' Precisely stated facts of the case are that the petitioner, claiming to be the owner in possession of the land measuring 28 Kanals, 2 Marlas and when faced with the notification to acquire the suit- land by the respondents, filed the suit for declaration with consequential relief against the respondents, together with an application for the grant of temporary injunction. It was prayed in the said application that the respondents may be restrained to interfere in the possession of the petitioner. The learned trial Court issued summons/notices to the respondents and it while hearing the application for the grant of temporary injunction proceeded to reject the plaint in petitioner's suit, vide judgment dated 22-12-2003. Petitioner's appeal was also dismissed by the learned Additional District Judge, vide judgment, dated 6-7-2004, hence the present revision petition.
2. Learned counsel for the petitioner has contended that the learned trial Court, after hearing the parties only on the application for the grant of interim relief, rejected the plaint, which order has illegally been maintained by the learned Appellate Court, therefore, both the judgments are not sustainable in law. He has added that the possession of the questioned land is still with the petitioner 4nd that he has been condemned unheard. He has relied upon Electric Lump Manufacturer of Pakistan v. Government of Sindh and 2 others 1999 CLC 123 and Mst. Begum Jan alias Maim Jan v. Muhammad Latif Khan and 4 others 1999 MLD 1236. Conversely the learned counsel for the respondents, while refuting the said contentions, has submitted that the possession had already been taken over by the respondents and that the plaint was rightly rejected. He has referred to the judgments reported as Khalid and Company through Proprietor v. Cantonment Board, Malir through President, Commander Station Headquarter, Malir Cantonment and Cantonment Executive Officer, Karachi PLD 2002 Karachi 502, S.M. Shafi Ahmad Zaidi through Legal Heirs v. Malik Hassan Ali Khan (Moin) through Legal Heirs 2002 SCMR 338 and Farzand Ali v. Mst.
Sughran and 2 others 2003 MLD 824.
3. Admittedly after the institution of the suit, together with the application for the grant of temporary injunction, the learned trial Court issued summons/notices to the respondents and whereafter hearing the parties only on the application for stay, rejected the plaint. To my mind, the learned trial Court could not have rejected the plaint/suit, while hearing only the application for the grant of temporary injunction. It is settled law that the Court is not justified to reject the plaint or to dismiss the suit, while dismissing the injunction application or hearing the appeal or revision against an interim order. If any case-law is needed cases reported as Zafar Ahmed Ansari v. Auqaf Department through Chief Administrator, Punjab and 4 others 1996 CLC 892, Abdul Saleem and others v. Muhammad Sharif 1989 MLD 332, Mst. Zainab Jan v. Abdul Rashid 1981 CLC 1012, Mst.
Khurshid Begum and 7 others v. Inam Rabbani and another 1979 CLC 570 and Muhammad Hussain and 54 others v. Federal Government, Pakistan through Secretary Communication and Works and 2 others 1980 CLC 1656 can be referred.
4. In the instant case the learned trial Court rejected the plaint in complete oblivion of the law on the subject, as noted above. Strangely enough, the learned appellate Court failed to note this aspect of the case and instead of rectifying the legal error, committed by the learned trial Court, has illegally maintained the said order. I am inclined to set aside both the judgments and to remand the case to the learned trial Court on this short ground.
5. In the above perspective, I am of the view that both the Courts have committed illegality and material irregularity in passing both the judgments, therefore, I am inclined to exercise the revisional jurisdiction in the matter and to set aside both the judgments.
6. Upshot of the above discussion is that the present revision petition is allowed and both the impugned judgments are set aside with no order as to costs. Resultantly, petitioner's suit as well as application for the grant of interim relief shall be deemed to be pending before the learned trial Court which shall decide both in accordance' with law.