This revision petition is directed against judgment and decree dated 24-4-1993 passed by the learned Additional District Judge, Lahore through which appeal filed by the petitioners against order dated 27-6-1991 passed by learned trial Court through which the plaint of the suit filed by the petitioners was rejected under Order 7, Rule 11, C.P.C., has been dismissed.
2. In the plaint the petitioners alleged that they were the owners of the land mentioned therein through purchase from Muhammad Rafiq, therefore, any concession made by Muhammad Rafiq in respect of any part of the land purchased by the petitioners in the previous suit acknowledging that the same was part of Waqf having been dedicated to graveyard could not adversely affect their rights.
3. It may be stated that previously a suit was filed in respect of land including some part of land claimed by the petitioners as owner in which a plea was raised that the same was a Waqf land having been dedicated for grave--yard. In the said suit Muhammad Rafiq father of petitioner No. 2 as also the petitioners were impleaded as defendants. However, on 15-5-1990 Muhammad Rafiq through an agreement executed by him and the plaintiffs in the said suit acknowledged some part of the land being a Waqf land and appeared before the Court op 3-6-1990 and made concessional statement accordingly. The petitioners were not party to this agreement nor their statements were recorded. The suit was dismissed as withdrawn on the statement of learned counsel for the plaintiffs in the said suit as such no decree was passed against the defendants or in favour of the plaintiffs.
4. The plaint of the present suit filed by the petitioners challenging the legality of the said agreement has been rejected on the main ground that the grievance of the petitioners if any could be got redressed by approaching the same Court where the agreement was presented and concessional statement made by their predecessor-in-interest and no separate suit was maintainable. This finding has been upheld by the learned lower appellate Court.
5. In the plaint it was averred that the plaintiffs purchased the land from Muhammad Rafiq on 29- 9-1985 and 30-10-1985 whereas the said agreement was executed by Muhammad Rafiq on 15-5- 1990. The statement trade by Muhammad Rafiq in the Court in the said previous suit on 3-6-1990 was also in accordance with the said agreement and the suit was dismissed as withdrawn. It was prima facie not a case where the petitioners wanted that a decree passed by Civil Court against them or in favour of respondents in which he was also one of the defendants, be set aside. His case was that he was the owner of the land by way of purchase and the said agreement was executed by his predecessor-in-interest long after he had sold that land to the petitioners. It was not a case of rejection of plaint inasmuch as it was to be decided-by the Court after full trial of the suit as to whether the said agreement made by Muhammad Rafiq had any adverse effect on the petitioners' claim. Since no decree had been passed in the said previous suit against the petitioners nor they were party in the said agreement, as such it was to be decided after framing issues whether the present suit was not maintainable in view of the said statement and the agreement. The law is well settled that in order to determine whether the plaint did disclose cause of action the averments in the plaint are only to be taken into consideration and assessing the contents of the plaint in this suit on this touchstone it could not be held that the plaint did not disclose cause of action or that the suit was barred by any express provisions of law.
6. The two Courts below while passing the impugned order declined to exercise jurisdiction vested in them to entertain the suit as such it is a case where the Court has failed to exercise jurisdiction vested in it under the law.
7. For the foregoing reasons, the revision petition is accepted. The orders phssed by both the Courts below are set aside and the suit remanded for disposal on merits.
8. The parties are directed to appear before the learned trial Court (Successor of Mr. Zawar Ahmed learned Civil Judge who originally decided the suit) on 10-12-1993. The learned trial Court shall dispose of the suit before 31-7-1994 and report compliance.