P L D 1993 Peshawar 55 (PLP)

This civil revision is directed against the order dated 18‑7‑1988 of the learned Senior Civil Judge, Bannu vide which the plaint in Suit No.362/1 was rejected under Order 7, Rule 11, C.P.C. and the order was maintained by the learned District Judge, Bannu on 16‑2‑1989.

2. The facts giving rise to this civil revision may briefly be narrated as follows:‑‑

3. Abdullah Khan and two others plaintiffs/petitioners herein, instituted Suit No.613/1 on 2‑9‑1982 against Sheikh Mehboob Sabir and others, defendants/respondents herein, for declaration to the effect that being the old tenants they were entitled to purchase the land and that decree in Suit No.286/1 dated 28‑3‑1966 obtained by defendants/respondents from the Court of Senior Civil Judge, Bannu was collusive, fraudulent, void and ineffective on their rights on the basis of which Mutation No.3179 could not be attested on 23‑8‑1981. They also prayed for permanent injunction restraining defendant/respondent No.1 from interfering in their possession of the land.

4. The suit was resisted and from pleadings of the parties issues were framed. However on 13‑10‑1984 on the application of defendant/respondent No.1 that the suit was not maintainable, the learned Senior Civil Judge, Bannu obtained reply to the application and heard the arguments. On examination of the Jamabandi for the year 1979‑80, the learned Senior Civil Judge held the view that the land was owned by the Central Government, a portion of which was in possession of defendant No.1 as a tenant while some of the land was in possession of the plaintiffs as tenants. The plaintiffs/petitioners could not be unaware of the decree in the year 1966 and as such their suit was time‑barred. The plaintiffs/petitioners could not prove that they being the sitting tenants had the right to purchase the land from the Central Government, whereas defendant/respondent No.2 purchased the suit land through RL‑I

1. The learned trial Judge was of the view that the suit as filed was not competent and getting support from the case of Muhammad Yaqoob v. Ghulam Muhammad 1981 CLC 654, rejected the plaint under Order 7, Rule 11, C.P.C. on 17‑12‑1984.

5. The aforesaid order of rejection of plaint was challenged in appeal where in the appellate Court the plaintiffs/petitioners withdrew from the suit in order to bring fresh suit. The appellate Court vide order dated 2‑8‑1986 permitted him to withdraw the suit with permission to bring another.

6. The fresh suit No.362/1 was instituted on 20‑11‑1986. The defendants/respondents again moved an application to the Court for rejection of the plaint. The Court vide impugned order dated 18‑7‑1988 accepted the petition and again rejected the plaint under Order 7, Rule 11, C.P.C. on the view that plaint was the verbatim copy of the previous plaint, the suit was time?-barred and the plaintiffs had no cause of action. This order was challenged in appeal before the learned Additional District Judge Bannu who vide order dated 16‑2‑1989 placing reliance on 1981 CLC 654 upheld the order and dismissed the appeal.

7. The aforesaid two orders dated 18‑7‑1988 and 16‑2‑1989 are impugned in this revision petition. S. Zafar Abbas Zaidi, Advocate for the plaintiffs/petitioners vehemently contested the impugned orders of the Courts below and argued that the procedure, adopted by the Courts in rejection of the plaint under Order 7, Ruler 11, C.P.C. is not warranted by law. He was of the view that the trial Court could not see the Jarnabandi to arrive at the conclusion whether the suit was competent or not, the plaintiffs/petitioners had challenged the mutation attested on the basis of decree of the Court on the ground of fraud and as such the assertions in the plaint were required to be seen and not as to whether the assertions could be proved or not. In his view the case reported in 1981 CLC 654 and relied upon by the Courts below was not applicable. In support of his contentions, reliance was placed on the following authorities:‑‑ (1)??????? Ghulam Ali v. Asmatullah 1990 SCMR 1630. (2)??????? S. Naseeruddin Advocate v. Karachi Bar Association 1988 CLC 1724. (3)??????? Hyderabad Municipal Corporation v. Fateh Jang Limited 1991 MLD 284. (4)??????? M/s. Haydari Construction Co. Ltd. v. Bank of Credit and Commerce International Overseas Ltd. 1991 CLC 149. (5)??????? Mst. Fatima Moeen v. Additional District Judge, Sheikhupura 1992 SCMR 1199.

