1. ' SYED HAIDER ALI PIRZADA, J.---This is a High Court Appeal directed against the order of the learned Single Judge of this Court dated 1112-1990. The learned Single Judge by his aforesaid order accepted application (CMA 2741/90) under section 11 of the Code of Civil Procedure and Article 114 of Qanun-e-Shahadat, 1984. The material facts which are necessary for the disposal of this appeal stated in brief are as under:- ' The plaintiffs/appellants brought a suit for partition and separate possession against the defendants/respondents. The case of the appellants, as set out in the plaint, is that property viz. plot of land bearing Survey No, 57 measuring about 12,000 square yards was originally owned by two real brothers viz. Faqir Muhammad Durra Khan and Mian Khan Durra Khan which property was subsequently partitioned in two portions in Suit No, 112 of 1981 filed by late Abdul Ghaffar Khan son of Faqir Muhammad Durra Khan in this Court and the new number for such portions were allotted as 57/1 and 57/2. All the parties in the suit inherited their share from late Faqir Muhammad Durra Khan as per decree in Suit No,112/1981. They are joint owners of plot/land bearing No, 57/2. Late Faqir Muhammad Durra Khan has left behind one son and five daughters, viz. Abdul Ghaffar, Mst. Zulekha Bibi, Sharifa Bibi, Famita Bibi, Safoori Bibi and Aisha Bibi who all have since expired. The respondents Nos. 1, 2 and 3 are daughters of late Abdul Ghaffar Khan, the appellants are son and daughters of late Mst. Zulekha Bibi, respondents Nos. 6 to 11 are sons and daughters of late Mehboob Ali who was the son of Mst. Sharifa Bibi, respondents Nos. 12 to 14 are sons of Mst. Fatima Bibi, respondent No, 15 is the daughter of Safoori Bibi and the respondents Nos. 16 to 29 are inheriting their share from Mst.
2. Aisha Blbi.
3. ' It is their case that property of Plot No, 57/2 was further partitioned into different portions in execution of the compromise decree of Suit No,112/1981 and bearing No, 147 of 1984. The respondents Nos. 1, 2 and 8 are inheriting their share from their late father Abdul Ghaffar who died after passing the decree in Suit No, 112/1981 and a sub-divided Plot No, 57/2/15 measuring 1,554.63 square yards. This sub-divided plot has been ordered to be partitioned by this Court.
4. ' It is their further -case that as late Abdul Ghaffar had no male issue, therefore the respondents 'Nos. 1, 2 and 3 who are the daughters are only entitled to 2/3rd share in the property of their father in Plot No, 57/2/15 measuring 1,554.63 square yards and the balance 1/3rd share shall go to the real sisters of late Abdul Ghaffar and through them to the appellants and respondents Nos.4 to 29 as provided under the law. In para. 8 of the plaint, the appellants described the ratio of the shares of the parties to the suit.
5. ' It is their further case that all the appellants and respondents i.e. parties in this appeal/suit are enjoying possession of the earlier property of the Plot No, 57/2 which includes the sub-divided Plot No, 57/2 coming in the share of the late Abdul Ghaffar and the entire property of Plot No, 57/2 has not yet been physically demarcated by the City Survery Officer of the City Deputy Collector, Karachi as ordered by this Court.
6. ' It is their further case that after the decree in Suit No, 112/18, the appellants were apprehending the sale of the portion of the plot coming to the share of late Abdul Ghaffar who was insane and was being represented through his next friend the respondent No,1 . Therefore, the appellants got published a public notice in Daily Jang dated 22-10-1983 through their Advocate informing all concerned to restrain from dealing with the suit property till the property is finally partitioned, physically demarcated and mutated in the names of all co-sharers. The appellants have asked the respondents Nos.1, 2 and 3 to partition and restrain from selling or disposing of the suit property as the appellants and rest of the respondents have joint shares in the said suit property but the respondents Nos. 1, 2 and 3 have refused to partition and are bent upon to dispose off the said property including the shares of the appellants and rest of the respondents, illegally, dishonestly and with mala fide intentions.
7. ' On the basis, inter alia, of the aforesaid allegations, the plaintiffs instituted the suit for the reliefs mentioned above.
8. ' After receipt of the summons of the suit, the defendants/respondents Nos. 1, 2 and 3 entered appearance and made an application under section 11 C.P.C. read with section 114 of Qanun-c- Shahadat, 1984 read with section 151, C.P.C. praying for dismissals of the suit. The respondents also made another application under Order VII, Rule 11, C.P.C. praying for rejection of the plaint on two grounds that the plaint is barred by doctrine of res judicata and principle of estoppel.
