This second appeal calls in question the judgment and decree, dated 2-4-1979 passed by learned Additional District Judge, Lahore.
2. The facts necessary for the purposes of this appeal, briefly stated, are that the deceased appellant Akbar Ali (now represented by his legal heirs Mat. Aisha Bibi and 11 others) instituted a suit in the Court of 'the learned Civil Judge, First Class, Lahore for a declaration to the effect that the plaintiff is. Entitled to exemption of the plot of land bearing No. 1, K Block, New Alamgir Market Scheme with a consequential relief that respon--dent No. 1 be directed to exempt or effect sale of the said plot in favour of the appellant in accordance with the Scheme of the said respondent.
3. The claim of the appellant was that the plot of land bearing No. E/1487, Inside Shah Alam Gate, Lahore was an evacuee property which was transferred to the deceased appellant, vide Transfer Order 75192, dated 13-7-1977 issued by the Deputy Settlement Commissioner, Lahore, and that since the plot aforementioned fell within the Scheme known as New Alamgir Market Scheme framed and promulgated by the Lahore Improve Trust (the predecessor of respondent No. 1) under the Development of Damaged Areas Act, 1952 (Act V of 1952), the appellant is entitled to the exemption of the said plot as per resolutions of the Board of Trustees of the Lahore Improvement Trust in that regard which inter alia includes resolution No. 32 dated 4-12-1963. The Lahore Development Authority, the successor of Lahore Improvement Trust allegedly by its inaction showed its reluctance to exempt the plot in favour of the deceased appellant who was allegedly later told by the officials of respondent No. 1 that no exemption would be made in his favour. He, therefore, filed the present suit on 21-1-1978.
4. Alongwith the suit,. The appellant filed an application under Order XXXIX, rules 1 and 2 and section 154, Civil Procedure Code praying for an interim injunction against respondent No. 1. This application was resisted by the said respondent No. 1.
4-A. It may also be observed here that respondents Nos. 2 to 4 applied to the learned Civil Judge for being impleaded as a party as they also laid a claim to the plot in. Question. The said application of the respondents was, however, rejected by the learned Civil Judge against which order a revision was taken to the learned Additional District Judge, Lahore which was allowed by order dated 2-d-1979 conditional.
5. While disposing of the. Aforesaid application of the appellant for temporary injunction, the learned trial Court, by its order dated 14-9-1978, also rejected the plaint, of the appellant under Order VII, rule 11, C. P. C. Holding that the petitioner has neither a cause of action nor locus standi to file the suit,
6. Feeling dissatisfied, the appellant preferred an appeal before the learned Additional District Judge which was also dismissed on 2-I-1979 vide the impugned judgment. Hence the present Second Appeal.
7. The learned counsel for the appellant contended that the rejection of the plaint by the learned trial Court as affirmed by the First Appellate Court is not warranted by law in that they took into consideration extraneous matters whilst the rejection of plaint could. Be ordered with reference to the averments in the plaint alone. The learned counsel in support of his above contention placed reliance on a decision of this Court in case Mahmud Ahmad Butt and another v. Lahore Development Authority and another (Civil Revision No. 799/D of 1980) a certified copy of which has been placed on record.
8. The learned counsel for the appellant next contended that the learned lower Appellate Court not only did not rectify the error committed by the trial Court but itself fell into further error in supporting the order of rejection of plaint by reference to an application of respondents Nos. 2 to 4 who were not even party before the trial Court at the time of rejection of the .Plaint.
9. Lastly, it was contended by the learned counsel for the appellant that as is apparent from the averments in the plaint, a cause of action had arisen to the appellant and as such there was no warrant for rejection of the plaint and that the suit could not have been decided without framing of issues.
10. On the other hand, the learned counsel. For respondent No. 1 only argued that he has no cavil with the proposition that tae plaint can -only be rejected by referring to the averments in the plaint alone .But rejection of the plaint in the case in hand was correct in that as held in Sh. Muhammad Sadiq v. Chief Settlement Commissioner and another (PLD 1963 Lah. 499), the property which had been acquired by the Lahore Improvement Trust for the purposes of a Scheme under the Punjab Development of Damaged Areas Act, 1-952 being not-a part of the compensation poll, could not be transferred, to the appellant who, thus, had no cruse 'of action for the suit.
11. The learned counsel for respondents Nos. 2 to 4 argued that the trial Court was justified in holding that no cause of action had arisen to the appellant for filing the suit as in paragraph 14 of the plaint itself the appellant has only submitted that respondent No: 1 is not taking action and he did not take the stand that the respondent has refused to give the relief which has been sought for in the plaint.