8. Mr. Abdul Samad Khan, Advocate for the defendants/respondents supported the impugned orders as being proper and legal. His arguments were that since the plaintiffs/petitioners'‑ suit was not competent, therefore, the Court rightly rejected the plaint under Order 7, Rule 11, C.P.C. Learned counsel for the defendants/respondents was of the view that the plaintiffs/petitioners have no vested rights in the suit land as the land was owned by the Provincial Government and the declaration asked for could not be granted to them under the law. Reliance was placed on the case reported as Burma Eastern Limited v. Burma Eastern Employees' Union etc. PLD 1967 Dacca

190. In reply to the arguments of the learned counsel for the plaintiffs/petitioners that for rejection of plaint under Order 7, Rule 11, E.P.C. only the assertions made in the plaint are to be seen, learned counsel for the defendants/respondents argued that not only the contents of the plaint but other materials can also be looked into. Reliance was placed on Ghulam Sarwar v. Sultan Bibi 1989 MLD 4873.

9. The orders impugned in this revision are those passed under Order 7, Rule 11, C.P.C. The order dated 18‑7‑1988 rejecting the plaint under Order 7, Rule 11, C.P.C. is based on the previous order dated 17‑12‑1984. The illegality committed by the Court is that while passing the order dated 18‑7‑1988, the order dated 17‑12‑1984 could not be considered because the suit in which the order dated 17‑12‑1984 was passed was withdrawn and fresh suit was filed. Since the Court considered the order dated 17‑12‑1984 while rejecting the plaint under Order 7, Rule 11, C.P.C. on 18‑7‑1988, therefore, learned counsel for the parties also addressed arguments keeping in view the order dated 17‑12‑1984. I have applied my mind to the respective contentions of the learned counsel for the parties. I am of the view that in the facts and circumstances of the case, the plaint could not be rejected under Order 7, Rule 11, C.P.C. on the ground that the suit was not competent. The case‑law cited by the learned counsel for the parties may, therefore, be seen. In Ghulam Ali v. Asmatullah 1990 SCMR 1630, the plaint was rejected under Order 7, Rule 11, C.P.C. on the ground that it did not disclose any cause of action. Appeal against the order was allowed and the case was remanded to the trial Court for further proceedings. The order of remand was challenged through an appeal before the High Court which was allowed, the order of remand was set aside and that of rejection of plaint was restored. Leave to appeal was granted to examine the question "Whether the appellant's plaint could be rejected under Order 7, Rule 11, C.P.C. for non‑disclosure of cause of action. On acceptance of appeal, the august Supreme Court observed as under:‑‑ "After hearing the learned counsel for both the sides we have not been able to agree with the reasoning of the High Court. Whether or not oral evidence could be led to support the assertion made in the afore? reproduced part of the plaint, it is an admitted position that the assertions made in the plaint, as they were, had to be seen for purpose of determining whether the plaint disclosed any cause of action. It is not denied that if the said reproduced averments are kept in mind regardless of the fact, whether the respondent/plaintiffs would be able to prove them or not, they do disclose sufficient cause of action to proceed further with the suit. It is also not denied from the respondent's side that lack of proof or weakness of proof in the circumstances of this case does not furnish any justification for coming to the conclusion that there was no cause of action shown in the plaint. That being so, there is no alternative but to accept this appeal, set aside the impugned judgment and restore the order of remand passed by the learned District Judge." It will, therefore, be seen that lack of proof or weakness of proof cannot be a ground for rejection of plaint.

