' The petition is addressed against the order of learned District Judge, Mirpur, passed on November 30, 1991, whereby recording disagreement with the findings of the learned Sub-Judge, Mirpur dated October 18, 1989, the suit was restored and remanded to the trial Court for its disposal on merits.
2. The controversy raised in the petition emanates, from the proceedings in civil suit titled ' Sardar and others v. Sattar Muhammad and others', instituted in the Court of Sub-Judge, Mirpur, on July 30, 1988. Sardar and Jewan brought a suit for perpetual injunction to the effect that defendants Nos.2 and 3 may be restrained from raising construction in the shape of shops over a portion of Survey No,1684 and also prayed for possession of portion of aforesaid survey number, occupied by the defendants, by demolishing the superstructure. It was averred that the suit land was in the ownership and possession of the plaintiffs. Defendants Nos.2 and 3 raised shops over a portion of the land, without lawful authority and were taking steps to raise further shops. The plaint was accompanied by a copy of Jamabandi for the year 1980 81 and site plan signed by the Counsel.
Defendant No,1 contested the suit and in his written statement raised preliminary objection to the effect that the suit land was acquired vide an award made on July 30, 1967, as such the plaintiffs had no locus standi to bring the suit. It was further objected that Muhammad Ashraf and others brought a suit in respect of the same property on similar grounds, before the learned Additional Sub-Judge, as such both the suits could not proceed simultaneously. It was claimed that necessary parties were not impleaded and court-fee was not paid according to valuation of the subject of dispute. The learned Sub-Judge framed issues on July 29, 1989 and dismissed the suit vide the impugned order. On appeal before the learned District Judge, the finding of the learned Sub-Judge was reversed. The suit was restored and remanded for its decision on merits.
3. Kit. Ali Muhammad, the learned counsel for the petitioner contended that second suit was not maintainable by virtue of the provisions of section 11, C.P.C. It was further argued that the learned District Judge paid no attention to the controversy under consideration and reversed the impugned order on altogether flimsy and vague grounds. Raja Muhammad Siddique Khan, the learned counsel for the opposite side, supported the impugned order by reference to 1987 CLC 2461, PLD 1981 Kar. 604 and PLD 1978 Lahore 859.
4. A perusal of the record shows that the suit instituted by Muhammad Ashraf and others on June 27, 1988 was dismissed for want of cause of action. It is accepted that the plaintiffs in that suit claimed their title and possession in the suit land and prayed for issuance of decree for perpetual injunction and possession of portion of land, by removal of superstructure. An identical request was made in the subsequent suit titled "Sardar and Jewan v. Sattar Muhammad". It is also undenied that Sardar and Jewan, plaintiffs in the present suit, were arrayed as co-defendants in the previous suit. The suit of Muhammad Ashraf and others was dismissed on preliminary objection for absence of cause of action. No evidence was recorded in that case. Thus, the suit was dismissed without applying mind to the merits of the case. The decision recorded in the previous suit is not controverted at this stage. Therefore, propriety of the order passed in the previous suit warrants no comments of the Court.
5. In the present suit, the learned Sub-Judge recorded no evidence of the parties, in support of the issues raised out of the pleadings. Reference was made to the facts listed and documents appended with the pleadings of the parties and the suit was disposed of on a preliminary point relating to disclosure of cause of action in the plaint.
6. Kh. Ali Muhammad, the learned counsel for the petitioners emphasised that the learned District Judge failed to attend to the proposition under consideration in the true legal spirit and adverted to the irrelevant aspect of the case, by relying on flimsy reasons. It is correct that the learned District Judge, in his order, failed to confine to the point at issue. Nevertheless, the finding of the learned Sub-Judge is not sustainable. ~~Rule 11 of Order 7, C.P.C. postulates rejection of plaint in the cases, among others, where the plaint does not disclose a cause of action. The term "cause of action" has not been defined in the Code. It is construed as a bundle of facts alleged in the plaint which, when taken together, constitute cause of action.~~ In present case, the plaintiff-respondents categorically alleged possessory title in the suit land and proposed acts of the defendants in the shape of raising of construction. It was further alleged that a portion of the suit land was already encroached upon by raising shops. The encroachment was ascribed to the defendants. The relief was sought in the manner of decree for possession of the said portion where the shops were already raised and in the manner of perpetual injunction where encroachment was yet to the made, by raising shops.
7. ~~In order to ascertain disclosure of cause of action, it is enjoined upon the Court to confine to the plaint and nothing else. When defendant invites attention of the Court towards such a defect, the onus is on him to satisfy that the plaint discloses no cause of action. In such situation, the defendant must be taken to admit, for the sake of argument, that the allegations raised in the plaint are correct in manner and form. However, in doing so, the defendant reserves his right to show that those allegations were wholly or partially false in the next stages of action, provided the preliminary objection was overruled. Therefore, the power to reject a plaint under the rule, was exercisable only when the Court came to the conclusion that even if all the allegations were proved, the plaintiff would not get any relief, whatsoever. This proposition finds support from Syed Khadim All Shah's case PLD 1981 Kar.
604.~~
8. ~~In present case, as mentioned earlier, the learned Sub-Judge fell in error in rejecting the plaint on the basis of averments made in the written and documents appended thereby. The allegations made in the plaint alone were not taken into consideration to arrive at a correct conclusion that the plaint disclosed no cause of action. The approach of the learned Sub-Judge, was, therefore, derogatory to the established rules of procedure.~~
9. The other aspect of the proposition pertains to the rule of res judicata. It was argued that on dismissal of the previous suit, the suit under consideration was not maintainable by virtue of operation of principle of res judicata. The objection is not sustainable. ~~It is an accepted rule of law that the principle of res judicata is attracted only when the conditions laid down in section 11 of the Code are squarely satisfied. In present case, admittedly the suit was dismissed on the preliminary point relating to appearance of cause of action. Thus, the suit was dismissed on a technical ground and not on merits of the case. In such situation, the rule of res judicata was, of course, not applicable. This view finds support from Abu Bakar's case PLD 1977 Kar. 410 and Syed Inayat Ali Shah's case PLD 1978 Lah.
859.
10. In view of the aforesaid analysis, it is safe to hold that the order passed by the learned Sub- Judge resulting in rejection of the plaint, was bad in law. It could not be sustained. The order of remand of the case passed by the learned District Judge was correct in its conclusion. Therefore, the petition merits no consideration. It is dismissed. No order as to costs.