' Dispute involved in this civil revision relates to certain evacuee land which was allotted and then confirmed in the name of one Sajjad Hussain. On the death of Sajjad Hussain, the land was transferred to his son, Ihsan Hussain, who is respondent No, 2 herein. Thereafter, respondent No, 2 made a gift of a part of the said land in favour of respondent No,3 'Mst.Kausar Firdus, who is his wife.
The petitioners, Jewan and others, filed a suit claiming title to the above land. It was alleged by them that they were entitled to be treated as owners of the land in question as they held it as occupancy tenants of the Central Government. According to them, it was by fraud that Sajjad Hussain got the land allotted and confirmed in his name. In the suit, the Federation of Pakistan was also impleaded as defendant No,1.
2. Alongwith the suit, the plaintiffs, Jewan and others, made an application for grant of temporary injunction. The application was opposed by respondents Nos. 2 and 3 by filing reply thereto. They also submitted written statement to resist the suit. In their reply to the application as well as in the written statement it was averred by respondents Nos.. 2 and 3, hereinafter referred to as the respondents, that when the disputed land was allotted to Sajjad Hussain by treating it as an evacuee property,. Petitioners Nos. 3 to 6, and Ahmed and Sultan, who have since died and are represented by petitioners Nos. 1, 2, 7 and 8, approached the Custodian of Evacuee Property in order to seek declaration to the effect that they were owners of the disputed land for being occupancy tenants thereof. Their plea did not find favour with the learned Custodian whereafter they filed a writ petition against his order but their writ petition did not meet with success.
According to the respondents, the disputed land had been confirmed in the name of Sajjad Hussain before the said Constitutional petition was dismissed.
3. In the suit brought by the petitioners, it was pleaded by the respondents that since question relating to status of the land in dispute and issue involving the plea of the petitioners and/or their predecessors-in-interest that they had become owners of the disputed land for being its occupancy tenants had attained finality on the dismissal of the writ petition, the suit could not proceed. Point canvassed by them was appreciated by the Civil Judge, who was seized of the suit, with the result that he not only dismissed their application for grant of temporary injunction but also rejected the plaint of their suit, under Order VII, Rule 11 of the Code of Civil Procedure. Petitioners went in appeal before an Additional District Judge but in vain. Hence this civil revision.
4. It was contended by learned counsel for the petitioners that for rejecting the plaint nothing except the contents of the plaint could be looked into and that the learned Civil Judge had committed an illegality in taking into consideration the defence of the respondents, which was based on the order of the learned Custodian and the judgment in the writ petition. It was maintained by him that all the four clauses of rule 11 of Order VII of the Code of Civil Procedure made a mention of the plaint and, therefore, only averments in the plaint could constitute ground for rejecting the plaint and nothing else could be taken into account for striking down the plaint.
Learned counsel for the petitioners relied on M. Moosa v. Mahomed and others (PLD 1954 Sindh 70); Karachi Development Authority through its Secretary v. Evacuee Trust Board through its Administrative Evacuee Trust Property at Karachi and 5 others (PLD 1984 Kar. 34), Messrs Haydari Construction Co. Ltd. v. Bank of Credit and Commerce International Overseas Limited and another [1991 CLC 149 (Karachi)], S. M. Faisal v. Additional Estate Officer [1989 CLC 2473 (Karachi)] and.
Muhammad Saeed v. Mst. Nahid Shagufta and 3 others (PLD 1990 Lah. 467) to support his argument that the Court could not go beyond the four corners of the plaint for rejecting it under Order VII, Rule 11 of the Code of Civil Procedure.
5. It was also submitted by learned counsel for the petitioners that the writ petition was not filed by the petitioners and/or their predecessors-ininterest and, therefore, the judgment in the writ petition could not be relied upon by the learned Civil Judge. It was, however, frankly conceded by learned counsel for the petitioners that when the matter was before the learned trial Court, it was not pointed out by the petitioners at any stage of the proceedings that the writ petition referred to above was not filed by them and/or their predecessors-in-interest. It was also added by him that copy of the order of the learned Custodian was not placed on record by the respondents by the time of the rejection of plaint.
6. In reply, it was urged by learned counsel for the respondents that law relating to rejection of plaint is no longer holding the field and, therefore, the authorities cited by learned counsel for the petitioners are of little help to him. In this connection, he invited my attention to Muhammad Akhtar etc. v. Abdul Hadi etc. (1981 SCMR 878); Nazeer Ahmed and others v. Ghulam Mehdi and others (1988 SCMR 824); Mian Muhammad Akram and others v. Muhammad Rafi [1989 CLC 15 (Lahore)]; Ghulam Sawar and others v. Mst. Sultan Bibi and others (1989 MLD 4873); Muhammad Saeed v. Mst.
