Muhammad Akram, petitioner, instituted a suit against the respondents in the Court of Civil Judge, Lahore, on 14-5-1979, challenging order of ejectment dated 25-7-1977, passed by the learned Rent Controller in favour of Mahmooda Begum, respondent No. 1, in respect of House No. 458-N, Samanabad, Lahore, occupied by the petitioner as tenant, on the ground that the order of ejectment was passed as a result of fraud practised by the respondents on the petitioner and the learned Rent Controller. It was alleged that the petitioner had never given his consent to vacate the rented house after one year nor had he entered into any compromise, with respondent No. 1 in that behalf. According to the petitioner, the respondents had obtained his signatures on a blank paper through misrepresentation. The petitioner also prayed for permanent injunction against the respondents restraining them from interfering with his possession of the rented house in pursuance of the impugned order which was void, illegal and ineffective. Alongwith the plaint, the petitioner also filed an application under Order XXXIX, rules 1 and 2 read with section 151, C. P. C. For issuing temporary injunction against the respondents restraining them from executing the order of ejectment against him. The respondents contested both the suit and the application for temporary injunction.
2. Learned Civil Judge, while disposing of the petitioner's application for temporary injunction, rejected his plaint on the ground that the peti--tioner's suit was barred by res judicata and the provisions of Order 11, rule 2, C. P. C. Inasmuch as he had failed to take up the plea of fraud in the earlier suit in which his plaint was rejected under Order VII, rule 11, C. P. C, The learned Civil Judge also found that the petitioner's suit was not maintain--able in view of section 47, C. P. C. And that the plaint filed by him did not disclose any cause of action.
3. An appeal was filed by the petitioner against the order of the learned Civil Judge, but the same was dismissed by the learned Additional District Judge vide order dated 22-4-1980.
4. Feeling aggrieved by the orders of the Courts below, the petitioner has filed the present Revision Petition.
5. Learned counsel for the petitioner has contended that the rejection of the petitioner's plaint by the learned Civil Judge is illegal inasmuch as the averments made in the plaint, which were not admitted by the respondents, did disclose a cause of action and that the petitioner's suit was not barred by res judicata or Order II, rule 2 and section 47, C. P. C. Learned Civil Judge should have disposed of the objections raised by the respondents after framing proper issues and affording opportunity to the parties to produce evidence in support of their respective contentions. Learned Civil Judge was not justified in rejecting the plaint while he was only considering the peti--tioner's application for temporary injunction.
6. Learned counsel for the respondents, on the other hand, has sub--mitted that the petitioner had not pleaded fraud as a ground for setting aside the order of ejectment in the earlier suit in which his plaint was rejected on 26-7-1978 and appeal against the order of rejection was dismissed on 4- 3-1979. The learned Civil Judge, therefore, rightly held that the petitioner's second suit was barred by law and that the plaint filed by him did not disclose a cause of action. According to the learned counsel, it was not incumbent on the learned Civil Judge to frame any issue before rejecting the petitioner's plaint and that the order of rejection of plaint cannot be challenged merely on the ground that it was passed by the learned Civil Judge while he was dealing with the petitioner's application for temporary injunction.
7. It appears from the order of rejection of plaint passed by the learned Civil Judge that the factual position of the preliminary objections raised by the respondents in their written statement was not examined by the learned Civil Judge as he ordered the rejection of the plaint on the assumption that the factum of the earlier suit filed by the petitioner and the averments made in the plaint in the said suit were admitted facts. The respondents had placed on the record photostat copies of the plaint and order dated 4-3-1979 passed by the learned Additional District Judge whereby order of rejection of plaint passed by the learned Civil Judge on 26-7-1978 was affirmed in appeal. The learned Civil Judge, relying on these documents, proceeded to discuss the petitioner's case on merits and rejected the petitioner's plea of fraud on the ground that he had not taken up such plea in his earlier suit. He found that the petitioner's suit was barred under the provisions of Order II, rule 2, C. P. C. And the principle of constructive res judicata.
8. It may be noticed that the power to reject a plaint under clause (e) of Order VII, rule 11, C. P. C. Is exercised by the Court if it is found from the statement in the plant that the suit is barred by any law. Where the Court has to form a view as to whether the suit is barred by any law, not merely from the statement made in the plaint, but on an objection raised by the defendant, the proper course in such a case is to frame an issue and call upon the parties to adduce evidence in support of their respective e contentions and if it is found that the suit is hit by any provision of law, pass an order dismissing the suit. An order of rejection of plaint under the provisions of Order VII, rule 11, C. P.
