MEHBOOB ALI KHAN, J.---Employees' Old-Age Benefit Institution Government of Pakistan, through its Regional Head at Abbottabad lodged a suit before Senior Civil Judge and sued Mst. Shaista wife of Dr. Mohsan A.I Khan with few others and sought the grant of decree for possession of a certain bungalow (as detailed in the plaint) through the specific performance of a sale agreement dated 20-4-1992 entered by the plaintiff-Institution with the aforesaid defendants-respondents, i.e. Defendants Nos. 1 to 4 the suit who had agreed to sell the bungalow in question to the institution for Rs.2,80,000, but subsequently sold the property to defendants Nos.5 to 14 and got attested a mutation on 11-11-1993.
2. M/s. Jawaid Iqbal etc. Defendants who are present transferees of the bungalow mainly resisted the suit by filing a written statement before the Court on 23-11-1995, wherein they pleaded, inter alia, that the suit could not proceed as the plaintiff-Institution had already moved Collector, Land Acquisition. Abbottabad for compulsory requisition of the property and deposited also a sum of Rs.3,70,000 before the Collector as part of compensation price. Contesting defendants further stated that an application for eviction of the Institution from the premises was also moved by them before the Controller of Rents, Abbottabad Cantonment who by then were in occupation of the bungalow as tenants and requested that the plaint as it did not disclose a cause of action for the reasons aforesaid--may be rejected under Order 7, Rule 11, C.P.C.
3. The learned Senior Civil Judge, Abbottabad vide his judgment and order, dated 25-3-1996 after hearing the parties rejected the plaint as such by writing a very cursory order. He accepted the arguments that as Collector has already initiated proceedings at the behest of the plaintiff- Institution under Act I of 1894 for compulsory acquisition of the property in dispute, no suit could, therefore, proceed before the Civil Court.
4. Strangely enough, contrary to their own pleadings filed in civil suit before Senior Civil Judge, Abbottabad the contesting defendants Jawaid Iqbal etc. Subsequently move Commissioner, Hazara Division against the acquisition of the house in dispute for the plaintiff-Institution, who vide order, dated 26-2-1995 (Annexure R-1) passed the Acquisition (Deputy Commissioner), Abbottabad:-- "I feel that the exercise of powers under section 17 are not warranted. Besides, civil litigation at different forums is also in progress. Under humanitarian grounds as well as to meet the ends of natural justice it seems fit that the acquisition proceedings be held in abeyance till the decision of Civil Court, while the acquiring department may be advised to acquire less expensive land."
The learned Collector accordingly stooped proceedings in the case before it for the acquisition of the property. In the meanwhile, defendants aforesaid moved for the eviction of the Institution from the premises by moving an application before the Controller, Cantonment Abbottabad proceedings in which are in progress. Faced with such a situation, when plaint in the civil suit of the petitioners was rejected by Senior Civil Judge under Order 7, Rule 11, C.P.C. On the objection of the contesting respondents that proceedings for acquisition of the property were already taken in hand by the Collector at the request of the Institution under Act I of 1894 and the Collector stopped those proceedings at the request of the defendants, as a civil suit was pending before the Court of Senior Civil Judge, Abbottabad the petitioners were obliged to move this Court in Constitutional jurisdiction under Article 199 read with Article 203 of the Constitution of the Islamic Republic of Pakistan, 1973 with a prayer, that Controller may be refrained from taking proceedings in the eviction petition in view of the institution of Civil Suit No. 295/1 of 1995 by the petitioners before the Senior Civil Judge, Abbottabad by declaring further, that the Collector had no authority to stop proceedings in the land acquisition case before it and all those orders so passed may be set at naught by this Court having been passed without lawful authority and of no legal effect.
5. Beside having heard Syed Abdus Salam Sarwar, Advocate on behalf of the writ petitioners and Mr. Muhammad Tariq Khan Tanoli, Advocate for the contesting respondents we have also received written statement in the case on behalf of contesting respondents Jawaid Iqbal etc. Employees'
Old-Age Benefit Institution claims to have entered into some correspondence with Mst. Shaista Begum wife of Dr. Mohsan A.I Khan, Mst. Farzana wife of Lieut.-Col. Dr. Farrukh Siar and Mst. Shagufta Arzu wife of Dr. Muhammad Afzal Khan with regard to the purchase of Bungalow No.866, situated in village Jhangi on Mansehra Road, Abbottabad and according to their case the bargain was struck against sale consideration in the sum of Rs.2,80,000. The property was owned by Mst. Shaista Begum and her two sisters while Lieut.-Col. Farrukh Siar acted in transaction as attorney of the ladies being husband of Mst. Farzana. As the ladies did not afterwards fulfil the promise, the Institution in the year, 1993 was obliged to file a suit before the Court of Senior Civil Judge, Abbottabad. However, during the pendency of this suit the property was sold by the said Mst.
