' Appellant has impugned the order dated 30-6-2008 whereby while hearing C.M.A. No,6522 of 2008 under Order XXXIX Rules 1 and 2, C.P.C. The plaint was rejected under Order VII Rule 11, C.P.C, The plaintiff had sought the following relief:-- "A. Declare.
(I) That the plaintiff is the sole and absolute owner of 80 acres of land Deh Kanto Malir, Karachi.
(II) That the plaintiff are legally in possession of land of 68 Acres and 15 Ghuntas of land situated in C. No,89 Deh Kanto Malir Karachi as identified in the plan dated 11 January, 2007.
(III) That the defendants have no right to dispossess the plaintiff from or resume 68 Acres and 15 Ghuntas of land situated in NC No,89 Deh Kanto Malir Karachi as identified in the plan dated 11 January, 2007.
(IV) That the defendants are stopped from dispossessing the plaintiff from or resume 68 Acres and '15 Ghuntas of land situated in NC No,89 Deh Kanto Malir Karachi as identified in the plan dated 11 January, 2007.
' Restrain
(i) The defendants from cancelling the allotment dated 21 June 2006 in favour of the plaintiff.
(ii) The defendants from forcefully resuming possession of land of 68 Acres and 15 Ghuntas of land situated in NC No,89 Deh Kanto, Malir Karachi as identified in the plan dated 11 January, 2007.
(iii) The defendant not to dispossess the plaintiff until they have completed all procedure in respect of the development of land as required in conformity with the law. C. Direct.
(i) The defendant to complete all procedure in respect of the development of land as required in conformity with the law.
(ii) The defendants to provide the plaintiff with the balance 18-23 of land. D. Grant
(i) Cost.
(ii) Any other relief that this Honourable Court may in the interest of justice may deem fit."
2. It was contended by the learned counsel that the learned Single Judge misdirected itself and rejected the plaint. Operative part of the impugned order reads as follows:-- "The admission of the learned counsel for the plaintiff that the defendants have not issued any notice for cancellation of the land and the plaintiff apprehends that the plaintiff will resume the land, clearly shows that the plaintiff has filed this suit on the basis of assumption apprehension, surmises and conjecture and assumption, apprehension and presumption, how so strong, it may be, the Court cannot accept it to maintain the suit. The suit filed by the plaintiff is, therefore, not maintainable on this score and so also premature, as such the plaint is also hereby rejected under O.VII, Rule 11, C.P.C. With no order as to cost.
3. It was contended by the learned counsel for the appellant that the plaintiff was found entitled of 88 acres of land in Deh Kanto Malir, however, they were handed over 68 acres of land and for the balance of 18.23 acres they have sought the directions per clause C (ii) of the prayer clause, and there was no reason to reject the plaint. It was further contended that the injunctive relief is always sought when there is apprehension and in terms of section 42 of the Specific Relief Act read with section 59 and Order XXXIX Rules 1 and 2, C.P.C. The aggrieved party can approach the Court.
4. Mr. Munir ur Rehman, learned counsel for the respondent No,2 supported the impugned order. It may be observed that the merits may be examined by the Court. Learned counsel appearing for the defendants has, in fact, not controverted the prima facie title of the appellant. The only ground urged is that no notice under section 24 of the Colonization of the Government Lands Act, 1912 was issued nor there was any apprehension, therefore, the suit was misdirected and the same has been dismissed.
5. Even if that be the case, at the best, the Court could have recorded such contention that the apprehension of the plaintiff was not justified and could have disposed of the injunction application only. But there was no occasion to reject the plaint under Order VII Rule 11, C.P.C. When the part claim admittedly in respect of the additional land is sub judice before the Court. It is for the Court to decide on merits of the case as to whether the plaintiff is entitled for the additional land, or for that matter, whether the law, rules and regulations prevailing there. Therefore, in view of the foregoing, the appeal succeedes and the impugned order is set aside.