1983 PLP 457 (CLC)

Date of hearing :16th March, 1982. The applicant above‑named, being aggrieved by judgment and decree dated 22‑10‑1981 of the learned IVth Additional District Judge, Karachi, passed in Civil Appeal No. 315/81, by which applicant's appeal was dismissed and the order dated 14‑9‑1981 of the learned XVIth Senior Civil Judge, Karachi, rejecting the plaint of Suit No. 3777/81, filed by the applicant, under Order VII, rule 11, C. P. C. was upheld, has preferred this Revision Petition on the following facts and grounds :‑

2. Briefly the facts are that the applicant is serving as Director Postal Life Insurance Department, Government of Pakistan, now at Karachi. He was allotted a Government accommodation situated at Bath Island, Karachi, while be was posted as Assistant Deputy Director‑General Post Offices, Karachi. In April, 1980, he was transferred from Karachi and posted as Deputy Post Master General, N.‑W. F. P. Peshawar. In June, 1981, he was re‑posted at Karachi as Director Postal Life Insurance Department. During his posting in. N.‑W. F. P., the applicant was officially permitted to retain the possession of the official accommodation as per his request. He, how ever, received notice to vacate the official residence within 24 hours. On receipt ‑of this notice, he filed suit for permanent injunction, In the lower Court, the respondent filed application under Order VII, rule 11, C. P. C. for rejection of the plaint.

3. The case of the respondents was that the allotment of the disputed premises was cancelled under the Pakistan Allocation Rules, 1971. After the cancellation of the allotment, the applicant was unauthorised occupier as trespasser. It has also been contended by the respondents, that the jurisdiction of the Civil Court is barred under section 10 of the Central Government Land and Buildings (Recovery of Possession) Ordinance, 1965.

4. The learned trial Court after hearing the learned counsel for the parties, granted respondent No. 2's application under Order VlI, rule 11, C. P. C. and rejected the plaint of Suit No. 3777/81, filed by the applicant, mainly on the ground, that it was barred under section 10 of the Central Government Lands and Buildings (Recovery of Possession Ordinance, 1965, beside other reasons mentioned in the order dated 14‑9-1981, by the XVIth Senior Civil Judge, Karachi. The applicant being aggrieved by the said order filed a Civil Appeal No. 315/81 in the Court of learned IVth Additional District Judge, Karachi, which was also dismissed by the learned Additional District Judge, Karachi,‑ primarily on the ground, that section 10 of the above‑mentioned Ordinance barred grant of an injunction as prayed by the applicant in the said suit. Learned Appellate Court also took into consider ation the section 11 of the Ordinance and came to the conclusion, that since applicant has not sprima facie established males fides against the respondents, section 11 of the Ordinance was also bar to the maintainability of the suit filed by the applicant. Learned Appellate Court in view of this finding, upheld the order of the learned trial Court and dismissed the said appeal, by holding, that applicant has failed to make out a prima facie case of males fides.

5. The applicant being aggrieved by the above‑mentioned impugned orders, has preferred this Revision petition on the grounds mentioned in the memo of Petition.

6. Learned counsel for the applicant submitted that both the learned lower Courts have misinterpretated section 10 of the Central Government Lands and Buildings (Recovery of Possession) Ordinance, 1965 and have come to the conclusion, that the entire suit filed by the applicant was barred under this section. Learned counsel pointed out, that section 10 relates to grant of interim injunction and as such it has been wrongly construed by both the learned lower Courts. Learned counsel further submitted, that section 11, no doubt bars the jurisdiction of the Civil Courts, but if the action of the functionaries is males fide, the jurisdiction of the Civil Court to entertain such suit would not be barred, under section 11 of the Central Government Lands and Buildings (Recovery of Possession) Ordinance, 1965, In support of these contentions, learned counsel has relied on cases reported in P L D 1980 Lah. 322, P L D 1973 Lah. 572 and P L D 1978 Kar. 267, beside 1974 S C M R 356.