Shaista Begum etc. In favour of respondents Jawaid Iqbal etc. And they were later on impleaded in the civil suit of the Institution as defendants. This suit was waiting decision before the Court, when in the meanwhile, at the request of the plaintiff-Institution Collector, Land Acquisition, Abbottabad started proceedings for compulsory acquisition of the house under Act I of 1894 against respondents Jawaid Iqbal etc. On this development respondents aforesaid moved an application before the Senior Civil Judge, Abbottabad that as Collector had already proceeded against them for compulsory acquisition of the property under the Act ibid, the Institution did not have, therefore, any cause of action in the civil suit filed for specific performance of the contract of sale and requested the Court for rejecting the plaint, in the circumstances, under Order 7, Rule 11, C.P.C. The learned Senior Civil Judge acceded to their request and ultimately rejected the plaint, under Order 7, Rule 11, C.P.C., vide judgment and order, dated 25-3-1995. By then the Collector had caused publication of preliminary notification under section 4 of Act I of 1894 for the proposed acquisition of the property in question for public purpose. But the same defendants after some time moved an application before the Commissioner, Hazara Division and caused the stoppage of acquisition proceedings by the Collector by an order passed by the Commissioner on their application on 26- 2-1995. The Commissioner was of the view that the exercise of powers under section 17 of the Act were not warranted. Besides, he also took into notice civil litigation pending between the parties over the property by that time. In compliance with the said order of the Commissioner the Collector afterwards put off his hands from the acquisition proceedings of the property and adjourned the case sine die. But strangely enough, this order had already been passed when Senior Civil Judge, Abbottabad rejected plaint in the civil suit on 25-3-1996 under Order 7, Rule 11, C.P.C.
6. As it seems the Senior Civil Judge did not apply his mind and disposed of the case by rejecting the plaint in a cursory manner. It was vehemently contested, that the petitioners if aggrieved could have assailed this order in appeal before the District Judge. It is true that an order passed under Order 7 Rule 11, C.P.C. By virtue of section 2 (2) has been termed a "decree" and made appealable, but by not appealing against that order before the District Court the petitioners could not be afterwards debarred from assailing it in a Constitutional petition before this Court in very peculiar circumstances of the case. They were in fact neither heard before the Civil Court in their suit for specific performance because of the proceedings of compulsory acquisition of the land initiated .At their request before the Collector under Act I of 1894, nor before the Collector because of the pendency of their suit before the Senior Civil Judge, Abbottabad and both the forums thus refused to hear them on one pretext or another. The Senior Civil Judge rejected plaint in their suit because the matter was pending before the Collector under special jurisdiction and the Collector stopped proceedings in the acquisition case because a suit was pending at the instance of the petitioners before the Civil Court with regard to the possession of the property through a decree for specific performance.
7. The respondents in fact played a double standard game. When at their own application Collector stopped further proceedings for compulsory acquisition of the property, the contesting respondents could not get plaint rejected in the civil suit before the Senior Civil Judge under Order 7, Rule 11, C.P.C. Being estopped totally to plead a contrary cause before the said forum. Not only this the same respondents immediately thereafter filed an eviction petition before the Controller of Rents, Abbottabad Cantonment and prayed for the dispossession of the petitioners from the premises which they were hitherto occupying as tenants under Mst. Shaista Begum etc. Thus neither the Senior Civil Judge applied his mind to the situation involved in the case nor the Commissioner or the Collector for that matter. The Commissioner rather held the view that under humanitarian grounds as well as to meet the ends of natural justice the acquisition proceedings could be held in abeyance while the acquiring Department was advised to acquire less expensive land, notwithstanding genuine need of the Department for acquisition of the property which had also made deposit of a sum of Rs.3,70,000 in cash before the Collector as tentative price of the Bungalow.
8. Admittedly, it is primary duty of the Court before which a suit is instituted before issuing the processes to examine the plaint and determine as to whether it should be returned under Rule 10 of Order 7 or rejected under Rule 11 if a case so much is made out. Anyhow, a plaint can be rejected also at any stage of the suit and even by the Appellate Court suo motu or at the application of the defendant when the Court reaches the conclusion that it does not disclose a cause of action. The Court should outrightly reject a plaint which is manifestly meritless and vexaci6us and does not disclose a clear right to sue and for that purpose it may examine a party under Order 10, C.P.C.
Where the matter requires factual investigation the plaintiff must be given an opportunity to substantiate his claim and the plaint should not be ordinarily rejected in haste. In the instant case the learned Civil Judge ought to have made investigations with regard to the existence of proceedings before the Collector under Land Acquisition Act, which by then as we have seen, were held in abeyance by the Collector on the order of the Commissioner.
9. We thus have reached a conclusion, that neither the plaint could be rejected in the civil suit of the petitioners in this manner under Order 7, Rule 11, C.P.C., nor the Collector could stop proceedings for compulsory acquisition of the property under Act I of 1894 in that mode. These orders were manifestly wrong and passed illegally which are accordingly set aside on the acceptance of this writ petition and declared of no legal effects. We would now pass a direction, that Senior Civil Judge, Abbottabad shall restore the civil suit and take proceedings by disposing it of on merits in accordance with law. His judgment and order, dated 25-3-1996 is set aside. Similarly, we would set aside the order passed by the Commissioner in the land acquisition case direct the Collector to resume proceedings for acquisition of the property in dispute in accordance with law.
Simultaneously, an order is passed that Controller of Rents, Abbottabad Cantonment, in the meanwhile, shall not proceed with the eviction petition of the respondents.
No oraer as to costs.