' This civil revision is directed against the judgment and' decree, dated the 9th October, 1979, passed by an Additional District Judge whereby he had dismissed an appeal filed by the petitioner, Mst. Zainab Jan. In that appeal, she had challenged the judgment and decree, dated the 15th July, 1979 of a Civil Judge by which he had dismissed her suit against the respondent, Abdul Rashid, on the ground that the plaint did not disclose any cause of action.
2. In the suit brought by the petitioner it was alleged by her that she was occupying certain premises as a tenant under the respondent but he wanted to throw her out of the premises by coercive measures. She, therefore, prayed for a permanent injunction restraining the respondent from ejecting her therefrom except in due course of law. Alongwith the suit, she made an application under rules I and 2 of Order XXXIX of the Code of Civil Procedute, for grant of temporary injunction to the above effect. This application was rejected by the learned Civil Judge by means of order, dated the 15th July, 1979. While so doing, the learned Civil Judge also observed that the petitioner had no cause of action and, therefore, her suit too was dismissed by the same order. On this, the petitioner went in appeal before the learned Additional District Judge but without success.
She has, therefore, come up in revision to this Court.
3. Learned counsel for the petitioner contended that while non-suiting the petitioner, the learned Civil Judge had gone into the merits of the case which he could not do without framing issues and recording the parties' evidence thereon. The argument proceeds that for the purpose of satisfying himself as to whether the plaint disclosed cause of action, he could not look at anything except the contents of the plaint. It was also submitted by the learned counsel that since the suit was still at a preliminary stage and issues were yet to be framed, the suit could not be dismissed by the learned trial Court. According to him, if the plaint did not disclose cause of action, the order which could be appropriately made by the said Court was of rejection of the plaint, under Order VII, rule 11 of the Code of Civil Procedure, and not of dismissal of the suit. In this connection, he drew my attention to Miss Suriya Bono v. Government of West Pakistan through Secretary for Education, Lahore and another (I).
4. On the contrary, it was urged by the learned counsel for the respondent that the petitioner had failed to make out a prima facie case inasmuch as she did not produce any document showing that she was {{FOOT NOTE}}
(1) PLD 1973 Lah. 572 {{FOOT NOTE}} occupying the disputed premises as a tenant under the respondent and, therefore, the learned Civil Judge was justified in refusing her the interim relief of temporary injunction and also dismissing her plaint for her not being clothed with a cause of action. He, however, did not cite any authority for the proposition put forth by him.
5. As for the plea of the learned counsel for the respondent that the petitioner had failed to make out a prima facie case I agree with him that she could not be granted temporary injunction if she had not been able to demonstrate that there was such a case in her favour. The failure of the petitioner in this behalf could be visited with the penalty of the rejection of her application for grant of temporary injunction but her suit could also not be thrown out on that score. As is evident from the provisions of Order VII, rule II of the Code of Civil Procedure, that for the purpose of rejecting a plaint under those provisions for-
(i) non-disclosure of cause of action,
(ii) the suit being time-barred,
(iii) the non-payment of requisite court-fee, or (vi) the suit being barred by any law. ' what is to be examined by the trial Court is the plaint only and nothing else. If the contents of the plaint are such as to furnish one of the said for grounds, enumerated in rule II, the trial Court can reject the plaint forthwith, but if the plaint, by itself, does not come within the mischief of rule lithe Court cannot reject it on the basis of any other material. In the case before me, the plaint as filed by the appellant, did disclose cause of action, and, therefore, it could not be rejected on the ground that there were no documents in support of the averments- made therein. This being the actual position the learned trial Court could not make an order of rejection of, the plaint much less an order of dismissal of the suit which could be passed only on any point touching the merits of the case. This view of mine is supported by the dictum in the case of Suriya Bano, relied upon by the learned counsel for the petitioner and the authorities reported as Mst. Bikees and others v. Ghana (1), Din Muhammad and 6 others v, Mehar Ali Khan and 2 others (2) and M. Moosa v. Mahmood and others (3).
6. In result, I hold that the judgment and decree of the learned Civil Judge by which the petitioner's suit was dismissed, and those of the learned Additional District Judge, whereby the judgment, and decree of the learned trial Court were upheld, suffer from an illegality. I, therefore, accept the civil revision with costs, set aside the aforesaid judgments and decrees and remand the case to the learned Civil Judge with the direction that he shall hear and decide it afresh in accordance with law. The parties are directed to appeal before the learned trial Court on 3rd March, 1980 for further proceedings. {{FOOT NOTE}}
(1) P L b 1980 Lab. 322 (2) PLD 1978 Kar. 267 (3) PLD 1954 Sind 70 {{FOOT NOTE}}