Nahid Shagufta and 3 others (PLD 1990 Lahore 467); Muhammad Yasin Khan and 4 others v. Azad Government of Jammu and Kashmir through Chief Secretary and 3 others (1991 MLD 2295) and Mst. Shahnaz Begum v. Mst. Zulaikha Bibi and 5 others [1998 CLC 1526 (Lahore)].
7. While commenting on the other arguments addressed by learned counsel for the petitioners it was submitted by learned counsel for the respondents that the writ petition was filed by the petitioners and/or their predecessors-in-interest and that the petitioners were disowning it just for the purpose of avoiding its effect. It was also urged by him that copy of the order of the learned Custodian was on the record when the plaint in the petitioners' suit was rejected.
8. Before proceeding further, I would like to examine the cases of M. Moosa, Karachi Development Authority through its Secretary, Messrs Haydari Construction Co. Ltd., S.M. Faisal and Muhammad Saeed relied upon by learned counsel for the petitioners. In M. Moosa's case, a learned Judge of the former Chief Court of Sindh expressed the following view:- "In asking the Court to decide an issue like the present one the defendants must be taken to admit that for the sake of argument the allegations of the plaintiff in his plaint are true modo et forma--in manner and form. In considering the present question the written statement has also not to be taken into consideration. It is only the plaintiffs allegation which if accepted to be true must disclose that the plaintiff has a cause of action against the defendants. The question for my determination therefore is if the allegations in the plaint are correct modo et. Forma--in manner and form, is the plaintiff entitled to damages as claimed for."
' In was also held in the said case that the Court has, while considering the cause of action, to apply its mind to the facts given in the plaint and not to any other matter. In the case of Karachi Development Authority through its Secretary, it was ruled by a learned Judge of the High Court of Sindh that while deciding application under Order VII, Rule 11 of the Code of Civil Procedure, the Court has to look into the averments in the plaint and not to the averments made in the written statement or the documents filed by the defendants. In the case of Messrs Haydari Construction Co. Ltd., a learned Judge of the same High Court observed as follows:-- " that the plaint can be rejected only where a reading of the plaint makes it clear that no cause of action has been made out. For the purposes of employing Order VII, Rule 11(a), C.P.C., only the plaint is to be looked into and nothing else."
' In S.M. Faisal's case, another learned Judge of the Sindh High Court expressed the view that in order to examine the allegations mentiond in the plaint, every allegation made in the plaint has to be accepted as correct while rejecting a plaint, under Order VII, Rule 11 of the Code of Civil Procedure and that the plea raised in the nature of defence in the suit cannot be looked into while considering an application under Order VII, Rule 11. It was further observed by him that the fact that the plaintiff may not ultimately succeed in establishing the allegations made in the plaint cannot be a ground for rejecting the plaint, under Order VII, rule 11 of the Code of Civil Procedure. In Muhammad Saeed's case a learned Division Bench of this High Court has observed as follows:-- "No doubt, there is a bulk of case-law laying down that for ordering summary rejection of the plaint the Court is obliged to travel only within the four corners of the plaint itself for discovering existence of a triable cause of action in it and the defence offered to it ought to be excluded from consideration. But there is also another equally weightly and commendable view meriting serious consideration which says that classes of cases in which the Court can reject the plaint under Order VII, Rule 11 are not exhaustive of all the cases in which the Court can reject a plaint or limiting the inherent powers of the Court in respect therefor.
9. Now, I take up the cases of Muhammad Akhtar etc., Nazeer Ahmed and others, Mian Muhammad Akram and others, Ghulam Sarwar and others, Muhammad Saeed, Muhammad Yaseen Khan and 4 others and Mst. Shahnaz Begum on which reliance was placed by learned counsel for the respondents. In the case of Muhammad Akhtar etc., it was held by this Court that a plaint "could not be rejected under Order VII, Rule 11, C.P.C. If the pleadings in the plaint made out a justiciable case and that at that juncture a Court is not to attend to the defence or to the documents filed by the defence." This view was, however, not approved of by the Supreme Court with the observation "that Order VII, Rule 11, C.P.C. Is not exhaustive of all the situations in which a plaint can be rejected or a suit can be dismissed summarily". In the case of Nazeer Ahmad and others, material other than the contents of the plaint was taken into consideration for rejecting a plaint and the order passed in this regard was upheld by the Supreme Court. It was also ruled by the Supreme Court that "upsetting the order of Court below merely for the reason that the Court was not competent to look outside the averments made in the plaint would amount to merely pressing a technicality." In the case of Mian Muhammad Akram and others, a learned Judge of this Court followed the view expressed by the Supreme Court in the case of Muhammad Akhtar etc., and opined that the concept that the Court had to confine itself to the contents of the plaint and could not rely upon extraneous matters has undergone a change, in that even material produced in defence can also be kept in mind for rejecting a plaint." In the case of Ghulam Sarwar and others too it was held by a learned Judge of the Peshawar High Court that "in order to invoke Order VII, Rule 11, C.P.C. The emphasis that the Court had to confine itself to the contents of the plaint and could not look into the extraneous matters was misplaced because the concept has undergone a change, in that even the material produced in defence could also be kept in mind for rejecting a plaint."
