This civil revision is directed against the rejection of a plaint by a Civil Judge whose order in this behalf was also upheld by an Addi--tional District Judge while dismissing an appeal of the petitioners, Mahmud Ahmad Butt and another.
2. The plaint related to a suit filed by the petitioners against the respon--dents, Lahore Development Authority and another, for grant of permanent injunction. It was alleged by the petitioners that they had purchased a building containing shops, etc., from one Haji Muhammad Nawaz. According to them Haji Muhammad Nawaz had constructed the said building by purchasing !He land underneath from certain persons to whom it had been transferred by the Settement Department as an evacuee property. It was all disclosed by them that the first respondent had prepared a development scheme and wanted to demolish the building in execution of that scheme although, as contended by the petitioners, the said respondent having not duly acquired the disputed property had no right to prepare the scheme in respect thereof, or demolish the building. It was, therefore, prayed by the petitioners that permanent injunction be issued against the first respondent restraining it from interfering with their possession in any manner.
3. Respondent No. 2, Sh. Muhammad Rafique was impleaded as second respondent in the suit at his request because it was asserted by him that he was the real owner of the property in dispute.
4. The suit was resisted by the respondents on various grounds which gave rise to the following issues.
(1) Whether the plaintiffs have no locus stands and cause of action to file this suit ? O. P. P.
(2) Whether this Court has no jurisdiction to try this suit ? O. P. D.
(3) Whether the plaintiffs are entitled to the permanent injunction prayed for? O. P. D.
(4) Relief.
5. Alongwith the plaint, the petitioners had made an application for temporary injunction which was also opposed by the respondents.
6. On 10th November, 1979, the application for temporary injunction was dismissed by the learned Civil Judge. While disposing of that applica--petition, it was also held by him that the petitioners had no cause of action and locus stands for filing the suit. He, therefore, by the same order by which the temporary injunction was refused, rejected the plaint. As indicated above, the order relating to the rejection of the plaint was challenged by the petitioners by means of an appeal before an Additional District Judge but without success. Hence this revision.
7. The order relating to the rejection of plaint was made by the learned Civil Judge without recording evidence on the issue relating to cause of action for the suit and locus standi of the petitioners to file the suit, and without making any reference to that issue. It was, therefore, agreed by the learned counsel for the parties that the learned Civil Judge had rejected the plaint under clause (a) of rule 11 of 'Order V11 of the Code of Civil Procedure. What is, therefore, to be determined is whether the rejection of plaint in the instant case was warranted by the said provisions of law.
8. Learned counsel for the petitioners contended that while rejecting the plaint the learned Civil Judge had taken into consideration the defence of the respondents as also the documents produced by them. The argument proceeds that for rejecting the plaint the learned trial Court could not take into consideration any thing except the contents of the plaint and since it had taken into account the pleadings of the respondents and the documents relied upon by them, the order of rejection of the plaint was not sustainable. He relied on Gyarsilal Jagannathprasad Mor v. Pandit Sitacharnn Dubey and others (AIR 1963 Madb. Pra. 164) ; Pahloomal Motiram v. Abdul Quddus Behari and 8 others ( PLD 1971 Kar. 250) Seven Stars Goods Transport Co. (Regd.), Karachi v. The Administrator, Karachi Municipal Corporation, Karachi (PLD 1976 Kar. 21); Din Muhammad etc. v.
Mehar All etc. (PLD 1978 Kar. 276), Mst. Bilquees and others v. Bhana (PLD 1980.Lah. 322) and Messrs Zor Engineering Ltd. v. State Bank of Pakistan (PLD 1980 Lab. 534) to support their contentions.
9. In reply, learned counsel for the respondents submitted that the learned Civil Judge had not committed any error in taking into consideration the contentions put forth by the respondents in defence of the suit or docu--ments on which they were based. Therefore, according to them, no valid exception could be taken to the rejection of the plaint ordered by him. I8 this connection they invited my attention to Burmah Eastern Ltd. v. Burmah Eastern Employees' Union and others (PLD 1967 Dacca 315) ; Shafiy Ahmed v. Mirza Muhammad Anwar Beg (PLD 1968 Lab. 367) Pakirtar.
Through Secretary, Ministry of Refugees and Rehabilitation and another v. Devachand Muljimal and others (PLD 1967 Kar. 107) and Muhammad Nasarullah v. Muhammad Ayaz Khan and another (PLD 1975 Lab. 886).
10. In addition, it was also urged by the learned counsel for the respon--dents that the word "plaint" had been mentioned in clause (d) of rule 11 of Order VII of the Code of Civil Procedure and, therefore, the Court cannot see to any thing except the statement of facts embodied in the plaint for the purpose of rejecting a plaint under clause (d) but as the word "plaint" has not been used in clause (a) of rule 11, the learned trial Court was not obliged to confine its examination to the contents of the plaint only for rejecting the plaint under clause (a). Under clause (d) a plaint can be rejected if the suit is barred by any law while'according to clause (a) a plaint can be rejected if it does not disclose a cause of action. In the instant, case, the plaint was rejected on (he ground that the petitioners (plaintiff's) had no cause of action: and locus stands for filing the suit.