10. In the case of S. Naseeruddin (supra) 1988 CLC 1724 after having referred to the old case‑law, it has been held that while considering the question for cause of action for rejection of plaint under Order 7, Rule 11, C.P.C. the Court has to apply its mind to the facts given in the plaint and not other matters and it is to be presumed that any allegations made in the plaint were true. In re: Hyderabad Municipal Corporation 1991 MLD 284, the observations made are that all averments made in the plaint would be presumed to be correct in manner and in form for considering whether the plaint could be rejected under Order 7, Rule 11, C.P.C. Similarly in the case of M/s. Haydari Corporation 1991 CLC 149, it has been held that for purposes of application of Order 7, Rule 11, C.P.C., only the averments made in the plaint will be looked into and nothing else In this reported case reference is made to the cases reported in 1988 CLC 1207, 1988 CLC 473, 1988 CLC 308, 1987 CLC 2461 and PLD 1981 Kar.

604. In a recently reported case of Fatima Moeen v. Additional District Judge, Sheikhupura 1992 SCMR 1199, the order of trial Court declining to reject plaint under Order 7, Rule 11, C.P.C. summarily was upheld. The authorities referred to above, do not support the order of rejection of plaint under Order 7, Rule 11, C.P.C. without application of mind and the order of rejection based on other materials has been held to be not proper. The reliance by the Courts below on the case of Muhammad Yaqoob v. Ghulam Muhammad 1981 CLC 654 was misplaced. In that case the facts were that the shop belonging to the Provincial Government was being claimed by the petitioner in a declaratory suit who was the tenant and against whom the order of ejectment had already been passed. In view of those facts, it was held that on the basis of possessory right, suit for declaration could not be decreed and the plaint did not disclose any cause of action. In the insta9t case the position is different. The plaintiffs/petitioners have not only claimed the land as tenants, but they have also challenged the decree of the Civil Court obtained in the year 1966 being executed in the year 1981. The averments made in the plaint would show that plaintiffs have challenged the decree in Suit No.284/1 as ineffective on their rights, void and not binding on them. The Mutation No.3179 attested on 23‑8‑1981 on the basis of that decree has also been challenged. It is, therefore, not correct to say that the plaintiffs/petitioners were pleading title of the Provincial Government.

11. The case‑law referred to by the learned counsel for the defendants/respondents does not support the impugned orders. In the case reported in PLD 1967 Dacca 190, the plaint was rejected under Order 7, Rule 11, C.P.C. as the suit was found incompetent under section 42 of the Specific Relief Act. This was a suit for declaration by the Burma Eastern Employees' Union that terms and conditions imposed upon the services of the members of the plaintiffs/petitioners were illegal, ineffective, ultra vires, void, ab initio. His Lordship considered the case qua the terms "legal character" used in section 42 of the Specific Relief Act and held the suit incompetent by law. The case in hand is not of that type. In the case reported as 1989 MLD 4873 the view that to invoke the provisions of Order 7, Rule 11, C.P.C. not only the contents of the plaint but material produced in defence may be kept in mind was based on the case of Nazir Ahmad v. Ghulam Mehdi etc. 1988 SCMR 824, wherein the jurisdiction of the Civil Courts was found barred under Evacuee Trust Property Act, 1957 and in that eventuality it was held that upsetting of orders of Courts regarding rejection of plaint merely for reasons that Courts were not competent to look outside the averment s made in the plaint would amount to a mere technicality. In Ghulam Sarwar's case 1989 MLD 4873, the plaint was rejected because of the embargo placed on the Civil Courts by section 172(2) (xviii) of the West Pakistan Land Reforms Act, 1967. I am, therefore, of the view that the case of Ghulam Sarwar (supra) does not support the case of the respondents, as in that case as well as in the case of Nazir Ahmad (supra), the plait was rejected under Order 7, Rule 11, C.P.C. not merely on the ground that materials outside the plaint were considered, but on the ground that the law barred the jurisdiction of the Civil Court to entertain and adjudicate upon the suit.

12. For the foregoing reasons, this civil revision is accepted, the impugned orders dated 18‑7‑1988 and 16‑2‑1989 of the lower Courts are set aside and the case is sent back to the learned Senior Civil Judge, Bannu for further proceedings in accordance with law. Parties to bear their own costs. AA./1426/P ??????????????????????????????????????????????????????????????????????????????????????????????????? Case remanded.