1. ' SAEEDUZZAMAN SIDDIQUI, J.---The above appeal with the leave of this Court is filed by the appellants to call in question the orders passed by a learned Judge in Chambers of Lahore High Court, on 28-9-1991 and 11-12-1991 dismissing the Civil Revision Application and the Review Application respectively, filed by the appellants. Leave was granted in the case to consider the following contention of the appellants:- "The contention of the learned counsel for the petitioners is not without force. The order of the trial Court rejecting the plaint under Order VII, Rule 11, C.P.C. On the ground that the suit instituted by the plaintiff was mala fide and passed on concocted and distorted facts A was apparently outside the scope of the provisions of Order VII, Rule 11, C.P.C. As no evidence in the case was recorded and prima facie no material was available before the trial Court to record the above findings. We are accordingly, inclined to grant leave in the case to consider whether in the circumstances of the case the rejection of plaint under Order 7, Rule 11 was justified. "
2. ' The appellants instituted Civil Suit No, 195 of 1990 before the Civil Judge, Jhang for declaration of title. Alongwith the suit, the appellants also filed an application for grant of a temporary injunction to protect their possession over the land in suit. The trial Court while deciding the application for grant of temporary injunction rejected the plaint observing as follows:-- "7. I have come to the conclusion that the case of the plaintiffs/petitioners is absolutely mala fide, has been filed on the concocted and distorted fact. There is no document on file showing them to be occupancy tenants and as such owners. According to the statement of Jewan, it is since 1966 that the ownership stands in favour of defendant No,2. Not only this the plaintiffs are paying him the share of produce. Thus, the plaintiffs have no cause of action. For their failure before High Court in writ jurisdiction, their case is also barred under res judicata. Thus their plaint is rejected."
3. ' The appeal filed by the appellants against the above order of Civil, Judge before the Additional District Judge, Jhang, failed and the Civil Revision Application preferred before the High challenging the appellate order also met the same fate giving rise to the present appeal.
4. ' The learned counsel for the appellants contended before us that the rejection of plaint was based on considerations which were extraneous to the provision of Order VII, Rule 11, C.P.C.. It is also contended by the learned counsel that the learned Judge in Chambers took into consideration facts which were neither proved on record by any legal evidence nor admitted by the appellants and as such the order was not sustainable in law.
5. ' The learned counsel for the respondents on the other hand contended that the civil suit filed by the appellants was an abuse of the process of the Court as in the earlier round of litigation between the parties which ended with the dismissal of Writ Petition No,2080 of 1965 filed by the appellants, the appellants were unsuccessful to establish their title to the land. The learned counsel for the respondents relied on the decisions of this Court in the cases of Muhammad Akhtar v. Abdul Hach (1981 SCM R 878) and Nazeer Ahmad v. Ghulam Mehdi (1988 SCM R 824) which are also referred by the learned Judge in Chambers in the impugned judgment, to contend that the provisions of Order VII, Rule 11, C.P.C. Are not exhaustive and that the power to reject a plaint could be exercised by the Court apart from the provisions of Order VII, Rule 11, C.P.C. If the Court otherwise finds that the continuation of proceedings of the suit is nothing but an abuse of the power of the Court.
