' The petitioner has challenged in this revision application the order of First Additional District Judge, Hyderabad, whereby he reversed the order of First Senior Civil Judge, Hyderabad, rejecting the plaint of respondent No, 4, under Order VII, rule II, C.P.C.
2. Respondent No, 4, had brought a suit for declaration and permanent injunction praying therein that the orders passed by respondents 2 and 3 are illegal and mala fide and the transfer documents issued to the petitioner on the basis of these orders be declared as illegal, void and not binding on the plaintiff. A permanent injunction was also sought seeking to restrain all the respondents from interfering with the possession and the alleged rights of the respondent No, 4, over the property in suit. The petitioner filed an application under Order VII, rule 11, C.P.C. In the above suit for rejection of the plaint on the grounds :
(1) That the plaint does not disclose any cause of action.
(2) The suit was barred under the provisions of Displaced Persons (Compensation and Rehabilitation) Act.
(3) That the suit was time barred, and that the prayer in the suit was hit by the principle of res judicata, ' The trial Court after hearing the parties accepted the application and rejected the plaint holding that the suit was hit by section 22 and section 25 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 and that the plaintiff is estopped under section 116 of the Evidence Act to challenge the title of the petitioner having accepted him as his landlord. On appeal the first Additional District Judge took the view that in view of the allegations of fraud, misrepresentation and mala fide the orders passed by the Settlement Authorities are not immune from attack in a Civil Court and as such the bar contained in sections 22 and 25 of D.P. Act is not applicable. With regard to the ground that the suit was barred on the principles of res judicata, the first appellate Court came to the conclusion that the judgment of this Court passed in Petition No, 343/ 1977 filed by respondent No, 4, did not deal with the allegation of fraud, misrepresentation or mala fides and as such the suit instituted by respondent No, 4 challenging the orders passed by the Settlement Authorities on these grounds was not hit by the principles of res judicata. Similarly, on the plea of estoppel raised by the petitioner the first appellate Court came to the conclusion that mere payment of rent or mere acceptance of petitioner by respondent No, 4, as the landlord of the premises did not create estoppel under section 116 of the Evidence Act.
4. I have head Mr. Akhtar Mahmood and Mr. Faiz Muhammad Soomro, the learned counsel for the petitioner and respondent No, 4, respectively, in this revision. The other respondents namely respondents Nos. 1 to 3 remained absent.
5. Mr. Akhtar Mahmood, the learned counsel for the petitioner has urged before me that on the basis of the averments made in the plaint no cause of action has been disclosed and even if all the allegations made in the plaint are taken to be true the plaint is barred under the provisions of section 22 read with section 25 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. It is also contended by the learned counsel that the suit is beyond time in view of Article 95 of the Limitation Act. On the other hand the learned counsel for respondent No, 4, has urged that if all the allegations in the plaint are accepted as true the plaint is not only within time but respondent No, 4, will be entitled to a decree in the suit. I have carefully considered the contentions raised by the learned counsel on either side. It is well-settled law that in order to reject plaint under Order VII, rule 11, C.P.C. The plaint must be shown to be barred under some law on the basis of the averments made in the plaint. The Court at that stage is neither entitled to look into the pleas raised by the defendant nor can examine the merits of the allegations made in the plaint. Every allegation made by the plaintiff in the plaint has to be accepted as correct while rejecting the plaint under Order VII, rule 11, C.P.C. The fact that the plaintiff may not ultimately succeed in establishing the allegations in the plaint cannot be a ground for rejecting a plaint under Order VII, rule 11, C.P.C. I have accordingly examined the contents of the plaint in Suit,No, 246/75, certified copy whereof is available on record of this revision, to find out if the plaint is barred under sections 22 and 25 of the Act XXVII of 1958. In paragraph 10 of the plaint which is subdivided into 10 sub-paras. The plaintiff has set forth in details the grounds of his attack on the orders of respondents Nos. 2 and 3 with regard to alleged fraud, misrepresentation and mala fides. It is alleged in one of the sub-paras. Of paragraph 10 that the order for transfer of the premises was obtained by filing documents which were forged and bogus.
' Many other specific allegations of fraud, misrepresentation and mala fides are also made in other sub-paras. Of paragraph 10 of the plaint. How far respondent No, 4 will succeed at the trial to substantiate these allegations is not to be considered by the Court at this stage. On the face of these allegations in the plaint it cannot be said that no particular of fraud, misrepresentation and mala fides are given in the plaint and jurisdiction of the Civil Court is barred to go into these allegations by reason of sections 22 and 25 of Act XXVII of 1958. Mr. Akhtar Mahmood, the learned counsel for the petitioner, has relied upon the case of Zafar-ul-Ahsan v. Republic of Pakistan (1), in support of his contention that the plaint in the suit filed by respondent No, 4 was barred under sections 22 and 25 of D.P. Act. The case cited by the learned counsel arose under Public Conduct (Scrutiny) Ordinance, 1959. Section 10 of the said Ordinance barred the jurisdiction of the Civil Court including the Supreme Court from scrutinizing the orders passed by the Scrutiny Committee. The learned Judge of the Supreme Court while considering the extent of the bar of section 10 on the powers of the Civil Court made following observation at page 120 of the report : "If a statute provides that an order made by an authority acting under it shall not be called in question in any Court, all that is necessary to oust the jurisdiction of the Courts is that the authority should have been constituted as required by the statute, the person proceeded against should be subject to the jurisdiction of the authority, the ground on which action is taken should be within the grounds stated by statute, and the order made should be such as could have been made under the statute. These conditions being satisfied, the ouster is complete even though in following the statutory procedure some omission or irregularity might have been committed by the authority. If an appellate authority is provided by the statute the omission or irregularity alleged will be a matter for that authority, and not, as rightly observed by the High Court, for a Court of Law. Of course where the proceedings are taken mala fide and the statute is used merely as a cloak to cover an act which in fact is not taken though it purports to have been taken under the statute, the order will not, in accordance with a long line of decisions in England and in this sub-continent, be treated as an order under the statute."
