ABDUL HAMEED BALOCH, J.----Through this judgment I intend to dispose of above titled revision petition filed by the petitioners against the order and decree (impugned order and decree) dated 11th November , 2019 passed by learned Senior Civil Judge-IV , Quetta, (trial court), whereby the plaint of the petitioners/ plaintif fs was rejected under Order VII, Rule 11(a), C.P.C. and against order and decree dated 28th February , 2020 (impugned order and decree) passed by learned Additional District Judge-V , Quetta (appellate court) whereby the appeal filed by the petitioners/plaintif fs was also dismissed.
2. Concise facts of the case are that the petitioners/ plaintif fs filed amended suit for declaration, partition and permanent injunction against the respondents/ defendants before the trial court, in respect of the land consisting upon four godowns, showroom, twelve shops and open area in between as passage and easy excess to godowns, shops and showroom, boundaries whereof mentioned in para-3 of the plaint, with the following prayer: "a. Declaration be made that plaintiff's being descendants of late Wazir Muhammad are owners of land measuring 2 Rod 1/2 pole vide Mutation No. 3376 and Mutation No. 3466. b. Defendant No.1 1 be directed to hand over possession of 2 Rod 1/2 Pole to plaintiffs on spot. c. Any other relief, which this Hon'ble Court deems fit and appropriate may also be awarded, in the interest of justice."
Along with the plaint the petitioners/plaintif fs also filed an application under Order XXXIX, Rules 1 and 2, C.P.C. for maintaining status quo. The trial court granted status quo vide order dated 9th March, 2019.
3. The respondents/defendants Nos.1 to 8 contested the suit by filing written statement on legal as well as factual grounds and prayed for dismissal of the suit.
4. The respondents/defendants Nos. 1 to 8 filed application under Order VII, Rule 11, C.P.C., which was contested by the petitioners/ plaintif fs by filing rejoinder of the same. The learned trial court vide order dated 11th November , 2019 allowed the application and rejecte d the plaint under Order VII, Rule 11(a), C.P.C. The petitioners/plaintif fs being aggrieved of the impugned order preferred appeal before Additional District Judge-V , Quetta, who vide order dated 28th February , 2020 was pleased to dismiss the appeal and upheld the order of the trial court, hence the petitioners/plaintif fs are before this court.
5. The learned counsel for the petitioners/ plaintif fs contended that the courts below while passing the impugned orders and decree did not appreciate the facts of the case. The learned counsel for the petitioners/plaintif fs further stated that the trial court ordered for appointment of local commissioner . The petitioners/plaintif fs deposited diet money on order of the trial court, but did not obtain the report from the local commissioner . The courts below without looking into the merit of the case non-suited the petitioners/ plaintif fs on technicalities. The petitioners/plaintif fs have riot concealed any fact from the court.
6. The learned counsel for the respondents/ defendants Nos. 1 to 8 stated that the petitioners/plaintif fs have no cause of action against the respondents/defendants Nos. 1 to 8. They prayed for declaration and direction for handing over possession of 2 rod, 1/2 pole. The plaint did not clear from when the declaration was sought. When the suit is ambiguous, does not disclose cause of action, such suit cannot be maint ainable. It is principle df law that incompetent suit should be barred on inception.
7. Heard. Perused the record with the assistance of learned counsel for the parties. Under Order X, Rule 1, C.P.C. after first hearing of the suit the court shall ascertain from each party or his p leader whether admits or denies the allegation. The court during examination of the parties ascertained the fact from the parties. Where court found that the plaint is incompetent the proceeding under Order X, Rule 1, C.P.C. cannot be taken place. The trial court after examining the suit accepted the application of the petitioners/plaintif fs under Order XXXIX, Rules 1 and 2, C.P.C., meaning thereby that the trial court found the suit is competent, therefore, ordered for maintaining of status quo order .
8. The record further transpires that the petitioners/plaintif fs filed application under Rule 9 of Order XXVI, C.P.C. for appointment of local commissioner to ascertain whether the property in question fall under khasra No. 172. The learned trial court accepted the application, whereafter , the petitioners/plaintif fs deposited diet money but without obtaining the report accepted the application under Order VII, Rule 11, C.P.C. The court has to implement its order in letter and spirit.
9. The record transpires that the petitioners/ plaintif fs filed suit for declaration, partition and permanent injunction with the prayer as mentioned in para supra. The trial court rejected the plaint of the petitioners/plaintif fs under Order VII, Rule 11(a), C.P.C. The appeal was also dismissed by the appellate court. It would be appropriate to reproduce the relevant provision of law: "Rejection of plaint. The plaint shall be rejected in the following cases:-
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;
(c) whether the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff on being required by the Court to supply the requisite samp-paper within a time to be fixed by the Court, fails to do so; Where the suit appears from the statement in the plaint to be barred by any law ."
10. The plaint was rejected on the ground that same did not disclose cause of action. For determining whether the suit does not disclose cause of action, the court has to confine itself only to the averments of the plaint and has to presume the contents of plaint as true. The court which deciding the application under Order VII, Rule 11, C.P.C., cannot go beyond the same. Reliance is placed on the case of Hamid Ghani v. Muhammad Basit Siddique PLD 2010 Lahore 487 . It was held therein: "10. It is common ground between the parties that the evidence or the respondent has been recorded in the suit after framing of issues. In this regard the observation made by his lordship Saiduzzaman Siddiqui, J. in Jewan and 7 others v. Federation of Pakistan through Secretary Revenue, Islamabad and 2 others (1994 SCMR 826) may be referred to with advantage: "The rejection of plaint under Order VII, Rule 11, C.P.C. is contemplated at a stage when the Court has not recorded any evidence in suit. It is for this reason precisely , that the law permits consideration of only averments made in the plaint for the purpose of deciding whether the plaint should be rejected or not for failure to disclose cause of action or the suit being barred under some provision of law. 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. However , if there is some other material before the court apart from the plaint at that stage, which is admitted by the plaintiff, the same can also be looked into and taken into consideration by the court while rejecting the plaint under Order VII, Rule 11, C.P.C. Beyond that the court would not be entitled to take into consideration any other material produced on record unless the same is brought on record in accordance with the rules of evidence."
Further held in case of Peshawar High Court titled as Sanaullah v . Naik Muhammad, 2019 YLR 2699 : "7. It is now settled that for the purpose of rejection of plaint, only the avermen ts of the plaint and documents appended with the plaint are to be looked into and nothing else. In this context, reference may be made to the cases reported as Haji Allah Bakhsh v. Abdul Rehman and others (1995 SCMR 459) and Muhammad Saleem Ullah and others v. Additional District Judge, Gujranwala and others (PLD 2005 SC 511). Recital of the contents of the plaint, on the face of it, does disclose a cause of action and it is immaterial that the appellants would be able to prove it or not and at preliminary stage it is not permissible to reject the plaint without affording the appellants an opportunity to prove their case."
In view of above the impugned order and decree dated 11th November , 2019 passed by learned Senior Civil Judge-IV , Quetta, order and decree dated 28th February , 2020 passed by learned Additional District Judge-V , Quetta are set aside. The matter is remanded to the trial court with directio n to obtain report from local, commissioner and thereafter , proceed with the case according to law without influence to the observations made hereinabove. No orders as to cost.