' This petition under section 115 of the Code of Civil Procedure is directed against the order dated 25-10-1979 passed by the Additional District Judge, Lahore, upholding the order dated 27-9-1979 of the Civil Judge whereby he had rejected the plaint in a suit brought by the petitioner against the respondents.
2. The material facts of the case, for the purposes of this petition, may be shortly stated. The petitioner was awarded a contract for the construction of State Bank Buildings at Lahore in respect whereof a contract was signed on 13-11-1975. The petitioner's case is that after about three years the contract was illegally rescinded by respondent No, 1 resulting into huge losses to the petitioner.
Consequently a suit for damages for the recovery of Rs, 3,13,54,490 was filed by the petitioner against respondent No, 1, and after about two months of the filing of the above-referred suit, respondent No, 1, in the exercise of its option as provided in the contract, decided to purchase some of the tools, plants, machinery etc. Belonging to the petitioner, at the current market rates to be certified by the Director of Engineering, respondent No,
2. The latter issued the certificate certifying therein the market prices of the various items, the relevant portions of which read as under :- "I further certify that the sum of Rs, 27,36,140 which has been determined as the current market value of the said machiney, tools, plant and stores that I have retained under clause (4) of the conditions of contract has been allowed for in accounts.
' This certificate is issued under clause (4) of the said conditions of the contract, after hearing Messrs Zor Engineering Ltd. On 24th February 1979, for a total value of Rs, Twenty-seven lacs thirty- six thousand one hundred and forty only."
3. By means of a suit, out of which this petition has arisen, the petitioner sought a declaration that the certificate issued by respondent No, 2 is arbitrary, illegal, mala fide and inoperative against the rights of the petitioner. As a consequential relief, the petitioner also prayed for the effect that the respondent No, 1 should not act on it and that respondent No, 2 be directed to make an honest certificate according to the current market rates. In the alternative it was prayed that the current market rates be determined by the Court. Respondent No, 1, instead of submitting the written statement, moved an application under Order VII, rule 11, C. P. C. Seeking the rejection of the plaint, inter aria, on the pleas :- "That Messrs Zor Engineers Ltd., plaintiff, have already filed a suit for the recovery of Rs, 3,13,54,490 on account of the alleged illegal rescission of a building contract by the State Bank of Pakistan, against it and the same is also pending adjudication before this Hon'ble Court posted for hearing today and proceedings have already made some progress in that suit.
' That the plaint in the instant suit, copy whereof has been received by the State Bank of Pakistan, does not disclose any cause of action whatsoever. It is further respectfully submitted that the instant suit for declaration and injunction is not at all competent. The certificate dated 25-2-1979 issued by the Director of Engineer, State Bank of Pakistan (defendant No, 2) has been issued under clause 4 of the building contract, subject-matter of the suit for damages mentioned in para. 2 above. The plaintiff has already made a reference to the adjustments made in the accounts by the State Bank of Pakistan pertaining to the price etc. Of the goods, subject-matter of the present suit, in reply to the application by State Bank of Pakistan dated 19-2-1979/21-2-1979."
' The application was resisted by the petitioner. After hearing the arguments, the learned trial Judge vide his order dated 27th September 1979, rejected the plaint under clause (d) of rule 11, Order VII of the Code of Civil Procedure, observing that the suit brought, by the petitioner was not competent. The learned Civil Judge has further observed :- "In my view, therefore, there is no cause of action for laying any claim to these articles, their use or price. That part of the case has in fact come to an end. I am, therefore, of considered view that it is erroneous to allege that this suit is against the Director of Engineering and the State Bank of Pakistan who is being termed as a pro forma. Provisions of section 42 are not at all attracted as this is not a case of legal character at all, not claiming of any property, but, as observed earlier, the plaintiffs are claiming the price of their articles lying at the site which, as seen above, has already been evaluated. The suit is not at all competent as the plaintiff can be compensated by money and there is absolutely no force in the contention of the learned counsel for the plaintiff that as right to property is involved, therefore, the suit is maintainable or that it is competent under the general provision of section 9, C. P. C. Under which all suits are competent unless specially barred. I have drawn the attention of the learned counsel for the plaintiff to the provisions of section 21(a) and 56(f) of the Specific Relief Act, which specifically bar such a suit."
' The order passed by the learned trial Judge was unsuccessfully': challenged by way of appeal before the learned Additional District Judge, who, while dismissing the appeal, observed :- "Since the appellant has filed a suit for damages with reference to the material in question and the said material has been taken over by the State Bank of Pakistan under clause 4 of the contract agreement, and the valuation of some of items are yet to be determined finally, the appellant has no cause of action. His plaint is liable to be rejected under Order VII, rule 11, C. P. C. The trial Judge has rightly rejected the same."
' The petitioner has come up to this Court in revision.
4. Learned counsel for the petitioner has strenuously argued that both the Courts below have misapprehended the statements made in the plaint and misconstrued the provisions of Order VII, r.
11, C. P. C. He urged that in applying the provisions of clause (d) of rule 11 of Order VII, C. P. C. The Courts below have acted in the exercise of their jurisdiction illegally and with material irregularity.
According to the learned counsel, the petitioner by means of this suit had simply called in question the legality or otherwise of the certificate dated 25-2-1979, issued by respondent No, 2, which had never been the subject-matter of the earlier suit. Elaborate and lengthy arguments were addressed to me to demonstrate that the provisions of Order VII, rule 11, C. P. C. Are not at all attracted to the facts of the case. He further contended that provisions of sections 21(a) and 56(f) of the Specific Relief Act have been erroneously stretched to be applicable to the case in hand.
