' MUHAMMAD YOUNAS SURAKHVI, J.---This appeal, with the leave of the Court, is directed against the order recorded by the High Court on December 19, 1994, whereby, the appeal filed by the appellant, herein, against the order passed by Additional District Judge, Muzaffarabad on November 21, 1994 was dismissed.
2. The precise facts of the case are that the appellant-plaintiff filed a suit in the Court of Sub- Judge, Muzaffarabad against the Agricultural Development Bank, Muzaffarabad and others for declaration and perpetual injunction restraining the respondents from recovering allegedly an amount of Rs,17,000 from the plaintiff-appellant. It was averred in the plaint that the plaintiff- appellant in the year 1984 secured a loan of Rs,10,000 from the bank and repaid the same to the bank alongwith interest accrued therein through various instalments and thus in the year 1987 the whole liability came to an end as the same was repaid. It was also averred that in the year 1988 the plaintiff-appellant applied to the bank for securing a loan of Rs,42,000 and the loan was accordingly sanctioned; however, the appellant did not receive the aforesaid amount of loan for the reason that the defendant bank demanded certain documents alongwith the mutation of the land proposed to be mortgaged. As the Revenue officials did not sanction the latest mutation by cancelling the previous mutation so the appellant-plaintiff did not receive any amount of loan from the bank. The plaintiff-appellant sought a declaration from the Court alongwith the perpetual injunction that the plaintiff is not bound to return any amount to the defendants as he never secured any loan and the respondents be directed to refrain from demanding any amount of loan from the plaintiff and to initiate any proceedings for recovery of the amount. The suit was presented before the learned Sub-Judge, Muzaffarabd on January 28, 1991. On the same day an application for grant of interim injunction was also moved before the trial Court. The learned Sub- Judge issued notice to respondents who filed their objections on February 16, 1991. In their objections it was averred by respondents that an amount of Rs,11,340 is due from plaintiff which is liable to be recovered as arrears of land revenue and in view of provisions contained in section 172 of West Pakistan Land Revenue Act the Civil Court has no jurisdiction to entertain the suit. An objection was also raised that under Order VII, Rule 11, C.P.C. The suit is liable to be dismissed.
Alternatively it was asserted that under section 91 of the West Pakistan Land Revenue Act, without complying the conditions laid therein the suit was not competent. The respondents-defendants also averred that in order to evade the recovery of amount of Rs,11,340 the plaintiff did not come in the Court with clean hands and as such the application for interim injunction may be dismissed.
On February 20, 1991, arguments were heard on the application for interim injunction and the learned Sub-Judge vide his order dated February 23, 1991, in view of bar of jurisdiction, as provided under section 172, Land Revenue Act, dismissed the suit of the plaintiff-appellant under Order VII Rule 11 of C.P.C. And the application for grant of interim injunction was also dismissed. On appeal, initially taken to the Additional District Judge, Muzaffarabad, and ultimately to the High Court was also dismissed vide orders dated November 21, 1994, and December 19, 1994, respectively. Hence this appeal.
3. Ch. Muhammad Hussain, the learned counsel, appearing on behalf of appellant, vehemently contended that the suit of plaintiff-appellant was dismissed under Order VII, Rule 11, on account of bar of jurisdiction contained under section 172 of the Land Revenue Act, The learned counsel submitted that under Order VII, Rule 11 at the most the plaint could have been rejected, if it did not disclose any clause of action but the provisions contained therein, by no means empower the Court to dismiss the suit on account of non-disclosure of cause of action or in view of the bar of jurisdiction as provided under section 172 of the Land Revenue Act. The learned counsel emphasised that the suit instituted by the plaintiff-appellant and the averments made therein clearly empower the Civil Court to adjudicate upon the matter but instead of assuming the jurisdiction in accordance with the averments made in the plaint, the trial Court as well as the appellate Courts threw away the suit filed by the plaintiff. The learned counsel maintained that since plaintiff appellant did not secure any loan from the defendants and he was not declared a defaulter by a competent authority so his suit was entertainable by the Civil Court. The learned counsel also pressed into service the submission that in view of the prima facie case and the balance of convenience in his favour the plaintiff-appellant was entitled to get the relief of interim injunction, as prayed for, but the trial Court erred in dismissing the suit and the application for grant of stay order. The mistake committed by the trial Court was repeated by the appellate Courts including the High Court rendering the orders of all the Courts as invalid. The learned counsel for appellant relied on Abdul Latif v. The Government of West Pakistan and others (PLD 1962 SC 384), Ahmad Shafi Sheikh v. Municipal Committee, Rawalpindi (PLD 1971 Lahore 206), Syed lnayat Ali Shah v. Province of the Punjab (PLD 1978 Lahore 859).
