This appeal under section 96, C.P.C. Has been directed against judgment and decree, dated 28-1- 1998 passed by Additional District Judge-II, Quetta in Civil Suit No. 18 of 1997 whereby the suit filed by the appellant has been dismissed and compensatory cost of Rs.11,000 imposed against the appellant.
2.The facts of the case relevant for the disposal of the instant appeal are that on 8-12-1997 the appellant instituted civil suit for injunction against the respondents and on presentation of the suit in the Court of District Judge, Quetta and the same was sent to the file of the Additional District Judge-11, Quetta. In the suit it has been contended that property bearing Khasra No.355 to Khasra No. 361 measuring 2598 sq. Ft., Khatooni No. 18/ 19, Mouza Ward No. 19, Tappa Urban, Tehsil and District Quetta initially belonged to one Mst. Rabia comprising of a house, out of which an area of 800 sq. Ft. Was rented out to the brother of the appellant namely Haji Behram Khan and the appellant has been residing in the said house. It has further been averred in the plaint that the suit property was sold by Mst. Rabia to the respondents Nos. l and 2 despite of the offers given by the appellant for the purchase of the property. According to the case of the appellant as the property in suit is adjacent to the house in question, therefore, having a preferential right to such property, the appellant's brother Haji Behram Khan filed suit for pre-emption in the Court of Senior Civil Judge, Quetta some time in the month of July, 1994 wherein it was specifically pleaded that the possession of the disputed property remains with the plaintiff, in the said suit and alongwith the main suit for pre-emption, application under Order XXXIX read with Rules 1 and 2, C.P.C. Was also filed praying therein that the respondents Nos. l and 2 be restrained from transferring, alienating, selling or making any structural change in the property in question till the disposal of such suit. The suit filed by the appellant's brother namely Haji Behram Khan was ultimately dismissed by the trial Court on 27-11--1996 and the appeal preferred against such decree was also dismissed by the High Court on 1-7-1997, whereafter Haji Behram Khan filed C.P.L.A. No. 114/Q of 1997, before the Honourable Supreme Court alongwith an application for stay under Order XXXIII, Rule 6 of the Supreme Court Rules was also filed and the Honourable Judge in Chamber was pleased to grant the interim relief on 6-8-1997.
It has been contended in the instant plaint that the appellant is in possession of 800 sq. Ft. Of property in question but the respondents with mala fide intentions and without adopting the proper course, as provided under the law intend to take possession of such property and on 7-12- 1997, while the brother of the appellant was at Karachi and appellant himself was not present, he received a telephonic call from Quetta whereby he was informed that the respondents were demolishing the walls of the house in question and also were removing the valuable articles lying in the house whereupon; the appellant rushed to Quetta and with the help of the notables was successful in restraining the respondents from taking the law into their hands and also lodged report with the police in respect of the abovementioned event. It has further been averred in the plaint that the respondents have no right vesting in them to forcibly take over possession of the property in question; save in accordance with law but the respondents are bent upon to take over the possession of the suit property hence the suit on the abovementioned averments instituted by the appellant. The following relief has been claimed in the suit:-- "It is, therefore, prayed that this Honourable Court may be pleased to pass a decree in favour of plaintiff and against the defendants by permanently restraining them from interfering, intermeddling or in any way taking the possession of the property measuring 800 sq.Ft, bearing Khasra Nos.355 to 361, with its Khatooni No.18/19, Mouza Ward No. 19, Tappa Urban, Tehsil and District Quetta, except in due course of law, in the interest of justice."
3. The respondents Nos. l and 2 and the respondents Nos.3 to 11 filed separate written statement in Court on 17-1-1998 whereby they seriously contested the suit on factual and legal grounds mentioned therein. It may be noted that the appellant also filed an application under Order XXXIX, Rules 1 and 2, C.P.C. Which was also contested by the respondents by means of their rejoinders to the application. The respondents almost on the same grounds of facts and law contested the suit.