7. Learned counsel for the respondents on the other hand submitted, that both the learned Lower Courts came to the conclusion, that the applicant has failed to establish prima facie mala fides against the functionaries, in respect of his ejectment order and as such section 11 of the Central Govern ment Lands and Buildings (Recovery of Possession) Ordinance, 1965 was a complete bar to the said suit and consequently respondent's application under Order VII, rule 11, C. P. C. was rightly granted by the learned trial Court and the appeal filed by the applicant was rightly rejected by the learned Appellate Court.

8. I have taken into consideration the above submissions made by the learned counsel for the parties, and have gone through the pleadings of the parties, the copies of which have been filed with the above Revision Petition, as well as through the authorities cited by the learned counsel for the applicant. In my opinion, both the learned lower Courts have misinter preted the provisions of section 10 of the Central Government Lands and Buildings (Recovery of Possession) Ordinance, 1965 inasmuch as, that this section only bars grant of temporary or interim injunction by the Civil Courts, but in no way ousts the jurisdiction of the Civil Courts in respect of permanent injunction. I also see great force in the contention of the learned counsel for the applicant, that in spite of section 11 of the said Ordinance, the jurisdiction of the Civil Courts will not be ousted completely, if the action proposed to be taken by the Government functionaries is males fide. In support of this, learned counsel for the applicant submitted, that in the plaint allegations of mala fides have been made and it is further stated, that some of the employees, who are in the same position as applicant have been permitted to stay in the Government accommodation, but applicant is threatened to be ejected on account of males fides of the functionaries in question. Learned counsel for the respondents on the other hand drew my attention to the counter‑affidavit filed by him in the above Revision Petition and the documents produced alongwith it and stated that these documents clearly show, that the respondents have granted maximum possible time to the applicant, under the Pakistan Allocation Rules, to which he was entitled and as such the question of males fides does not arise and, therefore, the suit filed by the applicant was barred under section 11 of the Central Government Lands and Buildings (Recovery of Possession) Ordinance, 1965. I have gone through the plaint. Per se allegations of males fides have been made in the plaint and in view of this, unless the learned trial Court frames issues and disposes of such issues, after recording of evidence, the plaint cannot be rejected under Order VII, rule 11, C. P. C. This view of mine is fully supported by the cases reported in P L D 1980 Lah. 322, P L D 1973 Lah. 572 and P L D 1978 Kar. 267 besides 1974 S C M R 356, with which I am in respectful agreement, for the reasons given therein, I would like specially to refer to a case reported in P L D 1978 Kar. 267, in which it has been held as under :‑ "O. VII, r. 11(d)‑‑Plaint, rejection of‑Prayer clause of plaint‑Not to be read in isolation and divorced from case setup in plaint‑Conclusion as to suit being barred by any law‑Must be based on statement in plaint‑Court to apply its mind to case of plaintiff as set out in body of plaint as a whole assuming all averments made therein to be true in manner and form without taking into consideration pleadings raised in defence‑Defence pleas could be considered, while dismissing suit and not while rejecting plaint." I am in full agreement with the above observations of the learned Judge in the above‑mentioned case, for the reasons given by him in his said judgment and as such, I agree with the contention of the learned counsel for the applicant, that plaintiff's plaint could not have been rejected under Order VII, rule 11, C. P. C. without giving him opportunity to lead evidence to prove males f ides alleged by him, against the respondents.

9. In view of my above conclusions, I allow the above Revision Petition and set aside the impugned order dated 22‑10‑1981 of the learned IVth Additional District Judge, Karachi passed in Civil Appeal No. 315 of 1981 as well as order dated 14‑9‑1981 of the learned XVIth Senior Civil Judge, Karachi passed in suit No. 3777 of 1981 and restore the plaint of suit No. 3777/81 and remand back the said suit to the learned trial Court to dispose of the same on merits, after framing necessary issues, that arise out of the pleadings of the parties.

10. Since prima facie section 10 of the Central Government Lands and Buildings (Recovery of Possession) Ordinance, 1965 .is bar to grant of interim injunction, as such I would direct the learned trial Court to dispose of the applicant's suit within three months, from the receipt of this order, in the interest of justice. M. Y. M. Petition dismissed.