' NISAR MUHAMMAD SHAIKH, J.--- This petition is directed against the order dated 27-3-2008 passed by learned District Judge, Karachi Central whereby the Civil Appeal. No,153 of 2007 filed by the respondent No,1 Muhammad Mateen Khan was allowed setting aside the order dated 26-11-2007 passed by the Senior Civil Judge, Karachi Central rejecting the plaint of the suit of plaintiff/respondent No,1 under Order VII, Rule 11, C.P.C. On the ground that he has no cause of action against the defendants/petitioneRs,
2. The facts in brief are that in November, 2007 the plaintiff/ respondent No,1 Muhammad Mateen Khan filed a suit for declaration and permanent injunction stating in his plaint that the defendant No, 1 (petitioner No 1) Mst. Farzana was his wife while the defendant No,2 (petitioner No,2) Shah Faraz Ali was his brother-in-law and their father, who has expired, was the owner of House No, R- 914, Al-Noor Society. Federal B Area, Karachi, in which the plaintiff and the defendant No,1 were residing. It was stated that the defendant No,2 showed willingness for selling the said house to the plaintiff who, therefore, agreed to purchase the same at Rs,1,600,000. Plaintiff further stated that he is serving in ship and he used to go abroad for half to one year therefore he and the defendant No,1 were operating a joint Account No,19918-7 in HBL, Samanabad Branch, Federal B-Area, Karachi where he used to send money and the defendant No,1 withdrew a huge amount from such Bank.
Plaintiff also stated that the property in question was in lien because the deceased father of the defendants had got a loan of Rs,120000 from the HBFC which was also paid by the plaintiff. He claimed that when the sale consideration amount of the suit house was paid by him, the defendants were asked to transfer the house in his favour but the defendant No,2 took time for transferring the same on one pretext or the other. Plaintiff alleged that subsequently the defendant No,1 left the house and when his all the efforts for reconciliation were failed, he ultimately divorced the defendant No,l. According to plaintiff, the cause of action also accrued when he paid full consideration amount to the defendants but in spite of receiving such amount they failed to transfer the house in his favour. He therefore, prayed for declaration that in the light of the documentary evidence, it be declared that he has paid full sale consideration amount of the said house to the defendants who are liable to transfer the same in his favour. He also prayed for grant of injunction restraining the defendants from creating third patty interest in the suit house. He also added that he is annexing the copies of Bank I Statement and cheques to prove his contention.
3. The trial Court did not admit the above suit and rejected the plaint under Order VII, Rule 11, C.P.C.
Vide a short order dated 26-11-2007 which is reproduced below:-- "Heard counsel for the plaintiff. There is no sale agreement between parties. There is no proof that ever defendant sold out any property to the plaintiff. Hence plaintiff has no cause of action against the defendants. Plaint is rejected under U/O 7, R.11, C.P.C. There is no order of any costs."
4. On appeal filed by the plaintiff/respondent No,1, the learned District Judge after hearing the parties' Advocates, concluded that it is not a proper and legal order of the Court and thereby set aside the same, remanding the case to the trial Court with direction to admit and proceed the case in accordance with law. Such order dated 27-3-2008 has been impugned by the petitioners/defendants by way of this Constitution Petition.
5. It was argued by learned counsel for the petitioners that in fact respondent No,1 after his marriage with petitioner No,1 had taken the ground floor of the house in question on rent of Rs,10,000 per month and he lived there with his wife the petitioner No,1 while its top floor was retained by the petitioner No,2 for his use but the respondent No,1 failed to pay the rent since August, 2007 and on the demand of such rent by the petitioner No 2, he divorced the petitioner No,1 and then contracted second marriage with a girl and brought her in the rented premises wherefrom the petitioner No,1 was shifted to top floor and is living there with her brother the petitioner No,2. He further argued that the learned appellate Court acted hastily and decided the appeal while hearing injunction application, without considering the law laid down by the superior court, that the trial Court can reject the plaint at any stage when there is no cause of action. He also argued that the order of the appellate Court is illegal being in violation of the established law hence the same is not maintainable and is liable to be set aside.
6. On the other hand, learned counsel for the respondent No,1 contended that the order of the trial Court was not sustainable in law and, therefore, the same was set aside by the appellate Court. He further argued that since there was no sale agreement in writing, therefore, the respondent No,1 had filed the suit for declaration instead of specific performance of contract but the trial Court rejected the plaint saying that there is no proof of sale of the property without going through the statement of accounts as well as the cheques which were filed with plaint to show that the plaintiff had remitted a huge amount from abroad to Karachi which was withdrawn by the defendants being the amount of sale consideration and it was therefore that the plaintiff sought declaration on the basis of documentary ,evidence which was yet to be adduced by him at the relevant stage but the trial Court very hastily rejected the plaint at the time when the suit was required to be admitted.
7. After hearing the learned counsel for the parties and perusal of relevant record we did not find any substance in this petition as, for the purpose of determination whether the plaint discloses a cause of action or not the Court has to presume that every allegation made in the plaint is true and thus, only the facts stated in the plaint are to be construed to determine whether such facts constitute a cause of action or not, and accordingly the averments of plaint as reproduced above, are clearly displaying a cause of action and as such, the plaint of the plaintiff/ respondent No,1 prima facie disclosed a cause of action and therefore the invocation of the provisions of Order VII, Rule 11(a), C.P.C. For rejection of plaint was uncalled for. Since the averments of plaint disclose the triable issues, therefore. The question whether there was a contract for sale of house between the parties and whether the alleged payment made by the plaintiff to defendants was towards the consideration of sale, could not have been resolved without proper trial and therefore, the plaintiff/respondent No,1 should have been given an opportunity to substantiate his case as the matter required factual investigation in which the plaint could not be rejected in the manner as was done by the trial Court.
8. In view of the above, the reported cases as cited by the learned counsel for the petitioners in the memo of appeal, are quite distinguishable to this case in which the plaint discloses a cause of action.
9. Consequently, we find that the trial Court has wrongly resorted to an unusual course of short circuiting the matter in rejecting the plaint and such order of the trial Court was rightly set aside by the appellate Court through an speaking order which calls for no interference by this Court and it was therefore, this petition was dismissed by this Court, vide a short, order dated 12-8-2010, and these are the reasons for the same.