Besides the legal objections taken in the written statements, on merits of the case it has been contended that the property in dispute initially belonged to Mat. Rabia Begum and Behram Khan also wanted to purchase the same as the respondents offered higher price, therefore, the respondents Nos.1 and 2 succeeded in purchasing the property and in order to frustrate the proposed transaction between the owner of the property and the respondents Nos. l and 2, the brother of the appellant Haji Behram Khan filed a civil suit against Mst. Rabia Begum contending therein that he was in possession of 800 sq.Ft. Of land as tenant of Mat. Rabia Begum (owner of property) at monthly rentals of Rs.25 and on such piece of land in occupation of Behram Khan there exists a garrage, where Behram Khan and Mst. Rabia Begum used to park their vehicles and her family members are trying to illegally dispossess him from the plot and a similar prayer has been claimed in the instant suit instituted by the appellant. It has been explained in the written statement filed by the present respondents that the suit instituted by Behram Khan was dismissed by the Court and prior to that the ad interim relief prayed for was also refused. Referring to the written statement filed by Rabia Begum in the said suit, it has been stated that Rabia Begum repudiated the claim of Behram Khan that he is in occupation of 800 sq. Ft. Of land/plot. In the written statements filed in instant suit, it has been stated that the property in question was purchased by the respondents Nos. l and 2 in the year 1989 but the same was transferred in favour of the vendees through mutation effected in the Revenue Record in the year 1994, on account of numerous, baseless suits and stay orders obtained by concealing facts and that after the purchase of the house, father of Haji Behram Khan and his brother assaulted the respondents Nos. l and 5 with the result that a criminal case was registered against accused under section 337/34, P.P.C. Vide F.I.R. No.8 of 1990. Consequently, they were convicted and sentenced by the learned Sessions Judge, Quetta and the conviction was upheld up to the Honourable Supreme Court. It has further been contended in the written statements that another attempt was made by Haji Behram Khan to prevent the respondents Nos. l and 2 from demolishing the house, for which they had obtained necessary permission from the Quetta Municipal Corporation and this time at the instance of Hoji Behram Khan, three of his relatives filed separate civil suits claiming that they have their Khokas adjacent to the house in question and sought injunction for restraining the respondents Nos, I and 2 from demolishing their house, and; thereafter, six more similar suits were filed by the relatives of Haji Behram Khan at his instance, however, once again they failed in their attempt and in view of the report of the local Commissioner, such suits were dismissed by the learned Additional District Judge-I. Quetta by means of order, dated 10-11-1997 and in appeal pursuant to the settlement arrived at between the parties High Court allowed respondents Nos. l and 2 to demolish the house. It has been asserted in the written statement that when all the mala fide attempts on the part of Haji Behram Khan and his relatives failed and the house was demolished, yet thereafter a false and baseless report was lodged with the City Police Station, Quetta on 7-12-1997 by the appellant on the basis whereof case Crime No.254 of 1997 has been registered under sections 427, 454, 380/34, P.P.C. In view of the aforementioned averments as contained in the written statements, it has been categorically pleaded that the house in question stands demolished and the plot is in the physical possession of the respondents Nos. l and 2 and that the rest of the respondents have no concern with the property in question. Thus, it has been prayed that the suit being baseless and malicious may be dismissed with compensatory costs of Rs.25,000 so that the plaintiff may not file false and baseless suit in future.
4. The learned trial Court vide impugned judgment and decree dismissed the suit of the appellant which has been assailed in the instant appeal, and, in the same order simultaneously rejected the application for grant of interim injunction.
5. The learned counsel for the appellant contended that the parties' counsel were heard only in respect of application filed by the appellant for grant of interim injunction and the learned trial Court simultaneously in the suo motu exercise of powers dismissed the suit without notice and hearing. The learned counsel argued that the suit even otherwise could not have been dismissed in the exercise of powers under Order VII, Rule 11, C.P.C. In view of the averments contained therein.
According to the learned counsel, it was incumbent for the trial Court to have had framed issues including the legal issues in view of the pleadings of the parties and thereupon; the legal issues, about the maintainability of suit should have been decided first provided the suit would have been decided, by disposing of legal issues. The learned counsel strenuously contended that the suit did disclose a cause of action because the appellant is in possession of 800 sq. Ft. Of land forming part of suit property alongwith his brother Haji Behram Khan, from where the appellant was being attempted to be dispossessed forcibly and illegally, hence the suit for injunction was instituted in order to restrain the respondents from dispossessing the appellant; save in accordance with law.
The learned counsel submitted that the suit for pre-emption filed by the appellant's brother in respect of suit property was dismissed by the Court of learned Senior Civil Judge and the appeal preferred against the decree was also dismissed by the High Court, against which decrees C.P.L.A.
Has been filed in the Honourable Supreme Court alongwith an application for stay and the Honourable Judge granted stay as prayed for in Chambers. It has been argued by the learned counsel that the trial Court also, illegally allowed compensatory costs in favour of the respondents, without the suit having been decided on merits. The learned counsel in view of his abovenoted contentions submitted that the impugned decree be set aside and the case be remanded to the trial Court for disposal in accordance with law.
