' The facts giving rise to this regular second appeal are that the appellants, Muhammad Hussain and fifty-four others, were in possession of certain evacuee property which, according to them, was agricultural land. The Chief Settlement Commissioner, however, treated this property as building site and transferred the same to the Public Works Department of the Federal Government.
Thereafter, the said Department threatened to eject the appellants from the property in dispute. On this, they filed the suit against three defendants, namely, Federal Government, Province of Punjab and Mr. Sarfraz Ahmad Mirza, Executive Engineer, Central III Division, P. W. D., Samanabad, Lahore.
They are respondents in the present appeal. It was alleged by the appellants that they were occupying the land as old tenants and their possession was protected by paragraphs 25 of Martial Law Regulation No,
115. They therefore, prayed for a declaration to the effect that they were lawful occupants of the land as tenants. By way of consequential relief, they asked for a permanent injunction restraining the respondents from interfering in their possession and enjoyment of the land or dispossessing them illegally and forcibly.
2. Along with the suit, the appellants made an application, under rules 1 and 2 of Order XXXIX, read with section 151 of the Code of Civil Procedure, hear in after referred to as the Code, for grant of temporary injunction to the above effect. This application was opposed by the respondents. By his order, dated the 12th February, 1978, the Civil Judge, who was seized of the matter, not only dismissed the application for grant of temporary injunction but also rejected the plaint in the suit, under rule 11 of Order VII of the Code. His order was challenged by the appellants by means of an appeal before an Additional District Judge, but in vain. They have, therefore, come up in second appeal to this Court against order relating to the rejection of plaint.
3. Learned counsel for the appellants contended that while rejecting the plaint, the learned trial Court had taken into account certain documents which could not be considered by it for the purpose of examining the plaint in the light of the provisions of rule 11, Order VII of the. Code. The plaint was rejected on the ground that the appellants had no cause of action. It was urged by the learned counsel for the appellants that the plaint did disclose cause of action and, therefore, the two Courts below had erred in applying the said provisions of the Code to the instant case. He cited Mst. Bilquees and others v. Bhana (I) Din Muhammad and 6 others v. Mehar All Khan and 2 others
(2) and M. Moosa v. Mehmood and others (3) to contend that while deciding the question whether the plaint came within the mischief of the provisions of rule 11, Order VII, the Court could not look into anything except the plaint itself. He maintained that since the lower Courts had taken into consideration certain material other than the plaint for the purpose of rejecting the plaint, their orders were bad in law.
4. On the other hand, learned counsel for the respondents submitted that the provisions of rule 11 of Order VII were not exhaustive and (1) PLD 1980 Lah. 322 (2) PLD 1978 Kan 267 (3) PLD 1954 Sind 70 therefore, the Court could, in exercise of inherent powers vesting in under section 151 of the Code, take into account material other than the plaint for ordering its rejection. In this connection, he relied on Burma'', Eastern Ltd. v. Burmah Eastern Employees Union and others (1).
5. In the case of Mst. Bilquees and others relied upon by the learned counsel for the appellants, it was ruled by this Court that for the purpose of rejecting a plaint "the Court had only to see whether the plaint disclosed a cause of action". In the case of Din Muhammad and 6 others, which was also cited by the learned counsel for the appellants, it was held that "the Court must apply its mind to the case of the plaintiff as set out in the body of the plaint as a whole by assuming all the averments made therein to be true in manner and form without taking into consideration the pleadings raised in defence of the suit".. It was also ruled in the said case that the defence plea could be considered for dismissing the suit on merits and not while rejecting the plaint. The third case to which my attention was drawn by the learned counsel for the appellants was that of M.
Musa. The observations made in that case were that when a question is raised by the defendants that the plaint did not disclose cause of action "the defendants must be taken to admit that for the sake of argument the allegations of the plaintiff in his plaint are true mood et farma-in manner and form. In considering the .....Question the written statement has also not be taken into consideration. It is only the plaintiff's allegation which if accepted to be true must disclose that the plaintiff has a cause of action against the defendants".
6. As for the case of Burmah Eastern Ltd. The view expressed therein, on which reliance was placed by the learned counsel for the respondents, read as follows "The first question that strikes one is that although under Order VII, rule 11, of the Code of Civil Procedure, it is the duty of the Court to reject the plaint if, on a perusal thereof, it appears that the suit is incompetent, the parties to the suit are at liberty to draw Court's attention to the same by way of an application. The Court can, and, in most cases, does hear lawyers on the points involved in the application. In (act, this is what has happened in the present case.