9. ' The learned Single Judge, after considering the averments of the plaint and submissions made on behalf of the parties, rejected the plaint. The other application (C.M.A. No, 6125/85) was not pressed by the learned counsel appearing for the respondents 1, 2 and 3. It was held that it had become redundant. Hence this Nigh Court Appeal under section 3 of Law Reforms Ordinance, 1972.
10. ' Mr. Badrudduja Khan, learned counsel appearing on behalf of the appellants has assailed the impugned order and contended that the learned Single Judge should not have rejected the plaint on the above two grounds. In support of his contention that the suit is neither hit by the doctrine of res judicata nor is barred by the principle of estoppel, he has drawn our attention to the decisions reported in PLD 1980 Kar. 492, PLD 1981 Kar. 604 and 1988 CLC 1207.
11. ' On the other hand, Mr. Z.U. Ahmad, learned counsel appearing for the respondents Nos. 1, 2 and 3 has supported the impugned order. He submitted that the learned Single Judge has rightly rejected the plaint on the ground of doctrine of res judicata and principle of estoppel.
12. ' Mr. Akhtar Hussain, learned counsel appearing for the respondents Nos. 4 to 29 has supported the submissions of Mr. Badrudduja Khan.
13. ' We have given our earnest consideration to the contentions raised on behalf of the parties. We have carefully gone through the various cases to which our attention was invited by learned counsel on either side.
14. ' The appellants had filed a suit for partition and separate possession on 22-6-1989 against the respondents. Once this suit was instituted, summons were issued to all the defendants/respondents for settlement of issues. However, none of the defendants filed their defence by way of written statements. However, respondents 1, 2 and 3 by their application dated 16-5-1989 raised objections, to the mintainability of the suit on the grounds that the suit is hit by the doctrine of res judicata and principle of estopple and therefore the suit is liable to be dismissed at the threshold only. After hearing the parties, the learned Single Judge, as stated in the earlier part of this judgment, rejected the plaint. The respondents Nos. 1, 2 and 3 had also 'filed an application under Order VII, Rule 11(d), C.P.C. read with section 11, C.P.C. read with Article 114 of Oanun-e- Shahadat, 1984 seeking rejection of the plaint.
15. ' In the first instance, it must be mentioned that in spite of the summons being issued to the respondents for settlement of issues, no written statement was,filed by them and the so-called preliminary objection raised was by that application dated 16-5-1989.
16. It must be mentioned that filing piecemeal application raising objection, be it preliminary or otherwise, has to be deprecated. It may be possible that the defendants have many defences to raise and for that matter even in regard to the maintainability Of the suit itself. The law provides that it is for the defendants to raise all sorts of objections to the maintainability of the suit and meet the case by filing appropriate written statements. Based on pleadings of the parties, it is the duty of the trial Court to cast appropriate issues and if the Court is satisfied that there are preliminiary issues to be decided depending on the nature of issues, Order XIV of the Code of Civil Procedure would be attracted and the preliminary objections could be accordingly decided. Mr. Z.U. Ahmed, learned counsel for the respondents Nos. 1 to 3, in support of impugned order, however, contended that inasmuch as there is power under Order VII, Rule 11 of the Code to reject a plaint on grounds enumerated under (a) to (d), it is yet open to the trial Court to entertain an application from the defendants even before the defendants file their Written Statements and, therefore, there cannot be any objection for adopting this sort of procedure. He urges that once there is a power of rejection given to the Court and that too, even before any summons is issued to the defendant, such power can be yet used by the Court even after the summons are issued to the defendants and, therefore, there cannot be any complaint above the maintainability of an application by the defendants pointing out to the trial Court as to the ground on which a plaint is liable to be rejected.
17. Again in paragraph 9 of the plaint, the appellants have clearly averred that all the parties are enjoying possession of entire property of Plot No, 57/2 which includes the sub-divided Plot No, 57/2/15 coming in the share of late Abdul Ghaffar Khan and the entire property of Plot No, 57/2 has not yet been physically demarcated by the City Survey Officer as ordered by this Court.
