P L D 1976 Karachi 21 (PLP)

Makhdoom Sharif for Applicant. Mohammad Nasir Khan for Respondent. Dates of hearing: 3rd, 4th February; 17th and 18th March 1975. The circumstances in which this revision application has arisen are as follows:

The applicants are the tenants of two godowns in a building situated on Plot No. 14-15/BR-I, Moolji Street, Kharadar, Karachi. In 1973, they were served with a notice by the Karachi Municipal Corporation to demolish the structure within seven days. The applicants sent a notice to the respondents on 19-9-1973, in which it was alleged that they had got the building inspected by an architect who was of the opinion that the same was strong enough to last for another 40 years, and that therefore, the notice was improper and with ulterior motive. They then filed a suit for declaration and injunction. During the course of the proceedings, the respondents filed an application under Order VII, rule 11 of the Code of Civil Procedure, on the ground that the suit was not maintainable in view of the bar to the jurisdiction of the Court under section 88 of the Sind People's Local Govern ment Ordinance, 1972 and also because the applicants had no legal char acter to sue the respondents as they were not the owners of the property, and therefore had no cause of action. There was a further contention that the applicants had not exhausted the remedies provided under section 88 of the said Ordinance. The learned Civil Judge, agreeing with the contention, granted the application and rejected the plaint.

2. An appeal was preferred by the applicants and the learned Addi tional District Judge, being of the view that section 88 of the said Ordinance controls section 94, found that the applicants had not exhausted their remedies, and therefore the jurisdiction of the Court was barred, and further that the applicants had no specific legal character or right to the property, and therefore could not file the suit for declaration.

3. It is an axiomatic principle of law that while considering the question, of cause of action the Court should apply its mind to the facts given in the plaint, and not to any other matter, and it has to presume that every allegation made in the plaint was true. It could therefore reject the plaint, if it came to the conclusion that if all the allegations are proved, the plaintiff would not be entitled to any relief whatsoever further, if there is any vagueness about the pleadings, the proper course is to order the party to remove the vagueness and not to reject the plaint. The applicants, as the tenants of the property, would have a cause of action, if there was a threat to the continuance of their tenancy as a result of the demolition of the structure.

4. It is true that there was a provision against the order of the Architect Control to an authority in such manner and within such period as may be prescribed". It was this order which was to be final and could not be called in question in any Court, as will be seen from subsection (2) of section 88 of the said Ordinance. The word "prescribed" has been defined under sec tion 2(45) of the Ordinance to mean "prescribed by rules made under this Ordinance". It is alleged that no rules had been framed, and therefore the appeal could not be filed, and the remedies had to be sought from the civil Courts having general jurisdiction under section 9 of the Code of Civil Procedure.

5. Admittedly, no rules had been framed by the Government. Other wise too, as held in Pehlumal Modram v. Abdul Qudus Bihari (P L D 1971 Kar. 250). "It is important to distinguish Order VII, rule 11 from the locus standi of the plaintiff and the jurisdiction of the Court". It is true that the categories under Order VII, rule 11 are not exhaustive and the Court has the inherent jurisdiction to reject the plaint, if positive prohibition can be spelled out of a legal provision, but to my mind, it was not called for in the present suit.

6. I will, therefore, set aside the impugned order, allow the revision application and restore the suit to its original number for disposal according to taw. There will, however, be no order as to costs. S. Q Petition accepted.