suit. (c) Any other relief which this Hon'ble Court deems fit." As this suit was also contested, issues were framed by the Court.

3. It maybe mentioned here that both the above-referred suits were by consent of the parties consolidated. The same heard together and common evidence was recorded.

4. After the evidence had been recorded and the suits were reserved for judgment, application under Order V11, rule 11, C. P. C. was moved on behalf of the respondent praying therein that the suits be declared to have abated and that the Civil Courts had no jurisdiction to proceed with the suit or make any order as provided under section 11 of the Sind Public Property (Removal of Encroachment) Act V of 1975.

5. The learned VIIth Senior Civil Judge, Karachi by orders passed on 21st July, 1976, allowed the applications and declared the suits as hav ing abated.

6. Both the plaintiffs went in appeal, which were registered as Civil Appeal Nos. 317/1976 and 347/1976. The appeals were heard by the learned V1Ith Additional District Judge, Karachi, who by judgment dated 12th October, 1977, upheld the orders of the learned trial Court and dismissed the appeal.

7. The present Revision Application No. 204/1977 and Second Appeal No. 1977 have been filed by the respective plaintiffs. Both the cases have been heard together. The learned counsel for appellant in Second Appeal No. 231/1977 concedes that the appeal is not competent but prays that the same be trea ted as revision petition under section 115, C. P. C. Since the memo presen ted in this Court is otherwise in proper form, and no prejudice is likely to be caused to any of the parties the appeal is allowed to be treated as a revision petition. Both these petitions are heard together by consent of the parties and are disposed of by this order.

8. The learned counsel for the appellants submitted that both the suits were filed in 1963 and that the plaints did not raise/disclose any dispute or plea which required determination that the "property in question is not a public property" or that any lease or licence in respect of such a property has been determined" within the meaning of the Sind Public Property (Removal of Encroachment) Act, 1975. It was also contended that the plaints filed by the applicants contained no averment that any action or purported action done under the said Act was challenged or required determination. Accordingly it was argued that the rejection of the plaint under Order VII, rule 11, C. P. C. was not warranted. The learned counsel for the applicant in support of their submissions placed reliance upon the judgment of a learned Division Bench of this Court in the case of Syed Weedal Shah and 8 others v. Province of Sind and another (P L D 1978Kar. 464), and two others and S. B. judgment of this Court reported as Essar Das and another v. Government of Sind (P L D 1978 Kar. 454) and K. M. C. v. Ali Hussain (P L D 1976 Kar: 995).

9. In order to appreciate the arguments I may refer here to the principle laid down by the learned Division Bench in the case of Weedal Shah where the learned Judges held : ‑ "It is well settled rule that the ouster of jurisdiction of a Civil Court in respect of a Civil Suit is not to be readily inferred and unless that jurisdiction has been either expressly or impliedly taken away, it will continue to vest in the Civil Court. Subsection (1) of section 11 of the Act bars the jurisdiction of Civil Courts from making any order in relation to a dispute that any property is not a public pro perty but the important words that follow thereafter are‑ "for the purpose of this Act or anything done or intended to be done under this Act." which would go to show that the bar was not an all purpose bar but only in relation to purpose of the Act or anything done or intended to be done thereunder. It is also significant that in subsection (2) of section 11 of this Act, which provides for abatement of all suits, appeals, relating to encroachment and dispute that any property is not a public property is also followed by the limiting words "for the purpose of this Act". It will be noticed that under the Ordi nance the bar to Civil Courts' jurisdiction did not extend to adjudica tion by the Civil Courts upon the dispute that property is not public property and to my mind subsection (2) of section 11 was intended to abate such suits allowed by the Ordinance following the proceedings for removal of encroachment or eviction under the Ordinance. Again, under section 13 of the Act the tribunal has been given exclu sive jurisdiction to adjudicate upon a dispute that any property is not a public property for the purpose of the Act". In other words the exclusive jurisdiction of the Tribunal to determine this question would be when such a question arises in the proceedings contempla ted by the Act and not independently of it. The bar to the jurisdic tion of the Court even if we were to assume that it was broadly worded must in its application be limited to the object in view before the Legislature and the subject‑matter of the ejectment. Our conclu sion, therefore is that petitioner's suit was not barred under sections 11 and 13 of the said Act for the question whether ‑or not the subject land was public property arises not in relation to the Act or any proceedings thereunder but independently of it. The petitioners plaint was therefore, wrongly rejected under Order V11, rule I1, C. P. C."

10. The learned counsel for the respondent/K. M. C. opposed the revision applications and submitted that the evidence led clearly shows that both suits were barred under the aforementioned Act No. V of 1975. It was also contended that the subject‑matter of the said suits, is beyond the pecuniary jurisdiction of the Civil Courts at Karachi. According to the learned counsel in fact and law there no allotments or valid allotments in favour of any of the plaintiffs and that they are merely encroachers upon public property having no interest in it.

11. I have carefully considered the arguments of the learned counsel for the parties and find that the principle laid down in the above‑mentioned judgment of the learned Division Bench in the case of Weedal Shah refer red to above fully applied to the facts of the case. The allegations made in the plaint in the two suits as framed do not involve any question for determination that the property in suit "is not a public property" or that any lease or licence in respect of property has not been determined. Nor anything or act done or intended to be done under the said Act (Act V of 1975), has been challenged in the plaints. There is no denying of the principle that for purpose of rejecting a plaint under Order VII, rule 11, C. P. C. only the averments made in the C plaint are to be taken into consideration. If any authority is needed reference be made to the case of Moosa v. Muhammad (P L D 1954 Sind 70), where it was held that :‑ ‑In asking the Court to decide an issue as to the absence of cause of action the defendants must be taken to admit that for the sake of argument the allegations of the plaintiff in his plaint are true modoet forma‑in manner and form. In considering the present ques tion the written statement has also not to be taken into considera tion. It is only the plaintiff's allegation which if accepted to be true must disclose that the plaintiff has a cause of action against the defendants." In the light of the above referred case of Moosa v. Muhammad (I) I am of the opinion that the plaints could not have been rejected under Order VII, rule 11, C. P. C. by reference to defence plea.

12. As regards the plea urged by learned counsel for K. M. C. that the suit is beyond the pecuniary jurisdiction of the trial Court it is hardly necessary to mention that the trial Court is competent to look into this aspect of the case and determine if the suits have been valued arbitrarily or mala fide and if so, what order should be passed.

13. The learned counsel for the respondent states that the Court may make an order to the effect that during pendency of these suits, is no bar to the exercise of power by the relevant authorities to take action /proceedings under Act No. V of 1975 or under any other law against the applicants in respect of the property in question. No such order from this Court is necessary as mere pendency of a suit does not E take away right/jurisdiction of relevant authorities to act in accordance! with the law.

14. Subject to the above observations the impugned orders are set aside and the cases are remanded to the trial Court for disposal accord ing to law. K. M. A. Orders set aside.