18. ' However, it must be seen that in paragraph 12 of the plaint, the appellants have clearly averred that the plaintiffis/appellants have asked the defendants Nos. 1, 2 and 3 to partition and restrain from selling or disposing of the suit property as the plaintiffs and rest of the defendants have joint share in the said suit property but the defendants Nos. 1, 2 and 3 have refused to partition and are bent upon to dispose of the said suit property including the share of the plaintiffs and rest of the defendants illegally, dishonestly and with mala fide intentions. It is clear to us on going through the plaint that the Additional Registrar admitted the same and thereafter made an order for issue of summonses for settlement of issues to the defendants. Once the summonses are served on the defendants, all that is required of them is to file their written statements and there is no provision whatsoever in the Code which provides that a defendant can raise any objection to the maintainability of the suit by any application before filing his defence. From this, it is clear to us that the learned Single Judge did not exercise his powers mentioned under Rule 11 of Order VII of the Code but acted on the application dated 16th May 1989 of the defendants Nos. 1, 2 and 3. We also cannot ignore that there was a clear averment that all the parties in the suit are e joying possession of Plot No,57/2 which includes the sub-divided Plot No, 57/2/15 and the entire Plot No, 57/2 has not yet been physically demarcated by the City Survey Office of City Deputy Collector, Karachi as ordered by this Court. There was a clear averment that the plaintiffs have asked the defendants Nos. 1, 2 and 3 to partition and restrain from selling or disposing of the suit property as the plaintiffs and rest of the defendants have joint share in the suit property but the defendants Nos. 1, 2 and 3 have refused to partition and are bent upon to dispose of the same in accordance with the share of the plaintiffs and rest of the defendants illegally, dishonestly and with mala fide intention. The question as to whether that was hit by the doctrine of res judicata and plaintiffs are estopped by their conduct or not are issues which require no doubt to be gone into by the learned Single Judge but prima facie at that stage on the statements as they are contained in paragraphs 9 and 19 of the plaint, the trial Court could not have rejected the plaint under rule 11 of Order VII, C.P.C.
19. ' It is well-settled law that in order to reject a 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 ultimately succeed in establishing the allegations in the plaint cannot be a ground for rejecting plaint, under Order VII, Rule 11, C.P.C. From the averments made in the plaint, it is clear that the property in suit has not been physically demarcated and respondents Nos. 1, 2 and 3 were asked by the appellants for partition but they had refused to partition the property in the suit. The Court is not competent to look into the averments made in the application or documents filed by the defendants. The Court has to look into the averments made in the plaint. Faced with this situation, Mr. Z.U. Ahmed referred to the compromise application in the suit, the consent statement in the execution application and the orders passed thereon. By producing these documents, the appellants do not admit that the property in suit had been physically demarcated by the City Survy Officer. The object of the respondents Nos. 1, 2 and 3 was to show that the appellants have surrendered their shares and the property was duly demarcated. From the averments made in the plaint, it is clear that the property was not physically demarcated and the appellants and the rest of the respondents are in joint shares of the property in suit. Therefore at this stage on the statements/documents filed by the respondents 1, 2 and 3, it will not be proper to decide this question. If at this stage, on this plea, plaint is rejected, then it would amount to rejecting it on the basis of the averments made in the application and the documents annexed thereto and not the plaint itself. It will be open for the respondents 1, 2 and 3 to take these defences in the written statements and establish the same by evidence.
20. ' As we are not going into the merits of the case, it is not necessary for us to discuss the case-law cited before us namely Mst. Zainab Begum v. Muhammad Anis and 2 others 1986 MLD 2593, Muhammad Amin and 5 others v. Muhammad Latif 1987 CLC 2358, Muhammad Saeed v. Mst. Nahid Shagufta and 3 others PLD 1990 Lah. 467, Bahadur v. Muhammad Shoaib and 9 others PLD 1981 Kar.
21. 788, Mst. Safia Bibi v. Mst. Aisha Bibi 1982 SCMR 494, Sourendra Nath Mitra and others v. Tarubala Dasi AIR 1930 PC 158, Martin Casbin and others v. Peter J. Casbin AIR 1938 PC 103, Ma Kalema and another v. Ma Kyaing and others AIR 1941 Rangoon 103, Supdu Laxmanshet and others v. Soniram Ragho and others AIR 1945 Bombay 143, Palakurthi Appalaraju and others v. Tyla Yedukondalu and others AIR 1958 A P 713, Lal v. Siddiq and others PLD 1961 Lah. 823, M/s. Country Products v. M/s. Bawany Sugar Mills Ltd. PLD 1968 Kar. 115, Sh. Afzal Ahmed v. Ijaz Ahmed etc. PLD 1975 Lah. 464, Ali Mohataram Naqvi v. M/s. Cogefar Astaldi Sidmail PLD 1986 Kar. 574 and Qabul Khan v. Shah Nawaz and 2 others 1991 SCMR 1287, by learned counsel on either side.
22. ' Without going into the merits of this appeal, we, therefore, set aside the impugned order dated 11- 12-1990 and restore the Civil Suit No, 720 of 1989 on the file of the original side of this Court. The respondents are directed to file their written statements in the appellants' suit on a date to be fixed by the Additional Registrar (O.S.) and for this purpose the parties are directed to appear before the Additional Registrar (O.S.) on September 15, 1992 at 11-00 a.m. It shall be open to the respondents to raise the points of doctrine of res judicata, principle of estoppel and any other legal defence available to the respondents and they shall not be precluded from doing so. If and when the issues are raised, the learned Single Judge shall dispose of such issues in accordance with the established procedure. The appeal is, accordingly, allowed and the parties are left to bear their own costs.