11. Taking the last argument of the learned counsel for the respondents first, I would refer to rule 11 of Order VII, which reads as follows :--- "11. Rejection of plaint.--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 under valued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so ;
(c) Where the relief claimed is 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."
It is true that the word "plaint" used in the opening line of rule 11 has been repeated in clause (d) thereof, but it was necessary to do so for proper drafting of the provisions contained in said clause.
As for clause (a), the word "it" is appearing therein refers to the word "plaint" employed in the opening line.Since the word "plaint' was there in the immediatly preceding line, the draftsman had rightly avoided the use of word "plaint" at the place wherthe word "it" appears. I am, therefore, unable to agree with the learned--counsel for the respondents that since the word "plaint" does not occur in clause (a) the Court can look into material other than the contents of the plaint for rejecting the plaint for non-disclosure of cause of action.
12. Now, I advert to the authorities cited by the learned counsel for the petitioners. In the case of Gyarsilal Jagannathprasad it was held that where parties are on issue on certain statement made in their pleadings then the matter cannot be decided by the pleadings alone and the parties must produce evidence to support their averments. In the case of Pahloomal Modram it was ruled that the plaint can be rejected under rule 11 of Order V1I of the Code of Civil Procedure only when in spite of plaintiff's allegations being taken to be true, the Count finds that the plaintiff will not be entitled to get the relief. In the case of Seven Stars Goods Transport Co. (Regd.) Karachi the view expressed was that the Court shall reject the plaint if it comes to the conclusion that in the event bf the allegations made therein having been proved the plaintiff would not be entitled to any relief whatso--ever. In the case of Din Muhammad etc. It was held that the averments made by the defendant in defence of the suit are germane only to the decision of the suit on merits and, those averments can be considered by the trial Court dealing with the rejection of the plaint. The relevant observations made in that case, at page 319 of the report, reads as follows :- 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 considera--petition the pleadings raised in defence of the suit."
"The other portion of the judgment appears to have been given under clause (a) or rule I1 of Order VII. The learned appellate Court of first instance has however made disposed of this case not on the ground recognised by clause (a) of rule l I of Order VII, C. P. C. But on altogether different grounds that the question raised in the plaint could be decided either in some alternative proceedings or the plea advanced by the petitioner had legally no force. To say the least, this approach is beyond the scope and ambit of Order VII, rule 11, C. P. C. At this stage the Court only had to see to whether the plaint disclosed a cause of action. It is pleaded in para. 4 of the plaint that even if the transfer order passed in favour of respondent No. 1 was unexceptionable, the order passed by the learned Rent Controller against persons other than the petitioners could not have been executed against the petitioners for the reason that they were in possession of the property since before 1958. At this stage the petitioners had only to show that they had a cause of action is evident from the above para. The question whether the petitioners would be able to prove this matter in the Court or not cannot be decided without framing issues and without giving them an opportunity to produce evidence."
"It is an established principle of law that while considering the applica--petition 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 permis--sible to base decision relating to rejection of plaint on the data and material supplied by the opposite-party.
This may, however, be permissible but 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."
13. As regards the precedent cases referred to by the learned counsel for the respondents, in the case of Burmah Eastern Ltd., it was held that Order VII, rule 11, of the Code enumerated certain categories under which the Court is called upon to reject a plaint but it is obvious that they are not exhaustive and, therefore, even in that case where the suit is not permitted by necessary implication of law in the sense that positive prohibition can be spelt out of legal provisions the Court has inherent jurisdiction to reject the plaint. Thus, what was held in the cited case was that a plaint can be rejected on a ground other than those specified in rule 11. In the case of Shafiq rlhmad, the view taken was that if a plaint is rejected under Order VII, rule 11, the plaintiff is not precluded from presenting a fresh plaint in respect of the same cause of action merely on account of such rejection, !n the case of Pakistan through Secretary, Ministry of Refugees and Rehabilitation and another it was ruled that the Court is bound to reject the plaint if any of the four defects mentioned in rule 11 comes to its notice, irrespective of the fact as to whether such plea has been raised or not in the written statement. In Muhammad Nasarullah's case it was held that even if the issue about the payment of proper court-fee is not tried as a preliminary issue and it is found at the fag-end of the proceedings that proper court-fee had not been paid, the plaint can be rejected for non-payment of the requisite court-feeIt would, therefore, appear that in none of the authorities cited by the learned counsel for the respondents a view contrary to the one taken in the cases of Din Muhammad etc. v. Mst. Bilquees and others and Messrs' Zor Engineering Ltd. Had been expressed, that view being that for the purpose of rejecting a plaint the Court will see to nothing but the contents of the plaint itself.