C. Would not be a proper order in such a case because the Court has not arrived at the conclusion that the suit is barred by any law after holding an enquiry into the matter and on an objection raised by the defendant. In case of rejection of plaint, the plaintiff is not precluded from presenting a fresh plaint in respect of the same cause of action in view of the provisions of Order VII, rule 13, C.
P. C. While in the case of dismissal of the suit he has no right to file a fresh suit based on the same cause of action.
9. 1n the instant case, the finding given by the learned Civil Judge that the suit instituted by the petitioner is barred under section 11, C. P. C. Entailed some enquiry because the petitioner had neither admitted the filing of the earlier suit nor the contents of the plaint filed by him in the said suit. There was no statement in his plaint referring to the earlier suit and it was only in the written statement that the respondents had made reference to it. The proper course which the learned Civil Judge should have followed was either to record the statement of the petitioner under Order X, rule 1, C. P. C. To ascertain whether he had instituted any such suit as was referred to in the written statement or to frame an issue and require. The parties to produce evidence in support of their contentions. Similarly, the question whether the petitioners' suit was barred under Order II, rule 2, C.
P. C., as in the earlier suit, he had failed to take up the plea of fraud while challenging the same order of ejectment which has now been impugned by him in the present suit could be determined -by the learned Civil Judge by following the above course. But the learned Civil Judge, as noticed above, proceeded on the assumption that the plea raised by the defendants in their written statement was not controverted by the petitioner which, however, was not correct. Petitioner's suit was also not barred under section 47, C. P. C. As the view taken by the learned Civil Judge does not appear to be based on correct appreciation of the provisions of that section because the petitioner had challenged the order of ejectment on the ground of fraud and the Court executing that order as a decree was not legally competent to go behind the said order in order to determine whether it was the result of any fraud, as alleged by the petitioners.
10. The provisions of clause (d) of Order VII, rule 11, C. P. C. Which empower the Court to reject a plaint in a case where the suit appears from the statement in the plaint to be barred by any law, were not applicable to the facts of the present case because, firstly, there was nothing in the plaint itself to show that the petitioners' suit was barred by any law and, secondly, the grounds on which the learned Civil Judge formed the view that the suit was barred by law were based on facts which were not admitted by the petitioners.
11. Clause (a) of Order VII, rule 11, C. P. C., under which a civil Court: is empowered to reject a plaint, where it does not disclose a cause of action, is not applicable to the facts of the present case, the petitioner had made averments in the plaint to show that the order of ejectment passed by the Rent Controller against him on 25-7-1977, was not based on compromise, as alleged by the respondents, because he had signed a blank paper on their assurance that they would withdraw their application for ejectment against him as he bad agreed to pay the monthly rent regularly after their undertaking that the expenses incurred by him in carrying out the repairs in the rented house would be paid to him by them. The respondents had controverted the above averments and, as such, it was necessary for the petitioner to prove these averments before he could get a relief in the suit instituted by him. Whether the petitioner would have been able to prove these averments at the trial or not, was not material because as these averments were not admitted by the respondents, the plaint filed by the petitioners did show a cause of action so as to take the case outside the purview of clause (a) of Order VII, rule 11, C. P. C.
12. As noticed above, the learned Civil Judge in the present case rejected the plaint while dealing with the petitioners' application for temporary injunction. It has been rightly contended by the learned counsel for the petitioners that the procedure followed by the learned Civil Judge was not proper, particularly, when the objections raised by the defendants in their written statement, which were taken into consideration by him, were not based on admitted facts.
13. For the foregoing reasons, I allow this Revision Petition and set aside the impugned orders of the Courts below. The case is remanded to the learned Civil Judge with a direction that the petitioners' suit shall be re-entered in the relevant register for its decision according to law. As the procedure followed by the learned Civil Judge in the disposal of the petitioners' application for temporary injunction was not proper, the learned Civil Judge shall decide the petitioners' application afresh after hearing the parties. In view of the peculiar circumstances of the case, the parties are left to bear their own costs.