' KH. IMTIAZ AHMAD, J.---Through the present Civil Revision the order dated 8-6-2005 passed by the learned Civil Judge, Chakwal whereby while disposing of the application for temporary injunction he rejected the plaint-under Order VII Rule 11, C.P.C. And the order dated 13-9-2005 passed by the learned District Judge Chakwal whereby he dismissed the appeal have been challenged.
2. The relevant facts for disposal of this civil revision are that present petitioner filed a suit for injunction against the respondent claiming therein that the land measuring 20 kanals 2 marlas bearing khasra Nos.1190 to 1192 fully mentioned in the head note of the plaint was in possession of plaintiff as co-sharer and the plaintiff had no adverse interest against his co-sharers and the defendant had no concern with the land in dispute. It was further alleged that the land was "Shamlat Deh and on its southern side there was land of the defendant but the defendant tried to interfere into the possession of the plaintiff and his other co-sharers and also cut down the trees. It was further alleged that in Khasra No,1192 in some land there was crop and which had been removed by the defendant valuing Rs,20,000 so, it was prayed that the defendant be restrained to interfere into the Possession of the plaintiff and his co-sharers and should also pay Rs,20,000 as costs of trees removed by him.
3. The suit was resisted by the defendant who filed written statement in which it was mentioned that the defendant was also co-sharer in "Shamlat Deh" and land in dispute was in his possession.
Along with the suit an application for temporary injunction was also moved and while hearing the arguments on the application for temporary injunction on 8-6-2006 the learned trial court came to the conclusion that previously the learned Additional Sessions Judge, vide order dated 2-3-2005 had directed the parties to approach the revenue authorities for rendition of accounts and for partition of property in question but the plaintiff instead of approaching the revenue authorities had filed a suit and that too only of injunction which was not maintainable in its present form. He further observed that plaintiff did not also implead the other co-sharers and so rejected the plaint under Order VII Rule 11, C.P.C. The appeal as mentioned filed by the present petitioner was also dismissed.
4. Learned counsel for the petitioner contended that the learned courts below had rejected the plaint under Order VII Rule 11, C.P.C. On two grounds. Firstly that the suit was not maintainable in its present form and secondly that the co-sharers were not impleaded. He contended that Order VII Rule 11, C.P.C. Has no nexus with the grounds mentioned by both the courts below. The plaint can not be rejected on the ground that the form of the suit is incorrect nor the plaint can be rejected that the necessary parties are not impleaded since in such eventuality the court has the power to direct for impleading- necessary parties or to delete them.
5. Learned counsel for the respondent, on the other hand contended that the plaint was rejected on the ground that it was barred by law since defendant was also co-sharer in "Shamlat" and similarly the plaint does not show any cause of action.
6. Arguments heard. Record perused.
7. As far as the order of learned Additional Sessions Judge dated 2-3-2005 is concerned, both the parties had informed this court that in fact when allegedly the defendant cut the trees, the plaintiff moved an application before the learned Ex-Officio Justice of Peace for registration of criminal case against the defendant and said order was passed in the said petition directing the parties to approach the revenue authorities. If the learned Ex-Officio Justice of Peace instead of directing for registration of case had directed the parties to approach the revenue authorities, it does not mean that the plaintiff was estopped to file a civil suit protecting his possession. It, is settled law that if a co-sharer is in possession of specific property which is not beyond his share, he can protect his possession till the partition takes place in accordance with law.
8. 'In the present case it was yet to be determined that whether possession alleged by the plaintiff was in excess of his share or was within his share and so without determination of such share the plaint could not have been rejected under Order VII Rule 11, C.P.C. And so in view of said situation it can also be not said that the suit was not in a proper form. Even otherwise the application of Order VII Rule 11, C.P.C. Is not attracted merely on the ground that form of the suit is not D correct. The plaintiff has alleged that he along with his co-sharers was in possession of Shamlat land which is subject of dispute as co-sharer and so it can not be said that he had got no cause of action to file the suit E since he can retain the possession if found to be in possession within his share till the partition.
9. As far as the fact that he had not impleaded the other co-sharers, in my humble view on this account also Order VII Rule 11, C.P.C. Is not applicable. Under Order I Rule 10, C.P.C. The court has the power to order for impleading the party which appears to be necessary to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the suit and merely on this ground the plaint cannot be rejected under Order VII Rule 11, C.P.C. Learned counsel for the respondent has mainly placed reliance upon a case-law "Abdul Rehman v. Sher Zaman and others" (2004 CLC 134 SC (AJ&K). The facts of the said case are entirely different. However, the principle laid down in the said case was also that if the court comes to the conclusion after going through the record that the plaint does not disclose cause of action or a suit is barred by law, the court has the power to reject the plaint under Order VII Rule 11, C.P.C. However, as has been mentioned above that in the present case it can not be said that the plaintiff had no cause of action or the suit was barred by law and so both the courts below committed illegality by rejecting the plaint under Order VII, Rule 11, C.P.C.
10. The net result of above discussion is that this civil revision succeeds with the result that impugned orders of both the courts below whereby the plaint was rejected under Order VII Rule 11, C.P.C. Are set aside and case is remanded back to learned trial court to decide it afresh on merits.