Muhammad Saeed's case had already been dealt with inasmuch as it was relied upon by learned counsel for he petitioners also. In the case of Muhammad Yasin Khan and 4 others, the appellants filed a suit against the respondents for cancellation of some documents. The respondents made an application for rejection of plaint in the suit stating that an earlier suit brought by the appellants for the same purpose had been dismissed. The plaint was, therefore, rejected by a Sub-Judge and his decision was upheld by the High Court of Azad Jammu and Kashmir. While so doing, the said High Court observed as follows:- "The provisions of section 11 are mandatory and the moment the Court is apprised of the fact that subject-matter of dispute is earlier adjudicated by the competent Court between the same parties, the Court seizes to have jurisdiction, shall not try the suit and plaint shall be rejected as barred by law. The result would be the same even after the full-fledged trial."
' In the case of Mst. Shahnaz Begum, a learned Judge of this Court expressed the following opinion:- - "Order VII, Rule 11, C.P.C. Requires that an incompetent suit should be laid at rest the earliest moment so that no further time is wasted over what is bound to collapse as not being permitted by law. It was held in Burmah Eastern Ltd. v. Burmah Eastern Employees' Union and others PLD 1967 Dacca 190 that a suit may be specifically barred by law and, in such an event, the matter would come under the express terms of clause (d) of Rule 11 of Order VII of the Code. But, even in a case where a suit is not permitted by necessary implication of law in the sense that a positive prohibition can be spelt out of legal provisions, the Court has an inherent jurisdiction to reject the plaint. This really amounts to saying that Order VII, Rule 11 is not exhaustive."
10. As stated above, the view commended in the case of Muhammad Saeed, namely," classes of cases in which the Court can reject the plaint under Order VII, Rule 11 are not exhaustive of all the cases in which the Court, can reject a plaint or limiting the inherent powers of the Court in respect therefor" was expressed in the case of Burmah Eastern Ltd. v. Burmah Eastern Employees' Union and others (PLD 1967 Dacca 190) also as far as back in 1967 but, as has been seen above, despite that it was repeatedly held by the different High Courts of the country that nothing but contents of the plaint could be looked into for rejecting a plaint till the view expressed in the case of Burmah Eastern Ltd. Was, to some extent, approved of by the Supreme Court in 1981 in the case of Muhammad Akhtar etc. Even after the judgment of the Supreme Court in that case, it was held in the cases of Karachi Development Authority through its Secretary, Messrs Hardari Construction Co.
Ltd. And S.M. Faisal that for rejecting a plaint only the averments in the plaint were to be taken into account. View taken in the case of Burmah Eastern Ltd., has, however, been followed by the learned Judges. Of this Court in the case of Muhammad Saeed, Mian Muhammad Akram and others and Mst. Shahnaz Begum and by the Peshawar High Court in the case of Ghulam Sarwar and others, recently. Under Article 189 of the Constitution it is also my bounden duty to administer law as enunciated by the Supreme Court. I, therefore, with respect, act in terms of judgments of the Supreme Court in the case of Muhammad Akhtar etc. And Nazeer Ahmed and others, and, in supersession of any contrary view ever expressed by me earlier, hold that the Court can take into consideration material other than the contents of the plaint while considering the question of rejection of a plaint.
11. This brings me to the contention of learned counsel for the petitioners that the order of the learned Custodian, referred to above, was not on the record when the plaint was rejected. I have examined the file of the learned trial Court and find that the copy of the said order is a part thereof.
Thus, the plea of learned counsel for the petitioners stands belied by the record and is, accordingly, not accepted.
12. As stated earlier, it was also urged by learned counsel for the petitioners that the writ petition against the order of the learned Custodian was not filed by the petitioners and/or their predecessors-in-interest. Admittedly, this point was not canvassed before the learned trial Court and it was raised before the learned appellate Court, for the first time. This was, obviously, an afterthought. Also, nothing has so far been placed on the record by the petitioners to demonstrate that the writ petition was presented by some fictitious persons. I am, therefore, not impressed by the agrument of learned counsel for the petitioners that the writ petition was not submitted by the petitioners and/or their predecessors-in-interest.
13. In view of the above discussion, order relating to rejection of plaint is unexceptionable. This civil revision, therefore, fails and is dismissed with no order as to costs.