ANWAR ZAHEER JAMALI, J.--- By this High Court Appeal, order, dated 2-5-2001 passed on C.M.A.
No,6251 of 1991 in Suit No,300 of 1988, thereby dismissing the said application under Order VII, rule 11, C.P.C. Moved by the appellants, has been assailed by the appellants.
2. Succinctly stated, the relevant facts of the case are that in April, 1988, the private respondents had brought a suit for declaration, injunction and recovery of Rs,10,25,762.50 against the appellants/their predecessors and respondents Nos.45 and 46 to this appeal. After filing of written statement by the appellants, they also separately moved an application under Order VII, rule 11, C.P.C. Seeking rejection of plaint in the suit on the grounds of "res judicata", as contemplated under section 11, C.P.C. And also being barred by limitation.
3. Learned Single Judge while passing the impugned order, recorded in detail the contentions raised on behalf of appellants in support of their application under Order VII, rule 11, C.P.C. And came to the conclusion that two legal pleas raised on behalf of appellants could not be made basis for passing of order for rejection of plaint as it would be matter of evidence to examine the applicability of these two legal pleas, effecting the maintainability of the suit. It was under these circumstances that the learned Single Judge kept both the legal pleas open for fresh adjudication after recording of evidence in the suit.
4. Mr. Naveedul Haq, learned counsel for appellants, has vehemently argued that the bar of res judicata as provided under section 11, C.P.C. Was fully attracted to the facts and circumstances of the present case, if the learned Single Judge, while passing the impugned order had taken care of various orders passed in the earlier round of litigation in respect of the same properties. In this regard he made specific reference to the order of the Custodian of Evacuee Property Sindh, Mr. Justice Syed Haider Ali Pirzada, as he then was, dated 26-1.1986 and the other order, dated 6-4- 1986 passed in Constitutional Petition No,1429 of 1974. As regards the question of limitation, learned counsel further contended that from the proceedings of Constitution Petition No,1429 of 1974, where most of the private respondents were joined as party to the proceedings on their own applications under Order I, rule 10, C.P.C., it is evident that the exclusive claim of ownership of the appellants/their predecessors in respect of disputed properties at Karachi, was well within their knowledge at least from that period, therefore, mere oral assertion of the private respondents in the plaint that the cause of action for filing of this suit had accrued in their favour when in the year 1988 the appellants have moved some application in the Custodian Department, is of no consequence.
5. In reply to the above submissions of Mr. Naveedul Haq, Mr. Muhammad Ali Hakro, Advocate for respondents Nos.1 to 44 squarely placed reliance upon the observations of the learned single Judge in the impugned order and contended that the guiding principle for examining the question of rejection of plaint is that only the averments made in the plaint are to be considered by the Court and not the pleas in defence raised by the opposite party, thus, following this clear legal position, no case for rejection of plaint was made out before the learned single Judge on any of the two grounds urged by the appellants.
6. We have carefully considered the arguments advanced by the learned counsel and perused the material placed on record, particularly the two orders earlier referred by Mr. Naveedul Haque, Advocate.
7. Perusal of the impugned order reveals that the learned single Judge has taken into consideration'not'only these two documents but also other documents placed on record by the defendants and has rightly come to the conclusion that without affording opportunity to the parties to lead their evidence, neither the issue of res judicata nor question of limitation could be decided by the Court at this preliminary stage. Such findings of the learned single Judge are based on the settled principle of law that for examining the question of rejection of plaint, mainly the averments made IA in the plaint are to be taken into consideration. Even if we agree to the submission of the learned counsel Mr. Naveedul Haq that the controversy raised in the suit as regards title of the appellants, has been decided in favour of the appellants by the Custodian of Evacuee Property, Sindh (Mr. Justice Syed Haider Ali Pirzada), vide his order, dated 26-1-1986, or the relief claimed in the suit has been refused to the private respondents by the order of this Court dated 6-4-1986 passed in Constitutional Petition No,1429 of 1974, still it will be matter of evidence to see that what could be the import of these two documents/ orders on the merits of the case of the private respondents.
8. For the foregoing reasons, we are in agreement with the observations of the learned single Judge given in the impugned order that no case for rejection of plaint is made out. Accordingly, this appeal is dismissed. However, it may further be observed that it will be open for the appellants to agitate both the pleas of res judicata and limitation at the time of further proceedings in the suit.
For examining these legal aspects the learned single Judge may frame two such legal issues, before recording the evidence in the matter.