14. In the case of Pakistan through Secretary, Ministry of Refugees and Rehabilitation and another, some of the defendants in a suit, who were appel--lants before the High Court, had not filed their written statements but the other defendants in suit had put in their written statements.
Subsequently, the appellants made an application that the suit was barred by certain law. The application was accepted by the trial Court. On appeal to an Additional District Judge, the order of the trial Court was set aside. The matter was, therefore, taken to the High Court. One of the contentions raised by the first respondent before the High Court was as follows :- "Firstly, the application which was made by the present appellants to 'the trial Court under Order VII, rule 11, C. P. C. Was not competent because they had been debarred from filing their own written statements which, in other words, according to counsel, meant that they could not raise any objections in the suit excepting those which were con--tained in the written statements that were filed by the other three defendants."
It was disposed of by the High Court with the following observations :- "10. The first contention of Mr. Nathulal that the appellants were not entitled to apply to the trial Court under Order VII, rule 11, C. P. C. For the rejection of the plaint, also appears to be misconceived.
Because the plea that the plaint should be rejected for one of the four defects specified in the said rule is not dependent on the contents of the written statement. It is true that such a plea is ordinarily to be found in written statements, and it is artistic, orderly and proper that it should be so raised ; but it is incumbent on the Court to reject a plaint if any of the four defects comes to its notice. For example, if the plea of limitation is not raised in the written statement but is raised by an application, it will not be rejected merely because of its ' omission in the written statement."
15. On the basis of these observations it was vehemently 'urged by the learned counsel for the respondents that the contents of the written statement can also be taken into consideration for rejecting the plaint. I am, however, unable to share their view. There can be no dispute on the proposition that a defendant can, by raising an objection in the written statement or by filing an application or by means of a verbal request ask the trial Court to reject the plaint for the suit being barred by any law or for non-disclosure of cause of action by the plaint but when the Court, on so moved or suo motu, pro--ceeds to examine the plaint in the light of the provisions of clauses (a) and (d) of rule. 11, it will look to the plaint only and not any thing else because if it acts otherwise its approach would offend against the letter and spirit of provisions contained in clauses (a) and (d).
16. When the case of Pakistan through Secretary, Ministry of Refugees and Rehabilitation and another was under discussion before me learned counsel for the respondents posed a question as to how a plaintiff would himself sa.y in the plaint of his that the suit was barred by any law. On this, I explained to him, witfi reference to a pre-emption suit, that if in the plaint it is stated by- a pre- emptor that the sale pre-empted by him had been made by means of a registered deed more than one year before,the filing of the suit it would be possible to reject the plaint under clause (d) of rule I I for the suit being barred by Article 10 of the First Schedule to the Limitation . Act, 1908, even if he does not, like any other plaintiff, say in the plaint that his suit was so barred. This means that the facts necessary for the application of clause (d) are to be gathered from the statement made in the plaint itself and if in view of the facts given therein the suit is hit by any law, which is taken notice of by the Court itself or is brought to its notice by the opposite-party, the plaint can be rejected under clause (d). Thus, the case of Pakistan through Secretary Ministry of Refugees and Rehabilitation and another can be made use of by a defendant for the purpose of seeking scrutiny of the plaint under rule I1 and not for securing rejection of the plaint on the basis of material otber than the contents of the plaint.
17. As .Explained earlier, the law laid down in the cases of Dirt Muhammad etc. Mst. Bilquees and others and Messrs Zor Engineering Ltd. Is that for purpose of rejecting the plaint the averments in the plaint only are to be taken into consideration and not the defence of the opposite-party or any other material produced by that party . This view is in consonance with the relevant provisions of law. A contrary view has not been taken in the case cited by the learned counsel for the respondents. 1, therefore, agree with the learned counsel for the petitioners that, in the instant case, the learned trial Court could reject the plaint if the plaint itself did not disclose a cause of action.
18. A bare reading of the plaint in this case would reveal that it does disclose a cause of action. The order of the learned Civil Judge by which he had rejected the plaint clearly indicates that he had taken into considera--petition the defence version on the merits of the case as also the documents placed by them on the record which, as seen above, the learned Civil Judge could not do. His order relating to the rejection of the plaint, therefore, suffers from a glaring illegality.
19. In this view of the matter, the order of the learned Civil Judge and that of the learned Additional District Judge by which he had, while dis--missing the appeal of the petitioners, affirmed the order of the learned Civil Judge cannot be upheld. I, therefore, accept this revision with costs, set aside the orders passed by the learned Civil Judge. And the learned Additional District Judge and remand the case to the learned Civil Judge for fresh decision in the light of the above observations and according to law.
20. In view of the nature of this case, I direct that the learned trial Court shall decide it as aforesaid within six months.
21. The parties are directed to appear before the learned Civil Judge on 28th July, 1980.