Petitioner, a defendant in the suit filed by Mst. Najma Lakhwera, has filed this Constitutional petition to call in question the order of the Civil Judge dated 14-7-1991 dismissing her application for rejection of the plaint and also the order of the Additional District Judge dated 25-9-1991 dismissing her revision petition.
2. Mst. Najma Lakhwera, respondent No.1 filed a suit against the present petitioner and seven others including the Go, crnment of Pakistan for partition of an area measuring 6 Kanals 4 Marlas forming part of Bungalow No.74-Arif Jan Road, Lahore Cana., and for possession of 1/8th share of the disputed area after partitioning the same. She also sought permanent injunction restraining the petitioner (defendant No.1) from disposing of the area in dispute and also to restrain the Government of Pakistan, defendant No.8 from granting any permission to defendant No.1 for the disposal of the disputed area.
3. Case of the plaintiff as set out in the plaint (Annexure 'X) is that her previous husband late Lt.-Col. Mumtazudd;n Baqai was owner in possession of Bungalow No.74-Arif Jan Road, Lahore Cantt., and he also had a share in Bawa Mansion, Beadon Road, Lahore. The deceased was survived by a daughter (the present petitioner), a widow (plaintiff-respondent), two brothers and a sister.
Disputes arose amongst the legal heirs of the deceased about the properties left by him which were ultimately referred to Arbitration. Mr. Justice (Retd.) B. Z. Kaikaus acting as Umpire gave the award on 31-3-1971 which award was upheld by the Supreme Court of Pakistan on 24th July, 1977 and the case is reported as Mst. Shamim Akhtar v. Najma Baqai 1977 SCMR 409. In para 4 of the plaint is reproduced the relevant portion of the award which reads as follows:- "The total area of 74, Arif Jan Road, was originally 4.15 acres which would mean about 33 kanals and 2 marlas but out of this area, an area of 6 kanals and 14 marlas had been taken over by the Government and built upon during the 2nd World War. Admittedly this area has been in possession of the Government since the time of the 2nd World War. It is true that there is no formal order of its resumption but with respect to the unbuilt area the grantee had only revokable licence and when the Government took possession of some unbuilt area and built upon it the licence is deemed to have been revoked. It will, therefore, exclude that area from calculation, but I direct at the same time that in case the Government at any time decide to give that area to the heirs of Lt.-Col. Baqai or to transfer the superstructure, the heirs will have the benefits of the land and the superstructure in the share in which they are entitled to inherit the property of the deceased."
Plaint further proceeds to state that the Military Estate Officer, defendant No.8, illegally and wrongfully mutated the entire area of 74-Arif Jan Road i.e. 4.15 acres in the name of Mst. Shamim Akhtar in violation of the aforementioned award of the Umpire. It is further averred in para.6 of the plaint that the Government of Pakistan finally decided to give back the area measuring 6 Kanals 14 Marlas to the riglit-holders. Superstructure thereon was auctioned on 22nd December, 1979 which was purchased by the husband of Mst. Shamim Akhtar, defendant who instead of surrendering the disputed area to the heirs of Lt.-Col. Mumtazuddin Baqai occupied the whole of it herself. It is also alleged in the plaint that Mst.Shamim Akhtar, defendant applied for sub-division of 7,354 square yards in six plots and the Military Estate Officer, Lahore Cantt., processed the division and approval was accorded vide letter dated 20-6-1973. The old' grant is thus divisible with the approval of the Military Authorities. According to the plaintiff-respondent, she is a co-sharer in the area in dispute along with other legal heirs of Lt.-Col. Mumtazuddin Baqai and is, therefore, entitled to the possession of her share through partition.
4. Petitioner filed an, application under Order VII, rule 11, C.P.C. For rejection of the plaint on the following grounds:- (i)That the plaintiff had earlier filed a suit for permanent injunction on the same ground which she withdrew on 19-2-1990 and as such, fresh suit on the same ground is not maintainable.