6, It will be seen from the aforesaid observation of the Supreme Court in the above case that in spite of complete ouster of jurisdiction of the Civil Court to examine the correctness and legality of the order passed by a functionary under the Ordinance, orders made in excess of jurisdiction and orders passed mala fidely will not be immune from attack in a Civil Court. The learned counsel for the petitioner next relied on the case of Mohomed Jamil Asghar v. Improvement Trust Rawalpindi (2). In this case the Supreme Court after examining the bar of sections 22 and 25 of the Displaced Persons (Compensation and Rehabilitation) Act, came to the conclusion that the findings given by the Settlement Authorities on a matter on which their own jurisdiction rested is not of a binding nature and will always be open to scrutiny before a Civil Court. It was further
(I) PLD 1960 SC 113 (2) PLD 1965 SC 698 ' held in that case that in so far mala fide orders are concerned the jurisdiction of the civil Court to examine them could never be taken away whatever may be the language employed or used in the statute in that regard. The learned counsel for the respondent No, 4 on the other hand has invited my attention to the case of Hamid Husain v. Government of West Pakistan and others (1) in which the Hon'ble Supreme Court while considering the bar of sections 22 and 25 of the Land Settlement Act, reached the following conclusion at page 359 of the report : "It is a well-established principle that even where the jurisdiction of civil Courts is barred and conferred upon special tribunals, civil Courts being Courts of ultimate jurisdiction will have the jurisdiction to examine the acts of such forums to see whether their acts are in accordance with law or are illegal or even mala fide."
7. The learned counsel for the respondent No, 4 also relied upon the case of Mst. Jehan Ara Begum v. Bashir Ahmed and others (2) and specifically referred to the following observation appearing at page 401 of the report : "In this view of the matter, the Settlement Commissioner was perfectly justified in holding that he had no power to cancel the P.T.D. On the ground of fraud and misrepresentation. In the circumstances of the present case, the proper remedy for respondent No, 1 is to challenge the P.T.D.
On the ground of fraud and misrepresentation before the civil Court, if so advised."
8. After considering the above case law I am in no doubt, that in spite of the bar contained in sections 22 and 25 of Act XXVIII of 1958 the order passed by the Settlement Authorities will be open to be scrutinized by a civil Court on the ground of fraud, misrepresentation and mala fides The plaintiff/respondent No, 4, having specifically pleaded in his plaint that the orders passed by respondents Nos. 2 and 3 were void orders and were passed mala fidely and were the result of misrepresentation, it cannot be argued that the jurisdiction of the civil Court to examine thes B allegations was barred by virtue of sections 22 and 25 of Act XXVIII of 1958. The fact that the petitioner will succeed or not at the trial or that he may not be able to substantiate these allegations at the trial are not relevant at the stage of consideration of the application for rejection of the plaint under Order VII, rule 11, C.P.C.
9. On the plea that the suit was barred by time the learned counsel for the petitioner contended that Article 95 of the Limitation Act provides a period of three years for setting aside a decree obtained by fraud or for other relief on the ground of fraud. It is urged by the learned counsel that according to statement contained in the plaint the first application filed by respondent No, 4 for transfer of property was rejected by the Settlement Authorities on 1st January, 1960 while the second application moved after the enforcement of Settlement Scheme No, VIII was rejected on 15th January, 1969. The suit was filed before the Civil Judge on 9th September, 1975. It is accordingly contended that the suit having been brought much after the expiry of period of three years from the date of transfer, it was barred by Article 95 of Limitation Act The learned
(1) 1974 SCM R 356 (2) 1975SCMR 401 ' counsel, however, overlooked that the starting point of Limitation under Article 95 of Limitation Act is the date when the fraud became known to the party wronged. In paragraph 7 of the plaint the respondent No, 4 c had categorically stated that he became aware of the alleged fraud, and misrepresentation in December, 1974 and in view of this specific averment in the plaint the suit as instituted on 9th September, 1975 is within time. The act that the averments made in the plaint are correct or not or that the respondent No, 4 will be able to substantiate these allegations at the trial cannot be gone into now. The learned counsel for the petitioner urged that the question of transfer of property in favour of petitioner was finally settled by order, dated 5th August 1974 passed by this Court in Petition No, 343/1970 and therefore, the suit instituted by respondent No, 4, should have been thrown out on the ground that it is hit by principle of res judicata. The plea raised by the learned counsel is in the nature of a defence in the suit and cannot be looked into while considering the application under Order VII, rule 11, C.P.C. The plea of res judicata will be open to be raised by the petitioner at the trial of the suit. Similarly the contention of the learned counsel that respondent No, 4 is estopped from denying the title of petitioner in view of section 116 of the Evidence Act, can also be considered only at the trial of the D suit and is not relevant at the stage of consideration of application under Order VII, rule 11, C.P.C. In this view of the matter the order of First Appellate Court neither suffers from any material irregularity nor is made in excess or failure of jurisdiction and as such I find no ground to interfere with the same. The revision petition is accordingly dismissed but there will be no order as to costs in the circumstances of the case.