ALI BAIG, J.----Through the instant civil revision petition, the petitioners/defendants have called in question the legality and validity of the impugned judgment/decree dated 24-6-19, passed by the learned District Judge Gilgit in C.F.A. No.26/19, whereby , the learned District Judge has accepted the appeal of present respondent No.1/plaintif f by setting aside the judgment/decree dated 05-04-2019 passed by the learned Civil Judge No.III Gilgit and suit of the respondent No.1 /plaintif f was remanded back to the learned trial court with the direction to dispose of the suit after framing issues and recording of evidence.
2. Succinctly facts of the case are that the present respondent No.1 / plaintif f (hereinafter called as respondent No.1) had instituted a suit in the trial court for declaration and perpetual injun ction and cancellation of some mutations of disputed land against the present petitioners / defendants (hereinafter called as petitioners) and respondents Nos.2 to 7 in the trial court.
3. The present petitioners contested the suit by filing their written statement in the trial court denying/ repudiating the averments of the plaint on many legal and factual grounds.
4. Along with the plaint, the respondent No.1 had filed an application under Order XXXIX, Rules 1 and 2, C.P.C. for grant of temporary injunction. The learned trial court while hearing the arguments on behalf of the parties on the aforesaid application has also rejected the plaint of the respondent No.1 under Order VII, Rule 11. C.P.C. holding that the respondent No.1 has not exhausted the relevant revenue forum which is mandatory vide judgment/order dated 30-04-2019.
5. The aforesaid judgment/order of the learned trial court was challenged before the court of learned District Judge Gilgit by respondent No.1 through Civil First Appeal which was allowed by the learned 1st appellate court vide the impugned judgment/order dated 24-06-20 19 and case of the respondent No.1 remanded to the learned trial court with the direction to decide the matter/suit after framing issues and recording of evidence.
6. Feeling aggrieved and dissatisfied from the impugned judgment/order passed by the learned 1st appellate court, the petitioners have preferred the instant civil revision petition in this Court.
7. The learned counsel for the petitioners has contended that the impugned judgment/order passed by the learned 1st appellate court is contrary to law and facts on the record of the case. The learned counsel for the petitioners has further contended that the respondent No.1 had failed to exhaust the revenue forum as matter is pertaining to cancellation of mutation which falls within the exclusive jurisdiction of revenue authorities, therefore, the learned trial court has rightly rejected plaint of the respondent No.1 under Order VII, Rule 11, C.P.C. The learned counsel for the petitioners has further argued that the learned 1st appellate court has wrongly accepted the Civil First Appeal of the respondent No.1 and remanded the case back to the trial court for decision afresh on merit after framing issues and recording of evidence, whereas, the learned trial court lacks jurisdiction to entertain the matter being revenue matter , therefore, the impugned judgment/order passed by the learned 1st appellate court may be set aside.
8. On the other hand, the learned counsel for the respondent No.1 has supported the impugned judgment/ order passed by the learned 1st appellate court by contending that neither the petitioners had filed an application under Order VII, Rule 11, C.P.C. nor the suit was fixed for hearing on the said application rather suit was fixed for arguments on the application under Order XXXIX, Rules 1 and 2, C.P.C. The learned trial court while hearing arguments on the application under Order XXXIX, Rules 1 and 2, C.P.C. has wrongly rejected the suit of respondent No.1. The learned counsel for the respondent No.1 has further contended that the learned trial court has ultimate jurisdiction to entertain and adjudicate upon the instant matter and the learned trial court has wrongly inferred / held that the respondent No.1 has not exhausted the revenue forum, therefore, the learned 1st appellate court has rightly set aside the judgment/order of the learned trial court which may be maintained in the interest of justice.
9. I have carefully considered the arguments advanced by the learned counsel for the parties and with their able assistance I have gone through the record.
10. It is case of the respondent No.1 that while deciding an application filed under Order XXXIX, Rules 1 and 2, C.P.C., plaint of the respondent Nd.1 was rejected by the learned trial court under Order VII, Rule 1 1, C.P .C.
11. It is settled law that plaint can be rejec ted under Order VII, Rule 11, C.P.C only while hearing arguments on the petition filed under Order XXXIX, Rules 1 and 2, C.P.C., if the plaint does not disclose a cause of action. In the instant case, the learned trial court has rejected the plaint discussing evidence and touching the merits of the case which is not permissible at the time of rejecting the plaint under Order VII, Rule 11, C.P.C. But when a plaint is rejected after commencement of the suit while deciding an application under Order XXXIX, Rules 1 and 2, C.P.C., the court acts at the back of the respondent No.1 as the same is then fixed for passing of an interlocutory order and not for determination of the question pertaining to maintainability of the suit. This is neither fair nor proper nor judicious. In this connection reference is made to the reported judgment of Lahore High Court 2003 MLD 109 .
12. The respondent No.1 has annexed an important document, i.e., a registered sale deed, and the learned trial court will examine the said document at the trial. Thus the learned trial court has committed material irregularity and illegality while rejecting the plaint under Order VII, Rule 11, C.P.C. at the time of hearing of arguments on the injunction application filed by the respondent No.1.
13. The learned 1st appellate court has rightly allowed the appeal of the responden t No.1 and remanded the suit to the trial court with the direction to decide the matter after framing of issues and recording of evidence of the parties.
The reasons advanced by the learned District Judge Gilgit are elaborate. No infirmity or illegality has been found in the impugned judgment to call for interference by this Court in its revisional jurisdiction.
14. Resultantly , there is no merit in this petition which is hereby dismissed and the impugned judgment passed by the learned 1st appellate court is upheld. Parties are left of bear their own costs.
15. Before parting with this judgment, the learned trial court is directed to dispo se of the suit of the petitioners expeditiously without af fording unnecessary adjournments to the parties. File.