Summing up his submissions, the learned counsel for the petitioner contended that for the purposes of considering the application of the provisions of Order VII, rule 11, C. P. C., the Courts are only to look into the statement made in the plaint and not the probable defence of the opposite- party.
5. The learned counsel for the respondents, on the other hand, supported the orders passed by the two Courts below. He further argued that the certificate issued by respondent No, 2 was in his capacity as a referee and, therefore, could not be challenged by means of a suit. According to him the suit was barred by the provisions of Arbitration Act, 1940.
6. Having carefully considered the arguments on both sides, I am of the view that any opinion expressed at this stage on the various contentions raised by the learned counsel for the parties, excepting those relating to scope of clause (d) of rule 11, Order VII, C. P. C., will prejudice the case of either party, especially when the respondents have not yet submitted their written statement and the parties have not gone into trial. Therefore, I deem it proper to concentrate only on those contentions which deal with construction and scope of the relevant provisions contained in Order VII, rule 11, C. P. C.
7. For facility of reference the said provision be reproduced:- "11. The plaint shall be rejected in the following cases:-
(a) Where it does not disclose a cause of action;
(b) Where the relief claimed is undervalued, and the plaintiff, on being required by Court to correct, the valuation within a time to be fixed by the Court, fails to do so ; (c)where the relief claimed in properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp paper within a time to be fixed by the Court, fails to do so ;
(d) where the suit appears from the statement in the plaint to be barred by any law."
8. With the assistance of the learned counsel for the petitioner, I have gone through the impugned orders and find that both the Courts below in reaching, their conclusions have been influenced by the pendency of the suit for damages previously instituted by the petitioner against respondent No,
1. In his order dated 27-9-1979, the learned Civil Judge has made the following observations :- "Evidently, the pith and substance of the plaintiffs' case herein is that they are not satisfied with the price of the machinery and tools etc. Lying at the site, fixed by defendant No, 2 who admittedly had the authority to do so under clause (4) of the agreement. It is pertinent to point out that in the suit for damages the property is mentioned in Schedule V, wherein the articles, the subject-matter of the present suit, are enumerated alongwith their prices. Evidently, therefore, the value has not only been claimed but also assessed by the plaintiffs themselves and the injunction claimed to the effect that defendant should not use the articles is meaningless."
9. On somewhat similar lines the learned Additional District Judge has toed the case and observes:- "Since the appellant has filed a suit for damages with reference to the material in question and the said material has been taken over by the State Bank of Pakistan under clause 4 of the contract agreement and the valuation of some of the items are yet to be determined finally the appellant has no cause of action."
' In the plaint no doubt the petitioner has made reference to the suit for damages previously instituted by him, but nowhere in the plaint such statements have been made as have been observed by the two Courts below. It appears that either the case file of the previously instituted suit has been consulted by the judicial officers or this material was provided by respondent No,
1. It is an established principle of law that while considering the application of the provisions of clause
(d) of rule 11, Order VII, C. P. C., the Courts are simply to examine the statement made in the plaint.
This is what has been clearly said in the provisions of law it is not permissible to base decision relating to rejection of plaint on the date and material' supplied by the opposite-party. This may, however, be permissible but A only when the parties are put to trial, i,e,, the written statement is filed and proper issues arising out of the pleadings are framed and recorded. In the case in hand this has not been done. Before invoking the provisions of the above clause the Courts must reach to an irresistible conclusion that facts alleged in the plaint, if true, would show that the disputes or matters involved in the suit are subject to a hindrance which, if interposed, will prevent legal redress. None of the Courts below have referred to any provision of law which can be said to be .a bar to the institution of the present suit out of which this revision has arisen. The learned trial Court has made reference to the provisions of sections 21(a) and 56(f) of the Specific Relief Act, to decide that the suit is not competent. Competency and bar are two distinct questions. The present suit may be incompetent but on the construction of section 21(a) and section 56(f) of the Specific Relief Act, it cannot be assumed that by force of these provisions the suit is barred. As already mentioned, I am not inclined to make a detailed examination about the application of these provisions at this stage which can be possible only upon proper trial-a stage which has not yet arrived.
10. In their orders the two Courts below have also expressed an opinion that the petitioner (plaintiff) has no cause of action. This opinion again is beyond the scope of Order VII, rule 11, C. P. C. Under clause (a) of this provision, the plaint can only be rejected if it does not disclose a cause of action.
The Courts below have nowhere held that it is so. At any rate, I have perused the plaint and find that it clearly discloses a cause of action.
11. The contention of the learned counsel for the respondents that the decision given by respondent No, 2 was in his capacity as a referee and; therefore, cannot be questioned by means of any suit, need not be considered at this stage because it has not yet been raised by the respondents who have not so far filed their written statement. It may, however, be recorded that while supporting the orders passed by the two Courts below, the learned counsel for the respondents had cited at the bar the judgments delivered in the cases of Sher Zaman Khan v. Noor Zaman Khan and another (1) and Secretary to Government (West Pakistan) v. Kati Abdul Kafil (2). There can be no dispute to the propositions of law laid down therein but these judgments at least do not deal with the limited question involved and considered by me in this petition.
12. For the reasons given above, I am of the considered view that in rejecting the plaint the Courts below have acted in the exercise of their jurisdiction illegally and with material irregularity. I, therefore, accept the petition, set aside the orders passed by the two Courts below and remand the case to the learned trial Court for decision in accordance with law. The cost in this Court to follow the event.
(1) PLD 1977 Lah. 672 (2) PLD 1978 SC 242 revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.