' The facts relevant for the disposal of this appeal are that the appellant/plaintiff filed a suit on 28- 11-1991 in the Court of Senior Civil Judge, Bahawalpur for specific performance of agreement dated 16-9-1991 against the respondents and for a permanent injunction against the respondents restraining them from dispossessing the plaintiff from the suit property. Alongwith the suit the plaintiff filed an application for the grant of temporary injunction and the Civil Judge, Bahawalpur vide his order, dated 28-7-1992, accepted the plaintiff's application for the grant of temporary injunction restraining the respondents from dispossessing the plaintiff during the pendency of the suit. However, vide impugned judgment and decree, dated 16-5-1993, the Additional District Judge, Bahawalpur accepted the defendants/respondents' appeal and while rejecting the plaintiff's application for temporary injunction also rejected the plaint under Order 7, rule 11, C.P.C.
2. It is alleged in the plaint that plaintiff obtained a vacant plot on lease from the respondents in 1985 and with permission constructed Khokha (temporary shop) on it and is running the shop as a General Merchants, also selling cigarettes and cold drinks since then and he had spent about Rs,50,000 on the construction of the said shop and the goods lying in the shop are worth about 1,50,000 rupees. It is alleged in the plaint that the plaintiff is paying Rs,550 p.m. To the respondents as a rent for the plot underneath the shop and had extended his business on the assurance of the respondents that he will not be dispossessed. On 26-5-1990 the plaintiff received a notice from the respondents for the vacation of the suit property and the plaintiff challenged the legality of notice through a civil suit in which stay order was granted in his favour but ultimately the plaint was rejected on 18-5-1991 and its appeal is pending. During this period the plaintiff applied to the respondents for the allotment of a shop and flat on the plot in dispute and in this regard also offered to provide funds to the respondents on the condition that after the construction, the plaintiff will be allowed to retain the possession of the shop and plot as tenant. On the receipt of the plaintiff's application, the respondents passed a resolution in a formal meeting which was attended by the Chief Administrator,, Auqaf as well, in which it was decided that an estimate should` be made for the construction of a shop and flat and the estimated amount should be taken from the plaintiff and after the construction of shop and the flat over it, the same may be given to the plaintiff on rent and the plaintiff was allowed to deposit Rs,76,506 as the estimated costs of the construction of shop and a flat over it and it was mutually agreed between the parties that the above said amount paid by the plaintiff shall be treated as a goodwill money and when the tenancy will terminate, the same will be returned to the plaintiff. It is further alleged in the plaint that the abovesaid amount was paid by the plaintiff on 29-10-1990 through receipt No,90510 to the respondents/defendants and the defendants invited tenders for construction of shop and flat over it which were accepted in favour of the contractor and the Project Director vide his Memo. No,4588 directed the contractor to start the construction immediately and in this regard a formal agreement was entered into between the parties to the suit on 16-9-1991 and in this agreement also the defendants acknowledged the receipt of the construction costs from the plaintiff and the defendants agreed that after the Construction, the Shop No,15 and the flat over it situated in Jenazgah Bahawalpur will remain in possession of the plaintiff as a tenant. Prior to the agreement the defendants caused a delay in the construction of the shop and flat and on 1-8-1991 plaintiff gave an application to the Minister of Auqaf, Government of Punjab and the Administrator Auqaf, Bahawalpur Zone recommended the plaintiff's case on 25-8-1991 and later on Manager Auqaf issued a letter, dated 9-9-1991 containing the terms and conditions of the agreement and the final agreement was executed between the parties on 16-9-1991. Later on it is alleged that the defendants unilaterally cancelled the agreement vide letter, dated 10-10-1991, which led to the institution of the present suit. The trial Court accepted the plaintiff's application for the grant of temporary injunction which was filed in the suit on the ground that he had a good prima facie case in his favour and as he was in possession of the disputed property, the balance of convenience was also in his favour and the defendants-respondents had received a considerable amount from the plaintiff and had also issued a tender for the construction of the shop, and they will not suffer any irreparable loss. Being aggrieved thereby the defendants/respondents instituted an appeal and while accepting the respondent's appeal vide judgment and decree, dated 16-5-1993, the learned Additional District Judge Bahawalpur not only rejected the petitioner's application for the grant of temporary injunction but also rejected the plaint under Order 7, rule 11, C.P.C. Hence this first appeal.
