' GHULAM MUSTAFA MENGAL, J.--- This petition is directed against the judgment and decree dated 29th August, 2009 passed by the learned Civil Judge, Quetta in Civil Suit No,37 of 2008, as well as the order dated 20th May, 2010 passed by the learned Additional District Judge-IV, Quetta in Civil Revision Petition No,32 of 2009, whereby the suit filed by the petitioner was dismissed.
2. Facts of the case are that the respondent No,1 invited tenders for construction of a building at Samungli Road, Quetta and being qualified the petitioner was awarded the contract vide agreement dated 19th October, 1987 and accordingly the possession of the site was delivered to him on 24th September, 1988. Pursuant to the contract, petitioner had completed 80% work till 2nd September, 1992 and in the meanwhile the respondent No,1 got stopped the work on account of non- availability of funds. It was stated that from the beginning of the work i,e, 24th September, 1988 the petitioner had kept a watchman at the site to look after the two trucks, machinery and other equipments, which were dumped on there. It was stated that the petitioner had submitted running Bills Nos.17, 18, 19 dated 26th December, 1993, Bills Nos.18 and 19 regarding payment of outstanding amount. It has been stated that in between the night of 23rd/24th of February, 2008, respondents Nos.2 and 3 along with 4/5 guards came at the site and on the dint of force removed the two watchmen deputed by the petitioner. On 24th February, 2008 the petitioner reported the matter in Police Station Saddar, Quetta. On refusal to entertain the same, the petitioner vide application dated 26th February, 2008 approached the P.S. Bijli Road, Quetta. Lastly, the petitioner instituted a suit for restoration of the possession to him.
3. After registration of the suit notices were issued to the respondents and on 24th May, 2008 the respondents Nos.2 and 3 filed their joint written statement 'and case was fixed for arguments on legal objections. After hearing the learned counsel for the parties, the learned trial Court accepted the application under Order I. Rule 10, C.P.C. Filed by the respondents Nos.1 and 2 and stroked the name of defendant No,1 vide order dated 30th June, 2008.
4. Out of pleadings of the parties the learned trial Court on 23,rd July, 2008 framed the following issues;--
(I) Whether the suit of plaintiff is not maintainable in view of preliminarily legal objections 'A, B, C and D' raised by defendants No,2 and 3 in their written statement?
(2) Whether the plaintiff is entitled for restoration of possession of building with goods, machinery etc. Lying stored in the building as before?
(3) Whether the plaintiff is entitled for relief claimed for?
(4) Relief?
5. Thereafter, the case was fixed for arguments on legal issues and after hearing the learned counsel for the parties, the learned trial court rejected the plaint of the petitioner vide order dated 29th August, 2009.
6. The petitioner feeling himself aggrieved of the above said order filed an appeal before the District Judge, Quetta, who transferred the appeal to the file of learned Additional District Judge-IV, Quetta, who after hearing the learned counsel for the parties, dismissed the same vide order dated 20th May 2010, hence this Constitutional Petition.
7. The petitioner filed his written arguments. Mr. W.N. Kohli, learned counsel for the respondents defended the impugned orders passed by the Courts below and argued that the learned trial Court has rightly rejected the plaint of the petitioner as no case was made out against the respondent and upheld by the appellate Court. Both the orders of the Courts below suffer no illegality, as such, no interference is required in the concurrent findings of the Courts below.
8. We have perused the written arguments filed by the petitioner and heard the learned counsel for the respondents as well as perused the record of the case.
9. Perusal of the record shows that the learned trial Court has passed the impugned order in a very hasty manner, as after framing of issues no evidence had been adduced by either party. It is settled principle of law that cases should be decided on merits and in accordance with the law after recording pro and contra evidence of the parties and technicality should be avoided. In the instant case the petitioner claimed that he was in possession of the, disputed building and he has completed 80% work of the building till 2nd September, 1992 and work was stopped by the respondents on account of non-availability of funds and during the night of 23rd and 24th February, 2008 the respondents Nos.2 and 3 along with. 4/5 armed private guards came at the site and forcibly dispossessed the petitioner and in this regard he registered report to A police. Along with the plaint the petitioner has annexed bulk of documents. It was the case of respondents that the contract was superseded by another agreement dated 5th January, 1994 between the parties, whereby the entire matter was settled and petitioner was paid Rs,72, 45,978.67. In pursuance of clause 11 of the said agreement, the contractor handed over the possession of site to the owner of the plot. Both the Courts below have relied on the said agreement, but the same was not brought on record through evidence. We are of the opinion that in the case of controversial question of facts or law, the proper course for a Court is to decide the case on merits in the light of evidence and the departure of the same would amount to deprive a person from his legitimate right. In this regard we are fortified by the judgment reported in 1994 SCM R 826 (Jewan v. Federation of Pakistan), wherein it was held:--- "The Court while taking action for rejection of plaint under Order VII, Rule 11, C. P. C. Cannot take into consideration pleas raised by the defendant in the suit in his defence, as at that stage the pleas raised by the defendants are only contentions in the proceedings unsupported by any evidence on record."
10. Thus, in the circumstances of the case, the impugned orders dated 29th August, 2009 passed by learned Civil Judge-V. Quetta and order dated 20th. May, 2010 passed by learned Additional District Judge-IV, Quetta being not legal and proper, are set aside and the case is remanded back to the learned Civil Judge-V, Quetta for decision afresh on merit after recording the evidence of the parties and hearing the arguments of the learned counsel for the parties, with no order as to costs.