4. On the other hand Mr. Ghulam Mustafa Mughal, the learned counsel for the respondents, controverted the arguments advanced by the learned counsel for the appellant and maintained that in view of provisions contained in section 172 of the Land Revenue Act the jurisdiction of Civil Court was clearly ousted. In the alternative it was contended by the learned counsel that in case the arrear of land revenue or any part thereof is denied by the plaintiff-appellant, it was enjoined upon him to deposit the disputed amount in accordance with the provisions of section 91 of the Land Revenue Act as a protest in the Court and then to have a resort to the Civil Court. The learned counsel pressed into service the submission that the plaintiff was being proceeded for recovery of the amount as arrear of land revenue so the suit filed by the plaintiff-appellant was rightly dismissed by the trial Court and the dismissal order upheld by the first appellate Court and the High Court calls for no interference by this Court. The learned counsel maintained that dismissal of the suit under Order VII, Rule 11 is open to no exception.
5. We have heard the learned counsel for the parties and perused the record made available with care.
6. To begin with, it may be pointed out that the trial Court dismissed the suit of the plaintiff- appellant under Order VII, Rule 11 along with application for grant of interim injunction. The order of dismissal was upheld by the learned Additional District Judge as well as the High Court. Order VII, Rule 11, C.P.C. Contemplates that plaint shall be rejected in the following four cases viz:-
(a) Where it does not disclose a cause of action;
(b) Where the relief claimed has been undervalued;
(c) Where the court-fees of full value have not been supplied, and
(d) Where the suit appears on the face of the plaint to be barred by any From the plain reading of the above Order and the Rule it becomes clear that these provisions deal with the powers of the Court to reject the plaint. The principals involved are two-fold; firstly it contemplates that a still born suit should properly be buried at its inception, so that no further time is consumed on fruitless litigation; secondly it gives the plaintiff a chance to retrace his steps at the earliest possible moment so that if permissible under ay found a properly constituted case. The rejection of plaint under Order VII, Rule 11 is clearly distinct than dismissal of the suit. The rejection of a plaint takes away the very basis of the suit, and the position is the same as if no suit was filed at all, the dismissal of a suit while recognising the existence of the suit undertakes its termination, so that in the former case the plaintiff would not under Rule 13 be precluded from filing a fresh plaint in respect of the same cause of action if he so desires. But in case of dismissal it would operate as a bar to any further suit on the same cause of action.
7. The expression "cause of action" used in the Code refers in general sense, and signifies averment of fact or state of facts, giving rise to a claim or right of the plaintiff against the defendant, sufficient to enable a Court to render a judgment or to grant relief. It excludes relief sought for and plea of defendant. It may mean facts or allegations, contemplating a claim or right and infringement of a right. In order to ascertain the cause of action, it is incumbent upon the Court to apply its mind to the averments of facts, made in the plaint and conclude as to whether presuming the averments to be true, it can grant a relief to the plaintiff or not. In case it is satisfied that on such presumption relief can be allowed, it shall not reject the plaint by invoking provisions of rule 11.
This proposition came under consideration before various Courts which upheld the aforesaid view.
8. In "Seven Stars Goods Transport Co. (Regd.), Karachi v. Administrator, Karachi Municipal Corporation, Karachi "(PLD 1976 Kar. 21) it was opined as under:- "It is an axiomatic principle of law that while considering the question of cause of action, the Court should apply its mind to the facts given in the plaint, and not to any other matter, and it has to presume that every allegation made in the plaint was true. It could therefore, reject the plaint, if it came to the conclusion that if all the allegations are proved, the plaintiff would not be entitled to any relief whatsoever, further, if there is any vagueness about the pleadings, the proper course is to order the party to remove the vagueness, and not to reject the plaint." )
' A similar view was expressed in the case of Mst. Resham Jan v. Muhammad Fazil and another (PLD 1981 Azad J&K 16) and Muhammad Fazil v. Mst. Resham Jan and another" (1983 CLC 1165). In case Pahloomal Motiram v. Abdul Quddus Behari and 8 others (PLD 1971 Kar. 250), it was observed that:- "The Court should reject the plaint under Order VII, Rule 11, C.P.C. Only if it came to the conclusion that even if all the allegations which were made in the plaint, were proved to be correct, the plaintiff would not be entitled to get a relief."