(ii)That the suit for partition and injunction is not maintainable as the defendant-appellant was undisputedly in possession of the property in dispute since 1971.
(iii)That the suit is hopelessly time-barred.
(iv)That the plaintiff-respondent has no cause of action against the defendant-appellant as per her own plaint.
(v)That the plaintiff herself and her Arbitrator had asserted before the Umpire in the arbitration proceedings in 1971 that property No.74-- Arif Jan Road, Lahore Cantt., was indivisable and not capable of partition and ultimately this was the unanimous view of the Arbitrators and Umpire and, therefore, entire property No.74-Arif Jan Road, was transferred to the defendant-appellant. Plaintiff cannot, therefore, file the suit for partition and permanent injunction.
(vi)That the entire house property No.74-Arif Jan Road had been transferred to the pctitioner/defendant No.1 under the Arbitration Award which was made the rule of the Court and was upheld by the Supreme Court vide its judgment reported in 1977 SCMR 409.
(vii) That the plaintiff has not paid proper court-fee on the reliefs claimed by her for title and possession of the property in dispute.
5. The application moved by the petitioner was resisted by the plaintiff-- respondent on the ground, inter alia, that her earlier suit was withdrawn with the Court permission to file a fresh suit and that she was a co-sharer in the property, the subject-matter of the suit on the basis of the award given by the Umpire.
6. Learned trial Court dismissed the application of the petitioner holding that it was apparent from the averments made in the plaint that the parties were co-sharers in the property in dispute and it was so stated in the award. Plaintiff was, prima facie, a co-owner in the property, the subject- matter of the suit and, therefore, she had the cause of action to file the suit. As regards the petitioner's objections about the suit being timebarred and not maintainable, the learned Trial Court observed that it would be decided after recording evidence.
7. Petitioner assailed the order of the trial Court in a revision but with no better result as the same was dismissed by the learned Additional District Judge vide his judgment dated 25-9-1991 holding, inter a4 that the petitioner failed to show that the impugned order of trial Court suffered from excess of jurisdiction, want of jurisdiction, or any material irregularity in the exercise of jurisdiction warranting interference in revision. Hence this petition.
8. 1 have heard the learned counsel for the petitioner. He argued that it was wrongly held by the trial Court that the parties were co-sharers in the property in dispute. He submitted that according to the arbitration award given by the Umpire, all rights of Lt.-Col. Mumtazuddin Baqai, deceased in 74-Arif Jan Road, Lahore Cantt., belonged to the present petitioner. The learned Civil Judge misinterpreted the observations of the Umpire regarding the area in dispute. According to the learned counsel, the respondent-plaintiff and others had no share/entitlement in the property in dispute. It was further contended by the learned counsel that it was not appreciated by the Courts below that as per the award of the Umpire, Property No.74-Arif Jan Road was incapable of partition and was indivisible. It was thus argued that on the face of the plaint which was based on the award of the Umpire, the plaintiff-respondent neither had any cause of action nor could she bring the 'suit for partition. Learned counsel also assailed the maintainability of the suit by contending that since the property in dispute was in exclusive possession of the petitioner, plaintiffs suit for partition and injunction was not competent without making a further prayer for possession ' . Learned counsel also took an exception to the view taken by the Courts below that the question of limitation could only be decided after recording the evidence. He argued that the suit on the face of it was hopelessly time-barred and the plaint, therefore, merited rejection. He also sought to argue that the plaintiff-respondent having withdrawn the earlier suit for permanent injunction, her present suit on the same ground was not competent.