6. A plain reading of the Order VII, Rule 11, C.P.C. Would show that the rejection of plaint under this prevision of law is contemplated at a stage when the Court has not recorded any evidence in the suit. It is for this reason precisely, that the law permit consideration of only averments made in the plaint for the purpose of deciding whether the plaint should be rejected or not for failure to disclose cause of action or the suit being barred under some provision of law. The Court while taking action for rejection of plaint under Order VII, Rule 11, C.P.C. Cannot take into consideration pleas raised by the defendant in the suit in his decease, as at that stage the pleas raised by the defendants are only contentions in the proceedings unsupported by any evidence on record. However, if there is some other material before the Court apart from the plaint at that stage which is admitted by the plaintiff, the same can also be looked into and taken into consideration by the Court while rejecting the plaint under Order VII, Rule, 11 C.P.C.. Beyond that the Court would not be entitled to take into consideration any other material produced on record unless the same is brought on record in accordance with the rules of evidence. We may point out here that there is marked different between the scope of proceedings of an application under Order XXXIX, Rules 1 and 2, C.P.C., filed by the plaintiff for grant of temporary injunction in a pending proceeding and the rejection of the plaint under Order VII, Rule 11, C.P.C. On account of failure to disclose a cause of action in the plaint or the plaint being barred under some provision of law. In the former case, the Court while deciding the application for grant of temporary injunction ascertains existence or otherwise of a prima facie case, balance of convenience and the possibility of irreparable injury to the party seeking injunction in case the relief is withheld. While considering existence or otherwise of a prima facie case in proceedings under Order XXXIX, Rules 1 and 2, C.P.C., the Court is not only entitled to look into the pleadings of the plaintiff and documents filed by him in support of the case but it can also take into consideration the documents of pleadings filed by the defendant. However, the Courts while rejecting a plaint under Order VII, Rule 11, C.P.C., on the ground that the plaintiff failed to disclose any cause of action or the suit is barred under some provision of law, the extent of examination of relevant facts by the Court to reach these conclusions has to be only on the basis of averments made in the plaint and any other material or document which is admitted by the plaintiff. The reason for this different approach while rejecting a plaint under Order VII, Rule 11, C.P.C.
7. Is quite obvious. In the former proceedings (under Order XXXIX, Rules 1 and 2, C.P.C.) even if the Court reaches the conclusion that the plaintiff has failed to make out a prima facie case, it can only refuse to grant temporary injunction and reject the application under Order XXXIX, Rules 1 and 2, C.P.C. But this rejection cannot result in the dismissal of the suit which proceeds to trial notwithstanding a finding by the Court that the plaintiff has failed to make out a prima facie case for grant of temporary injunction. On the contrary, if the Court reaches the conclusion that the plaint failed to disclose any cause of action or suit appears to be barred under some law, the proceedings come to an end immediately and the plaintiff is non-suited before he is allowed an opportunity to lead evidence and substantiate his allegation made in the plaint. We are, therefore, of the view that the rejection of plaint at a preliminary stage when the plaintiff has not led any evidence in support of his case, is possible only if the Court reaches this conclusion on consideration of the statements contained in the plaint and other material available on record before the Court which the plaintiff admits as correct.
8. ' The learned counsel for the appellants has, however, contended before us that in view of the decision in the case of Muhammad Akhtar v. Abdul Hadi and Nazeer Ahmed v. Ghulam Mehdi (supra) the Couit while rejecting a plaint under Order VII, Rule 11, C.P.C. Can also take into consideration the pleadings of the defendants and the documents produced by him. We have carefully examined the above-cited cases which were the basis of impugned decision by the High Court and are of the view that no such law has been laid down by this Court in the aforesaid 2 cases. In Muhammad Akhtar v. Abdul Hadi (supra) this Court accepted the appeal against the order of the High Court which set aside the rejection of plaint under Order VII, Rule 11, C.P.C. By the lower Courts, on the ground that the High Court while setting aside the order of the lower Court rejecting the plaint under Order VII, Rule 11, C.P.C. Failed to take into account the order of this Court passed between the parties in the earlier litigation, wherein, the plea raised by the respondent in the subsequent suit was decided. It was also observed by this Court in the above case that the subsequent suit instituted by the respondent to challenge the earlier proceedings on the ground of fraud and misrepresentation and want of jurisdiction was barred in view of Section 12 (2), C.P.C. It will thus appear that from the very contents of the plaint, the suit was found to be barred under section 12 (2), C.P.C. And it was for this reason that this Court upheld rejection of the plaint by the trial Court and the first appellate Court and set aside the order of the High Court interfering with the order rejecting the plaint under Order VII, Rule 11, C.P.C. In the second case, Nazeer Ahmed v.
