' This appeal is directed against the order of Additional District Judge, Karachi, dated 1-4-1978 whereby he accepted the appeal and rejected the plaint under Order VII, Rule 11, C.P.C.
2. That facts in brief are that the appellant filed a suit for declaration and permanent injunction stating therein that the plaintiff is the tenant of Fish Stall No,8, Jehangir Road, Karachi by virtue of allotment, dated 15-1-1960. The plaintiff deposited Rs,500 as security deposit and so long as the fish was supplied by the defendant No,1 plaintiff purchased 23 pounds fish from the Government agency. Within a year from the allotment the system of supply of fish by the defendant No,1 failed and thus the plaintiff/appellant started his own business of fish and goods according to his own choice. On 12-3-1975 the defendant No,2 sent a notice, dated 12-3-1975 to vacate the stall.
According to the plaintiff he is tenant of the defendant No,1 and cannot be ejected except under the provisions of West Pakistan Urban Rent Restriction Ordinance, 1959 (hereinafter referred tows the Ordinance VI of 1959). In the suit the plaintiff prayed that it be declared that he is tenant of the defendant No,1 in respect of property in dispute and permanent injunction be issued restraining the defendants from interfering with the possession of the plaintiff. The defendant filed written statement and it has been averred that the plaintiff was a mere licensee and not a tenant. The fish stall was constructed by the Government and after completion for a nominal licence fee it was given when the said stall was under the possession of the plaintiff. It appears that an application under Order XXXIX, Rules 1 and 2 was also filed praying for interim injunction. The interim relief was granted by the trial Court. Appeal against the said order was dismissed by the Appellate Court.
3. The defendants moved an application for rejection of the plaint under Order VII, Rule 11, C.P.C. On the ground that there is no cause of action against the defendants in the suit. That the suit is not maintainable as the Government has not been made a party in the suit and that the suit was barred by law. This application was rejected by the trial Court.
' The defendants being aggrieved against the order of the trial Court filed Revision Application under section 115, C.P.C. The learned Additional Sessions Judge by means of order, dated 1-4-1978 accepted the Revision Application and set aside the order of the trial Court and rejected the plaint under Order VII, Rule 11, C.P.C. It has been observed by the learned Additional District Judge that the licence of the respondent was cancelled by the competent authority and the appellant is being ejected under the provisions of the Central Government Lands and Building (Recovery of Possession) Ordinance, 1965 (hereinafter referred to as the Ordinance LIV of 1965). The jurisdiction of the Civil Judge is specifically barred under the provisions of sections 10 and 11 of the said Ordinance.
4. The appellant being aggrieved has challenged the order of the Additional Sessions Judge in this appeal. It is contended by the learned counsel that under section 10 of the Ordinance LIV of 1965 the jurisdiction of the Civil Judge is not barred. Section 10 provides that no civil Court shall pass an order in any suit or proceedings granting a temporary or interim injunction restraining the Central Government or any officer authorised by it from taking possession of any land or building under this Ordinance. Learned counsel for the appellant has made emphasis that only temporary or interim injunction is prohibited under section 10 of the Ordinance but the suit is not barred. This contention has sufficient force. Learned counsel has referred to the case reported in 1983 CLC 457 which lays down that section 10 of the Ordinance bars A only grant of temporary or interim injunction but does not oust the jurisdiction of civil Court for grant of permanent injunction. But in the present case the contention of the appellant as is clear from the plaint is that the plaintiff/appellant is the tenant of the defendant No,1 and he can only be ejected under the provisions of West Pakistan Urban Rent Restriction Ordinance, 1959. Learned counsel for the appellant has admitted that the appellant is merely a licensee and not a tenant. He has also admitted that the provisions of Ordinance VI of 1969 would not be applicable in the present case. In view of such admission the finding of the learned Additional District Judge that the provisions of Ordinance VI pf 1959 would not be attracted is not open to exception. According to section 3 of Ordinance VI of 1959, the provisions of said Ordinance shall not apply to buildings and rented land vested in the Central Government or the Provincial Government. Additionally the appellant is not tenant of the respondent, therefore, on this ground also Ordinance VI of 1959 would not apply.
Learned counsel however contended that under section 3 of the Ordinance LIV, of 1965 licence or lease can only be determined on the ground of breach of any covenant imposing prohibition on the lessee or licensee to give possession of the demised land or building required for any public purpose. But no such contention had been raised in the plaint. It is not the case of the appellant that the order of the defendant No,1 is male fide or that the premises in question is not required for public purpose. When these assertions have not been made in the plaint itself the appellant cannot urge this ground at this stage. The plaint Was rejected on the assertions made in the 'plaint and foreign material cannot be considered which require investigation and enquiry. The facts which have been raised by the plaintiff in the plaint do not require any adjudication. If the appellant had stated such facts in the plaint then the arguments would have some force but in the absence of any averment made in the plaint this legal objection cannot be considered. Learned counsel has again referred to 1983 CLC' 457 quoted above wherein it has been observed that the plaint containing allegation of mala fide cannot be rejected without framing issues and recording evidence. There is no cavil with this principle but the pleadings must be specific on the point. In the absence of any such contention the Courts are not required to give their finding on the extraneous t circumstances.
' The appeal has no substance and ,the same stands dismissed with no order as to costs.