9. By now it is a settled law that for the purposes of determination whether the plaint discloses a cause of action or not the Court has to presume that every allegation made in the plaint is true.
Therefore, the power to reject the plaint under this rule must be exercised only if the Court comes to the conclusion that even if all the allegations are proved, the plaintiff would not be li entitled to any relief whatsoever. Besides it is also celebrated principle of law that where the plaint does not disclose a cause of action the Court should not reject the plaint but should allow an amendment of the same. In the case "Ahmed Hossein v. Mst. Chembelli and others" (AIR 1951 Cal. 262) the above- said principle has been enumerated in detail. In case reported as "Hari Dutt Prasad and another v.
Shib Kumar Jha" (AIR 1935 Patna 449) it was observed by Mr. Justice Muhammad Noor that "For the purpose of deciding whether the plaint discloses any cause of action, evidence of defendant is not necessary. Such question should be decided on the allegation of fact in the plaint and if necessary after examining the plaintiff. Similarly in the case reported as "National Development Finance Corporation v. M/s. Lipa Shoes Limited" (1991 MLD 474) it was observed that "expression cause of action does not include evidence appended with plaint or proposed to be adduced--Absence or presence of cause of action is to be decided from facts narrated in the plaint and not from written statement suit is based on agreement which was undenied even in application under Order VII, rule 11 of C.P.C. Grounds raised in support of alleged claim in plaint, prima facie, constitute a cause of action. Plaint was not liable to be rejected on this score."
10. From the survey of the case-law it becomes clear like crystal that for the purpose of determining a cause of action resort is to be made to the allegations of fact raised in the plaint and they are to be presumed as correct c and after presuming so if the Court comes to the conclusion that plaintiff would not be entitled to any relief whatsoever, the Court will be justified to reject a plaint. There is also ample authority to the proposition that the pleas raised in the written statement are not to be considered for the purposes of determining jurisdiction.
11. In the instant case no written statement has been filed by the defendant-respondents so far. As mentioned in the earlier part of the judgment, no doubt, there are objections filed by defendant- respondents in reply to the application for grant of interim injunction wherein certain pleas have been raised by the defendant-respondents with regard to the maintainability of the suit and against the grant of temporary injunction. As stated above it is wholly a wrong approach to decide a question of cause of action on the basis of pleas raised in the written statement and for that matter on the basis of objections filed by respondents on the application for grant of interim injunction. For the argument sake even if we do consider the objections raised by defendants, for the purpose of exclusion of jurisdiction of Civil Court, it has been asserted by the defendants that under section 172, Land Revenue Act the Civil Court has no jurisdiction to entertain the suit. Similarly it was averred that the suit was not maintainable because of the provisions contained in Order VII, Rule 11, C.P.C. And section 91 of the Land Revenue Act.
12. We have noticed that in the objections filed by the defendant-respondents it is not the case of the defendants that on account of amount due from plaintiff, the recovery proceedings have been initiated against him as an arrear of land revenue. No document to substantiate the claim of defendants has been attached alongwith the objections. Section 172 of the Land Revenue Act deals with the general exclusion of jurisdiction of Civil Courts in matter enumerated therein. Subsection
(2) (xvi) of section 172 provides that a Civil Court shall have no jurisdiction with regard to any claim to set aside, on any ground other than fraud, a sale for the recovery of an arrear of land revenue or any sum recoverable as an arrear of land revenue. Section 91, C.P.C. Provides that Civil Court shall have jurisdiction to try all suits of civil nature, excepting suits of which cognizance is either expressly or impliedly barred. The Civil Courts thus have pleanary jurisdiction in all matters mentioned in this section and their jurisdiction in any particular matter cannot be regarded as ousted unless the Legislature has in an unmistakable language taken away that jurisdiction. If the bar of jurisdiction of Civil Courts is pleaded it must firstly be established that the sum sought to be recovered is one recoverable as arrear of land revenue. It was for the defendants to substantiate that in fact any proceedings had been initiated against plaintiff for the recovery of the amount as an arrear of land revenue but as said earlier there is nothing on the record to substantiate the above assertion and to hold that jurisdiction of Civil Court is barred in the circumstances of the case. Section 91 of Land Revenue Act comes into play only when in fact the proceedings against a contesting party have been initiated for the recovery of amount as an arrear of land revenue. In that case it has been provided that the plaintiff has to deposit disputed amount F under protest and then to have a resort to the Civil Court. But in the instant case there is no such situation as postulated by the provisions contained in Section 91. In case titled "Ahmad Shall Sheikh v. Municipal Committee Rawalpindi" (PLD 1971 Lahore 206) it was held that "Since no proceedings had been taken against the plaintiff for recovery of sums as arrears of land revenue, he was not hit by the provisions of section 91 and this section was no bar to the institution of the suit".
