1. 'IMTIAZ ALI, J.---Through present civil revision, petitioner has assailed the order of learned Civil Judge, Abbottabad dated 5-5-2009, whereby, learned Court suo motu rejected his plaint under Order VII, Rule 11, C.P.C. And judgment of learned Additional District Judge-IV, Abbottabad dated 4- 7-2009, dismissing the appeal of petitioner.
2. 'Briefly background of the case is that petitioner filed a suit for declaration to the effect that petitioner is lessee of a plot measuring 11.5 Marlas for a period of 15 years and respondent/lessor is not legally authorized during the currency of lease agreement to cancel the lease, evict the petitioner, etc. He also sought permanent injunction that till the expiration of lease period respondent may be restrained from interfering with the rights of petitioner under the lease agreement. The sole defendant in the case i.e, Galiyat Development Authority through its Director General entered appearance and filed written statement. The main defence taken by defendant in its written statement was that plaintiff was only authorized to construct two cabins but he has raised construction in excess thereof and, therefore, defendant has the right to demolish un- authorized construction and/or terminate the lease agreement.
3. 'That along with his plaint petitioner/plaintiff also filed an application for temporary injunction.
4. Arguments were heard on such application but while disposing of said application, the learned trial Court vide its order dated 5-5-2009 took suo motu notice of section 4(1) of Galiyat Development Authority Act, 1996 which provides for constitution of Authority and section 5(3) clause (c) whereby, the Authority is empowered to sell, lease any property vested in it and while holding that Director General, Galiyat Development Authority, Abbottabad had no authority under the relevant provisions of Act to lease the suit property, proceeded to conclude that plaintiff had no cause of action and as a consequence thereof, his plaint was rejected. Appeal against such order has been dismissed by learned appellate Court as indicated above.
5. 'I have heard learned counsel for the parties and have gone through the record.
6. 'Much has been said by learned counsel for the parties but the same necessarily relates to merits of the case which at this stage, I deem it inappropriate to comment upon. Admitted position in this case was that respondent in his written statement had never raised any objection with regard to validity of lease agreement or authority of Director General, GDA to executive lease agreement dated 26-3-2005. It was also not denied in written statement that plaintiff was in possession of leased property since March, 2005 till May, 2007, when the suit was filed or even during the pendency of the suit. Besides, learned Courts below have completely over looked the provisions of section 10 of Galiyat Development Authority Act, 1996 whereby executive authority of the Authority shall vest in and exercised by its Director General. Section 10 is repro luced below:-- "Executive Authority.---(1) Save as otherwise provided the executive authority of the Authority shall vest in, and be exercised by, its Director General.
(2) All Acts of the Authority, whether executive or not, shall be expressed and taken in the name of the authority and shall be authenticated by the Director General by affixation of his official seal."
7. 'The objection even if raised by defendant that lease agreement executed by Director General on behalf of GDA was without proper authority, would essentially be a mixed question of law and fact as to whether Director General had exercised his authority with the approval/consent of GDA or otherwise, and if said Director General had executed lease agreement in contravention of any provision of Galiyat Development Authority Act, 1996 what action was taken against the said Director General or the lessee who was plaintiff before the trial Court by the authority.
8. Power of rejection of plaint is an exceptional power to be exercised by Courts with extreme caution because such powers are an exception to general rule that all cases are to be decided on merits, after recording of evidence and not on technical grounds. It is precisely for this reason that the law permits consideration of only averments made in plaint for the purpose of deciding whether the plaint should be rejected or not for failure to disclose cause of action or the suit being barred under some provisions of law. So much so, that the Court cannot even consider pleas raised by defendant in the suit for his defence. This is a unique case where even the authority itself in written statement had not questioned the validity of lease agreement and/or authority of Director General to execute the lease agreement.
9. 'I am afraid that learned Courts below have not only mis-applied the provisions of Order VII rule 11, C.P.C. But the manner in which power thereunder has been exercised is highly inappropriate, to say the least. The scope of proceedings of an application under Order XXXIX rules 1 and 2 C.P.C. For grant of temporary injunction and that of rejection of plaint under Order VII, rule 11, C.P.C. Are quite different. If at all learned trial Court was of the view that provisions of Order VII, rule 11, C.P.C. Were attracted in the case proper notice should have been given to plaintiff to meet such objection instead of rejecting the plaint while disposing of application for temporary injunction. B Plaintiff in this case had based his claim upon an admitted document i.e, lease agreement and had sought declaration and injunction against defendant to abide by the terms of this deed and refrain from taking any action contrary to the terms and conditions of lease agreement. It is beyond comprehension as to how in view of these averments in plaint, learned Courts below came to the conclusion that plaint does not disclose cause of action.
10. The upshot of above discussion is that judgments of both Courts below are in excess of jurisdiction, based on misapplication of law and contrary to the pleadings of the parties. This Civil Revision is, therefore, allowed. Judgments of both the Courts below are set aside and case is remanded back to trial Court for decision on merits, after recording of evidence in accordance with law.
11. 'Before parting with this judgment, it may be observed that nothing in this judgment shall preclude respondent/ defendant from moving an application for rejection of plaint within the para meters of Order VII rule 11, C.P.C. And if such application is moved, learned trial Court may decide it on merits in accordance with law and should not be influenced by observations in this judgment which are tentative in tentative in nature, based on available record.