1991 PLP 1864 (CLC)

In this revision application what is questioned is the rejection of the plaint in Suit No. 380 of 1953 by the learned VIth Civil Judge, Karachi East and affirmation of the decree of the rejection by the learned IIlrd Additional District Judge, Karachi East. I have gone through the plaint. The allegations, in a nutshell, Are that the applicants who were plaintiffs before the learned Court of first instance are owners of a property in the respondent No. 5, Housing Society, that according to bye‑laws of such society the disputed plot belonging to the respondents- defendants 1 to 3 is meant for residential purposes alone just as the property of the applicants‑plaintiffs is, that the applicants‑plaintiffs had a right to see that the scheme to which the respondent No.5 society was subject was maintained as it is, they/their predecessors having been pursuaded to purchase/acquire the disputed property on corresponding representations, that the respondents‑defendants Nos. 1 to 3 obtained permission to raise constructions on the disputed property from KBCA, the respondent/defendant No.4, for a residential structure but that in contravention of the Regulations of the respondent‑defendant No.4 they started raising a multistoreyed building and that consequently applicants‑plaintiffs came to have a cause of action for institution of the relevant suit for the reliefs of declaration, injection etc. sought therein. On the face of it, the case of the plaintiffs‑applicants is squarely covered by the ratio in the Supreme Court case of Fazal Din v. Lahore Improvement Trust (P L D 1969 SC 223). However, Mr. Abdul Latif A. Shakoor has pointed out that the respondents‑defendants Nos.l to 3 have no intention whatever to raise any constructions in the way of a multistoreyed building and that they are strictly adhering to the approved plan issued by the respondent‑defendant No.4 and this being so and such position having been taken in the application under Order VII, Rule 11, CPC itself the learned Courts below were right in rejecting the plaint. I am afraid this is not correct: Speaking generally, a plaint must be rejected or proceed to trial only on the basis of what is stated in the plaint itself so far as the existence or non‑existence of cause of action in terms of Order VII, rule 11, CPC is concerned. If the parties are not at issue on the first date of hearing the Court can proceed to announce judgment under Order XV, rule 1, CPC which may well have been the case if the defendants‑respondents 1 to 3 were maintaining that they had no intention of violating the bye‑laws of the society or the regulations of the K.B.CA. Alternatively, the Court could also proceed to determine the controversy on admission under Order X11, Rule 6, C.P.C, Besides, there are other provisions as well in the Code of Civil Procedure which take care of such situations. In all cases, however, of this character a plaint cannot be rejected merely because the defendant does not question the rights being agitated by plaintiff (s) in a suit. In view of the foregoing, I allow this revision application. The learned trial Court would proceed with the suit in accordance with law and on the basis of averments made from either side. There will, however, be no order as to costs. AA./F‑166/K Revision allowed.