' The petitioner has assailed in this revision petition, the order, dated 20-10-2004 passed by the learned Civil Judge, Lahore whereby application of the petitioner/defendant moved under Order VII, rule 11, C.P.C. Was dismissed.
2. Brief facts giving rise to this petition are that a suit against the petitioner was filed by the respondent for recovery of Rs.21,757,608 as damages. The respondent claimed damages for breach of contract dated 6-9-2002, admittedly executed between the parties. The plaintiff claimed damages in para.10 of the plaint as under:--
(i) Loss of service charges of 3rd floor w.e.f.
November, 2002 12,100 x 50 x 6 4,500 x 50 x 7Rs.3,630,000 Rs.1,575,000
(ii) Depreciation of one escalator from upto September 2003 (271,875) Lease Financial Cost of one escalator upto September, 2003 (330,733)Rs.602,608
(iii) 4th floor of revenue w.e.f. January, 2003 to September, 2003 i.e. (Rs.350,000 x 9)Rs.3,150,000
(iv) Litigation expenses Rs.3,00,000
(v) Damages to credibility, reputation, business prospectus and deprivation of the value of propertyRs.12,500,000
3. Learned counsel for the petitioner contends that the plaint does not disclose any cause of action as, according to him, the claim of the respondent qua the damages, has arisen due to legal action initiated by the petitioner against the respondent. It was argued that suit filed by the petitioner for mandatory injunction is pending wherein the status quo order was granted to the petitioner on 2- 11-2002, which was set aside by the lower Appellate Court. The petitioner filed revision against the order of Appellate Court. The revision petition was disposed of with the direction that the learned trial Court shall decide the matter within two months. Since the matter is pending adjudication before the trial Court, therefore, the claim for loss of reputation or litigation expenses does not arise.
Learned counsel further argues that unless the lis is decided in favour of the plaintiff/respondent and against the petitioner, the respondent cannot claim any damages. Learned counsel for the petitioner in support of above contentions, has referred to the following decision:--
(1) Sarwar Khan v. Habibullah 2004 CLC 1312;
(2) Abdul Rehman v. Sher Zaman and another 2004 CLC 1340;
(3) Muhammad Akram v. Mst. Farman Bi PLD 1990 SC 28;
(4) Abdul Rauf v. Abdul Razzak and another PLD 1994 SC 476;
(5) Board of Intermediate and Secondary Education v. Khalid Mehmood 1985 CLC 657;
(6) Malik Khadim Hussain and others v. Haq Nawaz and others 2004 CLC 184;
(7) Haji Shoukat Ali v. Abdul Rasheed 2004 CLC 755;
(8) Rafique Ahmad Khan v. Province of Punjab and others 2004 SCM R 1065;
(9) Chief Officer, District Council v. Haji Sultan Safdar and others 1999 YLR 1963;
(10) Abdur Rashid v. The State Bank of Pakistan and another PLD 1970 Kar. 344
4. Learned counsel for the petitioner has also placed reliance on ' Mst. Mazhar Khanum v. Sh. Saleem Ali and others 2004 CLC 799 to contend that an incompetent suit should be buried in its buds and the Court should not delay invoking the provisions of Order VII, rule 11, C.P.C. If the Court finds that the plaint does not disclose any cause of action.
5. Heard learned counsel for the petitioner and examined the record.
6. It is settled law that for the purpose of provisions of Order VII, rule 11, C.P.C., the contents of the plaint are only to be considered. The averments of the plaint are deemed as true, while applying the provisions of Order VII, rule 11, C.P.C. The respondent had sued the petitioner for damages regarding the breach of agreement which as per the averments of the plaint was signed and executed by the petitioner as well as the respondent. It has also been averred in the plaint that petitioner signed and executed the agreement, dated 11-8-2002 wherein she admitted her membership of PACE Traders Association and also the validity of agreement dated 26-9-2001. Suit of the respondent has nexus with the present suit. Suit for mandatory injunction, filed by the petitioner titled as "Shahnaz Abbas v. Salman Taseer, Chief Executive PACE and others "is independent suit and claim of the respondent for damages does not arise out of this suit. The judgments referred (supra) by the learned counsel for the petitioner, relate to the claim of damages regarding the malicious prosecution, while the case in hand, claim of the respondent/ plaintiff is the damages for the breach of agreement. Thus, controversy involved in the suit cannot be decided unless the issues are framed and the evidence is adduced in accordance with the procedure. The learned trial Court was right in holding that the plaint cannot be rejected. There is no merit in this revision petition and the same is dismissed in limine.
Revision .