9. I have given my anxious consideration to the aforenoted contentions raised by the learned counsel. Submissions of the learned counsel appear to be based mainly on the award of the Umpire and his own interpretation thereof whereas law is fairly well-settled that for rejecting a plaint under Order 7. Rule 11, C.P.C. On the ground that it does not disclose a cause of action or the suit is otherwise barred by law, the Court is to confine itself only to the averments made in the plaint and nothing else can be looked into. The Court at this stage is not entitled to look into the grounds of defence raised by the defendant. In fact, the defendant must be taken to admit that the allegations made by the plaintiff are true in manner and form. If any authority is need for A this proposition, reference may be made to M. Moosa v. Mahomed and others PLD 1954 Sindh 70 wherein it was held that while considering the question of the existence or absence of cause of action, Court has to apply its mind to the facts given in the plaint and not to any other matter. It was also observed therein that in asking the Court to decide an issue as to the absence of cause of action, the defendant 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. Similar view was expressed in Din Muhammad v. Mehar Ali Khan PLD 1978 Kar. 267 wherein with reference to Order VII, rule 11(d), C.P.C., it was held that the clear mandate to the Court under the said rule is that the conclusion that a suit is barred by any law must be based on the statement in the plaint; i.e. The Court must apply its mind to the case of the plaintiff as set out in the body of the plaint as a whole by assuming all the averments made therein to be true in manner and form without taking into consideration the pleadings raised in defence of the suit. In the case of Zor Engineering Ltd. v. State Bank of Pakistan PLD 1980 Lahore 534 it was held that "it is an established principle of law that while considering the application of the provisions of clause (d) of rule 11, Order VII, C.P.C., the Courts are simply to examine the statement made in the plaint. This is what has been clearly said in the provisions of law. Under the law it is not permissible to base decision relating to rejection of plaint on the data and material supplied by the opposite party'. Viewed in this light, reference to the award of the Umpire except the portion thereof reproduced in the plaint is not permissible and the attention is to be focussed only on the averments made in the plaint for the purpose of deciding whether the plaint is liable to be rejected for any of the reasons enumerated in rule 11 of Order VII, C.P.C. Now going by the averments made in the plaint, it is quite clear that they do disclose a cause of action in so far as the plaintiff/respondent basing herself on a portion of the award of the Umpire reproduced in para. 4 of the plaint has alleged that the Government of Pakistan finally decided to give back the area in dispute measuring 6 Kanals 14 Marlas to the right-holders i.e. The legal heirs of Lt.-Col. Mumtaz-ud-Din Baqai. According to her allegations in the plaint, she claims' to be a co- sharer in the area in dispute along with other legal heirs of late Lt.-Col. Mumtaz-ud-- Din Baqai. She has further claimed that the area in dispute is divisible as according to her, the Military Estate Officer has already granted approval to the defendant/petitioner for sub-division of 7,354 square yards in six plots. Whether these assertions are correct or not and whether the plaintiff/respondent will be able to prove them or not is not relevant at this stage. The averments as made in the plaint quite clearly show that the plaintiff/respondent has a cause of action. The contents of the plaint also do not support the contention of the learned counsel for the petitioner that the suit on the face of it was time-barred. The learned Courts below have, therefore, rightly held that the question of limitation could only be decided after recording the evidence of the parties. Similarly, the objection of the petitioner that the suit in its present form is not maintainable has no substance. According to the averments made in the plaint, suit for possession through partition is clearly maintainable and the plaintiff/respondent, has sought the relief of possession through partition. As regards the petitioner s objection that since the plaintiff had withdrawn her earlier suit, the present suit is not competent on the same ground, suffice it to observe that the plaintiff has clearly stated in the plaint that the earlier suit was withdrawn with permission of the Court to file the fresh suit. This objection, too, is therefore, not, sustainable.
10. In view of what has been said above, the learned Courts below proceeded on correct premises, legal as also factual, in dismissing the. Petitioner's application for rejecting the plaint. The impugned orders of the Courts below are, therefore, not open to any exception in writ jurisdiction, as they are not shown to suffer from any illegality much less any jurisdictional defect. Writ petition has no merit and the same is accordingly dismissed in limine.
AA./S-78/L