9. Ghulam Mehdi (supra) the suit instituted by the predecessor of the appellant in that case was dismissed under Order VII, Rule 11, C.P.C. By the trial Court on the ground that the evacuee status of the property was determined by the Custodian of Evacuee Properties and as such the suit was barred under Section 41 of the Pakistan Administration of Evacuee Properties Act, 1957. The contention of the appellant in that case was that with the repeal of the Pakistan Administration of Evacuee Properties Act, 1957, the bar contained under Section 41 of the said Act was no more applicable. This Court did not accept the above contention of the appellant and held that in spite of repeal of Act XII of 1957, the bar contained in Section 41 of the Act of 1957 continued to be applicable to the case and the subsequent suit instituted by the appellant after repeal of the Act of 1957 was barred under the law. In this case also the facts regarding status of the property and the earlier decision of the Custodian were discernible from the averments in the plaint and as such the order rejecting the plaint under Order VII, Rule 11, C.P.C. Was upheld by this Court. We are, therefore, of the view that in the above-referred cases though the observation was made by the Court that Order VII, Rule 11, C.P.C. Is not exhaustive of all situations but it did not lay down the law that the Court while rejecting the plaint under Order VII, Rule 11, C.P.C. Could take into consideration the plea of defendant though disputed and denied by the plaintiff. In the case before us, the trial Court dismissed the suit of the appellants after reaching the conclusion that the suit filed by them was mala fide and based on concocted and distorted facts. It was also observed that there was nothing on the record to show that the plaintiff was not an occupancy tenant of the land. The above fmding by the Court is not based on any evidence and was possibly taken from the averments made by the defendant in his pleadings which were still unsupported by any legal evidence on the record. Learned counsel for the respondents very vehemently urged that the statement of one of the appellant, Jewan, was recorded by the Court on 22-4-1990 which could be legally taken into consideration by the Court while rejecting the plaint under Order VII, Rule 11, C.P.C.
10. The trial Court in its order dated 20-11-1990 while dismissing application for grant of temporary injunction referred to the said statement of Jewan recorded on 22-4-1990 as follows:- "Worthwhile is the statement of Jewan, plaintiff/petitioner No,1 recorded by me on 22-4-1990. He was clear to say that the defendants have deprived them of their rights with the collusion of Patwari and mutation in their names have been cancelled. He was categorical that it is the defendant, who is taking produce of the land. He added that the possession of the plaintiffs, is confined to 26 Bighas, while the rest of the land has been disposed of by defendant No,
2. He also disclosed that Ehsan Hussain got mutation in his favour, sanctioned in 1966, and we are paying to him the share of produce since 1966. It is worth of mention that he said that they are paying them the share of produce voluntarily. This statement of Jeewan show nothing but that he is aware that mutation has been sanctioned in favour of Ehsan Hussain (defendant No, 2) since 1966, and for this reason they are voluntarily paying him the share of produce."
11. ' We fail to understand as to how the above statement made by Jewan was relevant for the purpose of rejecting the plaint on the ground that it failed to disclose any cause of action or that the suit instituted by him was mala fide and based on concocted facts. On the contrary the statement referred to above do show, and it is also admitted by the learned counsel for the respondents before us, that the appellants are tenants on the land in question and therefore they could not be dispossessed from there except in accordance with due process of law. The above statement of Jewan recorded by the trial Court on 22-4-1990 neither shows that the plaint had failed to disclose any cause of action nor it is sufficient to reach to the conclusion that the suit was barred on the principle of res judicata applied by the Court. With regard to the observation of the Courts below that there were earlier proceedings between the parties and therefore, the present suit instituted by the appellants was barred on the principle of the res judicata may only observe that the record of the earlier proceedings is to be brought before the Court on record in accordance with law and only then it is to be considered whether the controversy decided in the earlier proceedings is the same which is agitated by the appellants in the present suit. Until such time the documents relating to earlier proceedings were brought on record in accordance with law and the matter was thoroughly examined with regard to controversy in the two proceedings, it was not possible for the Courts below to reach the conclusion that the present suit involves the same controversy which was decided in the earlier proceedings. We, accordingly, allow this appeal, set aside the orders of the lower Courts rejecting the plaint under Order VII, Rule 11, C.P.C.. The case is remanded to the trial Court with the direction to dispose of the case in accordance with law. As it is not disputed before us, that the appellants are occupying the land as tenants, the parties will maintain status quo until disposal of the suit. There will no order as to costs in the circumstances of the case. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.
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