12. The only other contention raised .By the learned counsel for respondents Nos. 2 to 4 was that the, appellant, in fact, is prolonging his illegal possession on the plot of land in collusion with others by filing one suit after the other. He submitted that another suit pertaining to the same property has been filed by one Mst. Nawab Bibi against the Lahore, Development Authority claiming to be in possession of the disputed plot which is pending adjudication in the Court of Mr. Sher Zaheer Ahmad Khan, Civil Judge First Class, Lahore and that in case this appeal is accepted, the suit out of which this appeal has arisen should also be sent to that Court for expeditious disposal.
13. Having given consideration to the controversy involved, I am of the view that the rejection of the plaint in the, attendant circumstances of the case in hand is not warranted in law. It has been correctly pointed out by the learned counsel for the appellant as also conceded by the learned counsel for the respondents that while rejecting a plaint, reference could only be made to the averments in the plaint. The exceptional circumstances in A which reference could be made to the written statement r the verbal submissions of the opposite-party, do not exist in the case in' hand.
In the judgment cited by the learned counsel for the appellant (passed in Civil Revision No. 799/13 of 1980) in support of his contention, after examination of the case-law on the subject, it was held that for purposes of rejecting the plaint, the averments in the plaint are only to be taken into consideration and not the defence of the opposite-party. I respectfully agree with this conclusion.
14. A perusal of the plaint in the case in hand would show that it did disclose a cause of action. A reference in this regard to paragraphs 2 to 1.2 would abundantly show that a case disclosing a cause of action had been clearly made out by the appellant and the plaint, therefore, could not be rejected on the ground that it did not disclose any cause of action.
15. The objection raised on behalf of respondents Nos. 2 to 4 that paragraph 10 shows that the appellant as on the date of institution of suit had no cause of action, stands rebutted by the contents of paragraph 12 of the plaint.
16. It may also be pertinently observed that the trial Court, at the time of passing the impugned order of rejection of the plaint, had nothing else before it, except the plaint. Respondent No. 1 had neither filed written statement nor even a reply to the application for temporary injunction.
Respondents Nos. 2 to 4 were not even party before the trial Court as the application which has been made the basis of rejection of plaint by the learned First Appellate Court had been rejected by the trial Court.
17. In so far as the judgment of the First Appellate Court in upholding the trial Court's order and further supporting the same by reference to the application of respondents Nos. 2 to 4 for being impleaded as a party to the suit is concerned, suffice it to say is wholly misconceived. Any, reference to such an application for the purposes of rejection of the plaint cannot be justified on the plain language of Order VII, rule 11, C. P. C.
18. Before parting, one thing that needs-to be dealt with is the conten--tion raised on behalf of respondent No. 1 with reference to the decision of this Court in PLD 1963 Lah. 499. Such an objection may be a controversy for adjudication of the suit on merits but it cannot obviously be made the basis of upholding an order of rejection of plaint. The cited judgment was delivered on 7- 2-1963 but notwithstanding this judgment, the Lahore Improvement Trust which has been succeeded by the Lahore Develop--ment Authority in its resolution No. 32, dated 4-12-1963 acknowledged the transfers under the Displaced Persons (Compensation and Rehabili--tation Act) and decided to treat the transferees on the same basis as the other owners of the properties in the Schemes framed under the Development of Damaged Areas Act, 1952. The said resolution, therefore, did give a cause of action to the appellant and the cited judgment by itself could not be made the basis for upholding that the 3 appellant had no cause of action because the effect of that judgment appears to have been nullified by the respondent itself. This observation, however, will not prevent the respondents from taking any defence on the basis of the judgment of the High Court, cited above.
19. In view of the foregoing discussion, I would accept this appeal and setting aside the judgment and decree of the First Appellate Court dated 2-4-1979 as also the order of the trial Court dated 14- 9-1978, remit the case back to the trial Court for adjudication in accordance with law. There will, however, be no order as to costs. '
20. The request made on behalf of respondents Nos. 2 to 4 for a direction to entrust this case to the Court of Mr. Sher Zaheer Ahmad Khan, Civil Judge, First Class, Lahore in view of the pendency of another suit in that Court pertaining to the same property, appears to be reasonable. The case shall, therefore, be entrusted to Mr. Sher -Zaheer Ahmad Khan, Civil Judge First Class, Lahore and he shall ensure that this case is also disposed of expeditiously.