' The principles involved are two-fold: In the first place, it contemplates that a still-born suit should be properly buried, at its inception, so that no further time is consumed on a fruitless litigation.
Secondly, it gives plaintiff a chance to retrace his steps, at the earliest possible moment, so that, if permissible under law, he may found a properly constituted. Case.
' Order VII, rule 11 of the Code, as quoted above, enumerates certain categories under which the Court is called upon to reject a plaint, but, it is obvious that they are not exhaustive. It appears from the language of rule 11 of Order VII that it requires that an incompetent suit should be laid at rest at the earliest moment so that no further time is wasted over what is bound to collapse as not being permitted by law.
(1) PLD 1967 Dacca 190 ' A suit may be specifically barred by law and, in such an event, the matter would come under the express terms of clause (d) of rule 11 of Order VII of the Code. But, even in a case where a suit is not permitted by necessary implication of law in the sense, that a positive prohibition can be spelt out of legal provisions, the Court has an inherent jurisdiction to reject the plaint. This really amounts to saying that Order VII, rule 11, is not exhaustive.'
' These observations do not lay down a rule contrary to the one spelt out in the authorities cited by the learned counsel for the appellants, namely, that for the purpose of rejecting a plaint, nothing but the plaint itself is to be looked into. The new point made in the case of Burmah Eastern Ltd. Is that "Order VII, rule 11, of the Code enumerates certain categories under which the Court is called upon to reject a plaint, butthey are not exhaustive". Thus, the inherent powers can be exercised by a Court, in pursuance of the dictum in the case under study, for the purpose of rejecting the plaint on any grounds other than those expressly stated in Order VII, rule 11, and not for rejecting the plaint on the basis of some material other than the contents of the plaint. The tenor of the observations reproduced above, especially the phrasing "it is the duty of the Court to reject the plaint if, on a perusal thereof, it appears that the suit is incompetent", occurring therein would indicate that even the High Court of Dacca which, decided the case of Burmah Eastern Ltd., was of the opinion that for rejecting the plaint the Court has to confine its attention to the averments made in the plaint. It would therefore, appear that the said case can be made use of by the trial Court for the purpose of rejecting the plaint on any grounds other than those specified in rule 11th of Order VII but not for rejecting the plaint on the basis of any material other than the plaint itself.
7. Now I advert to the case in hand. The orders passed by the two Courts below in regard to the rejection of the plaint would reveal that while making those orders the said Courts had taken into consideration not only the plaint but also the written statement and certain documents. This, they could not do in view of the law laid down in the cases of Mst. Bilquees and others, Din Muhammad and 6 others and M. Musa, which were relied upon by the learned counsel for the appellants, and have been discussed earlier. According to these authorities, nothing but the averments in the plaint ate to be considered for the purpose of examining the question whether a plaint is liable to be rejected for any of the reasons enumerated in Order VII, rule 11 of the Code. As explained above, a contrary view has not been expressed in the case of Burmah Eastern Ltd. Which was cited by the learned counsel for the respondents to support the impugned orders. According to the contents of the plaint before me, it does disclose cause of action. Even in the orders passed by the lower Courts it has not been stated that according to the assertions made by the appellants in their plaint, it did not disclose a cause of action. It seems that while dismissing their application for grant of temporary injunction A it was felt by the trial Court that in view of what had been pleaded by the respondents to oppose that application and also in defence of the suit coupled with the documents placed on the record, the suit of the appellants was not likely to succeed and, therefore, the said Court decided to reject the plaint as well. This approach of the learned Civil Judge, which was also approved of by the learned Additional District Judge while dismissing the appeal, was not warranted by law because whether the appellants would be able to prove their case, as made out in the plaint, is a question which would be' decided after the issues are framed and they are allowed to produce evidence to substantiate the averments made by them. The case of Ms:. Bilquees and others, referred to above, is an authority in point.
8. What emerges from the foregoing discussion is that the order relating to the rejection of the plaint, in the suit filed by the appellants, is not sustainable in law. Therefore, I accept the appeal, set aside the impugned order and remand the case to the trial Court with the direction that it shall proceed to hear and decide it again according to law.
9. The parties are directed to appear before the learned trial Court on 1st March 1980. In view of the nature of this case, it is directed that, in the absence of any insurmountable difficulty, the trial Court shall decide the case afresh within three months.