3. I have heard the learned counsel for the parties and have also seen the record.
4. Learned counsel for the appellant contends that the learned Additional District Judge has exceeding his jurisdiction in rejecting the plaint on the material beyond the plaint itself and has discussed various documents without affording any opportunity to the plaintiff to produce evidence in support of his case and also without affording any opportunity to him to cross- examine the defendants' witnesses and also to challenge the documents relied upon by the defendants. Reliance is placed by him on Muhammad Salah v. Province of Sindh and others (1990 CLC 1543), Muhammad Saeed v. Mst. Nahid Shagufta and 3 others (PLD 1990 Lahore 467), wherein it has been held that in rejecting the plaint under Order 7, rule 11, C.P.C., the Court is obliged to travel only within the four corners of the plaint itself for discovering the non-existence of triable cause of action in it and the defence offered to it ought to be excluded from consideration. The learned counsel has also placed his reliance on Dost Muhammad and others v. Ghulam Nabi and others (1990 MLD 164 Karachi) wherein it has been held that for the purposes of considering an application under Order VII, rule 11, C.P.C. Whatever is stated in the plaint is to be taken as true and it is on that basis alone that the Court has to determine whether or not the plaint is liable to be rejected, for one or more of the reasons as set out in Order VII, rule 11, C.P.C., and the plaint cannot be thrown over-board solely on the basis of a possible or even probable defence. It is next argued by the learned counsel for the appellant that the lower appellate Court had no jurisdiction to reject the plaint because the subject-matter of the appeal before it was only the application of temporary injunction which had been accepted by the trial Court in plaintiff's favour and at the most the lower appellate Court could reject the plaintiff's application but could not reject the plaint itself.
5. On the other hand, the learned counsel for the respondents/defendants in support of the impugned judgment and decree has stated that the appellate Court as well as original Court can reject the plaint under Order 7, Rule 11, C.P.C., and has placed his reliance on University of the Punjab through Vice-Chancellor and another v. Malik Jehangir Khan (1994 MLD 452) wherein the revisional jurisdiction, the plaint was rejected under Order 7, rule 11, C.P.C. And Faqir Muhammad and 48 others v. Province of Punjab through Collector/Deputy Commissioner and 4 others (PLD 1993 Lahore 439) wherein the appeal was dismissed by the High Court on the ground that the appellants had left out their co-plaintiffs who were necessary party in the appeal and the memorandum of appeal was not accompanied by the judgment and decree. No other submission was made by the learned counsel for the respondents/defendants.
6. The bare reading of the impugned judgment shows that the Additional District Judge discussed various documents in accepting the respondent's appeal and in rejecting the plaint. The learned Court has held that defendant No, 1 vide his order, dated 10-10-1991 has cancelled the document dated 16-9-1991 and has concluded that thus the said agreement is not in existence. The plaintiff in his suit has challenged the order, dated 10-10-1991, in which the defendants cancelled the agreement dated 16-9-1991, on the ground that it is illegal and, therefore, the First Appellate Court acted illegally in treating the agreement between the parties to be non-existent on the basis of order, dated 10-10-1991, the legality of which is yet to be established by the trial Court and it has been done without giving any opportunity to the plaintiff to prove that the order, dated 10-10-1991, suffered from legal infirmity and was contrary to the lawful agreement arrived at between the parties. The judgment of the First Appellate Court is based on surmises and conjecture and it has illegally held that the agreement between the parties is not a valid agreement. This also amounts to non-suit the plaintiff without affording him an opportunity of proving the agreement through evidence especially in the circumstances when admittedly the large amount was received by the defendants/department from the plaintiff in consequence of the agreement and the learned Court has also misapplied the principle of caveat emptor without referring to any law or rule to establish that the authority executing the agreement on behalf of the defendants was not vested with a lawful authority to execute it. In fact the whole of the judgment shows that instead of discussing the plaint, the Lower Appellate Court discussed the defence pleas in rejecting the plaint which is an illegality. Learned counsel for the appellant in this regard has correctly placed his reliance on Dost Muhammad and others v. Ghulam Nabi and others (supra) wherein it has been held that plaint cannot be thrown over-board solely on the basis of a possible or even probable defence and the law laid down in the authorities cited by the learned counsel fo the appellant is that while considering an application under Order 7, rule 11, C.P.C. Or while affording the said provision for rejecting the plaint, the averments in the plaint are to be taken as true and it is on that basis alone that the Court has to determine whether or not the plaint is liable to be rejected. No other element can be introduced for rejecting the plaint because then it becomes a matter of investigation through evidence. Similarly in Muhammad Saeed v. Mst. Nahid Shagufta and 3 others (supra) a Division Bench of this Court has very explicitly held that while rejecting the plaint, the Court is obliged to travel only within the four corners of the plaint itself for discovering existence of a triable cause of action in it and the defence offered to it ought to be excluded from consideration. In Muhammad Saleh v. Province of Sindh and others (supra) the revision petition was accepted on the ground that Courts below had erred in rejecting plaint on material beyond the plaint itself. The abovementioned authorities relied upon by the learned counsel for the appellant, including the judgment of a Division Bench of this Court delivered in Muhammad Saeed v. Mst. Nahid Shagufta and 3 others (supra) show that the lower Appellate Court acted illegally in relying on the defence version and going beyond the plaint to reject the plaint under Order 7, Rule 11, C.P.C. The precedents cited by the learned counsel for the defendants are also of no help to him. University of the Punjab through Vice-Chancellor and another v. Malik Jehangir Khan (supra) is distinguishable on facts and is not applicable at all to the facts and legal issues involved in the present case. It was a suit for declaration, correction of date of birth with consequential relief for permanent mandatory injunction and after framing the issues, the parties led their evidence. The trial Court decreed the suit and the appeal was dismissed by the District Judge and in the defendants' revision petition the High Court came to the conclusion that Provincial Government was a necessary party and the plaintiff had failed to implead it as party in spite of an objection of the petitioners and that the plaintiff had not come to the Court with clean hands. This conclusion was arrived at after having discussed the entire evidence led by the parties and the revision petition was accepted and the plaint was rejected under Order 7, rule 11, C.P.C. Similarly Faqir Muhammad and 48 others v.