13. In the present case it appears that all the Courts including the learned Judge in the High Court dismissed the suit of plaintiff either under clause (a) of Order VII, Rule 11 or clause of Rule 11. From our, reading of the plaint we are of corsidered view that keeping in view the principle enunciated in the earlier part of this judgment the plaint does disclose a cause of action and the suit does not appear to be barred by any law from the statement of facts made in the plaint. Keeping in view the pleadings of the parties and documents annexed by them we are of the opinion that facts stated in the plaint and even for that matter in the objections filed by defendant-respondents on application for interim injunction the suit of plaintiff-appellant is triable by a Civil Court, unless of course till such material is brought forth on the record which either expressly or impliedly bars the jurisdiction of the Civil Court. Under Order VII, Rule 11 as stated in the very beginning of this judgment if a plaint does not disclose a cause of action or where the suit appears from the.
Statement in the plaint to be barred by any law, the plaint at the most is to be rejected but it cannot be dismissed as has been done in the instant case. Besides a duty is cast upon the Court to ask the plaintiff to remove the vagueness in the plaint by way of amendment, in case there is any such vagueness. The Courts below as well as the learned Judge in the High Court, merely on the assumption, that the defendants are proceeding to recover the amount due from plaintiff as an arrear of land revenue dismissed the suit without any justifiable and concrete reason. This approach in our view is wholly illegal. It was enjoined upon the l9wer Courts and the learned Judge in the High Court to have kept in view the pleadings of the parties and then to come to a conclusion with regard to the question of jurisdiction of Civil Court. Again it is the requirement of law that before a person could be proceeded for recovery of the arrears of land revenue the authority concerned must first decide whether any such arrears are due or not and a finding to that effect must be given by the authority determining the arrears. The above view is fully supported by the case reported as "Syed Inayat All Shah v. Province of the Punjab" (PLD 1978 Lahore 859) which reads as under:-- "From an examination of the Act it is apparent that it provides first a procedure for determination of land revenue and then comes the machinery for realisation of such revenue. In Abdul Hamid Khan v. Government of West Pakistan and others (PLD 1969 Pesh. 324) it is held that it is therefore manifest that before the operation of the machinery section for realisation of the arrears, the authority concerned must decide whether there is an arrear due or not. The petitioner in his plaint had categorically stated that he was not heard before the demand was directed against him.
There is no procedure prescribed as to how the accounting party has to be heard in connection with the allegations made against him. The question for consideration is whether the authority to whom the function of determining the liability is entrusted has conducted the proceedings in accordance with the requirements of 'substantial justice'. In the circumstances, before rejection of the plaint, it was necessary for the trial Court to have seen whether the authority in the present case had done such substantial justice for determination of sum due before demanding it and directing coercive measures against the petitioner."
14. We have also noticed that the prayer of plaintiff for grant of interim injunction was rejected on account of material consideration in the mind of the Courts below and the learned Judge in the High Court that jurisdiction of a Civil Court is barred. For the grant or refusal of temporary injunction the cardinal principles to be looked into by the Courts are prima facie case, balance of convenience and a pronounced or manifest exposure of the aggrieved person to an irretrievable injury. We ourselves cannot pre-empt the job of trial Court so the matter of grant or refusal of interim injunction is left open to be decided by the trial Court in accordance with its discretion keeping in view the aforesaid guideline.
For the reasons stated above, we accept the appeal and set aside the impugned order of the High Court dated December 19, 1994, and orders of trial Court and the Additional District Judge, Muzaffarabad and remand the case to Sub-Judge, Muzaffarabad for proceeding afresh in accordance with law, with no order as to costs.