Province of Punjab through Collector/Deputy Commissioner and 4 others (supra) is also not applicable to the facts of the present case. In the said case the High Court correctly rejected the appeal on the ground that the memo. Of appeal was not accompanied by the impugned judgment and decree and that the co-plaintiffs were a necessary party and the appellant had failed to implead them.
7. In Ghulam Ali v. Asmat Ullah and another (1990 SCMR 1630), the Hon'ble Supreme Court held that assertions made in the plaint, had to be seen for purpose of determining whether plaint disclosed any cause of action. Averments in the plaint disclosed sufficient cause of action to proceed further with the suit. Lack of proof or weakness of proof in circumstances of case did not furnish any justification for coming to conclusion that there was no cause of action shown in the plaint and in such circumstances the Supreme Court did not agree with High Court for rejection of plaint and after setting aside the order restored the order of remand passed by the First Appellate Court.
8. The judgment and decree of the lower Appellate Court is liable to be rejected on a different ground also and i,e, that the subject-matter of appeal before it was only the grant or refusal of temporary injunction. The appellant's/plaintiff's application for the grant of temporary injunction had been accepted by the trial Court and aggrieved thereby the defendants filed an appeal during the pendency of the suit and, therefore, the scope of appeal was either its rejection or acceptance of appeal and rejection of plaintiff's application for the grant of temporary injunction and the Appellate Court had no jurisdiction to reject the plaint itself. Reliance in this connection can be placed on Gaman and others v. Province of Punjab and others (1989 MLD 4605) wherein it was held that the order of Appellate Court rejecting plaint in appeal against order dismissing application for grant of temporary injunction was unsustainable and unwarranted because the plaint of suit was not before the Appellate Court and the order of rejection of plaint was set aside and the case was remanded to the trial Court to try the suit in accordance with law. Similarly in Shandev v. Lehri Khan and 2 others (PLD 1983 Lahore 46), it was held that neither the appeal was against the judgment and decree passed in the suit, nor the suit itself was being tried by the District Judge and, therefore, District Judge could not make any order determining ultimate fate of suit. The District Judge in appeal was called upon simply to examine correctness or otherwise of trial Court's order allowing temporary injunction to petitioner as in the present case and, therefore, the District Judge had only the limited jurisdiction either to uphold, vacate, modify or give any direction relating thereto but could not dismiss the snit yet to be heard and decided by the trial Court. In Qazi Muhammad Tariq v. Hasin Jehan and 3 others (1993 SCMR 1949) it was held that dismissal of suit on a date which was not fixed for its hearing was not sustainable. In the said case the date was fixed not for hearing of suit but for hearing arguments on the application for temporary injunction and all that trial Court could do was dismissed the application for temporary injunction but could not proceed beyond that in dismissing suit as well.
9. In view of the above discussion, this appeal is accepted, the impugned judgment and decree dated 16-5-1993 of Additional District Judge, Bahawalpur is set aside and the case is remanded back to the District Judge, Bahawalpur with the direction that respondent's appeal against the trial Court's order, dated 28-7-1992, shall be deemed to be pending and the District Judge shall either himself decide the appeal or entrust it to some other Court of competent jurisdiction, other than the learned Judge who passed the impugned judgment and decree, and the appeal shall be decided afresh in accordance with law and in accordance with the above directions and observations made by this Court in this judgment. There is no order as to costs.