6. Mr. Ehsanul Haq Khan, the learned counsel for the respondents, submitted that the facts relevant and material in the matter have been deliberately suppressed, and; with reference to the contents of the plaint and in view of the document placed on record, the trial Court appropriately passed the impugned decree however, the learned counsel submitted that the impugned decree in the circumstances of the case would be deemed to be an order of rejection of plaint under Order VII, Rule 11, C.P.C. Because the plaint did not disclose any cause of action. The learned counsel further submitted that the parties' counsel were heard by the trial Court about the competency and maintainability of the suit and in respect of the application under Order XXXIX, Rules 1 and 2, C.P.C.
According to the learned counsel the trial Court at any stage of the proceedings can competently reject the plaint, if it does not disclose any cause of action; which is wanting in the instant plaint.
The counsel lastly submitted that in any case; if this Court comes to the conclusion that the decision be made afresh by the trial Court; the dismissal of the application filed under order XXXIX, Rules 1 and 2, C.P.C. Be maintained because the same has been admittedly decided on merits after hearing the parties, inasmuch as; no challenge to such order has been made in the memo. Of appeal, nor even during arguments addressed by the appellant's counsel, order dismissing the application for interim relief, has been questioned. To such contention the learned counsel for the appellant submitted that he has assailed the impugned order as a whole, as such in case, the impugned order is to be set aside, the application needs be decided afresh.
7. The contentions put forth on behalf of the parties have been considered in the light of the record of the case and the law. The learned trial Court as it appears from the impugned order has, dismissed the application under Order XXXIX, Rules 1 and 2, C.P.C. And the suit, simultaneously vide impugned judgment as decree. Though the learned trial Court, dismissed the suit but it must be deemed to be an order rejecting the plaint within the meaning of Order VII, Rule 11, C.P.C. As it appears from the impugned judgment and the stage when such powers exercised by the Court.
8. The provisions of Order VII, Rule 11, C.P.C. Have never been regarded to cover all the cases in which a Court can reject plaint or to limit the I inherent powers of the Court in respect thereof, and, therefore, the Court can take into consideration material other than the contents of the plaint, while considering the question of rejection of plaint. A plaint can be rejected under this rule at any stage, even after its registration and before or after framing issues or even the Court can reject a plaint while disposing of an application for grant of temporary injunction. 1987 CLC 1019, 1982 CLC 55, AIR 1922 Cal. 506, 1912 All. 553 (DB) and 1993 M LD 918 ref.
9. In the instant case, the learned trial Court has considered the material available on record, such as, decree of various Courts, pleadings etc. Besides framing issues and after receiving the written statements, thus, the stage at which such powers were exercised and the material other than the contents of plaint having been considered by the Court, would not lay any basis to strike down the impugned order on this score alone.
10. The expression "cause of action" used in the Rule significantly refers to the averment/s of fact/s on which, the claim or right of the plaintiff is based, as against the defendant, thereby enabling the Court to pronounce judgment and the powers to reject a plaint under this rule are exercisable only if the Court comes to the conclusion that even if, all the averments contained in the plaint on which the claim or right has been based are proved, the plaintiffs would not be entitled to any relief. Thus, it is the duty of the Court to see whether the allegations made in plaint give rise to a cause of action and thereby enabling the Court to effectively set at rest the controversy between the parties through its judgment; else to reject the plaint.
11. It may be seen that in the instant matter, consequent upon filing of the written statements on 17- 1-1998 and rejoinder to the application, the learned trial Court fixed the matter for arguments on 22-1-1998, on which date as per case diary, lengthy arguments were heard by the Court and the case fixed for order on 28-1-1998 i.e. The date on which the impugned judgment has been announced.
It is pertinent to note that the learned trial Court in the suo mote exercise of powers without notice to the parties as per record, passed the impugned order dismissing the appellant's suit. In any case, if the learned Court wanted to determine as to whether the plaint is liable to rejection for want of cause of action, it was obligatory at the given stage of the proceedings, to have had specifically directed that the parties would be heard in such context but the proceeding sheet of the case is silent in such behalf and, thus, it cannot be assumed that the appellant had the notice of such aspect of the matter, all the more, as an objection to this effect has since been taken in the written statement filed by the respondents Nos.1 and 2, the learned trial Court should have appropriately avoided to decide the same in the suo motu exercise of powers; rather would have framed the required issue and decided it, after hearing the parties. The course adopted by the Court as abovenoted renders the impugned judgment and decree to the extent of dismissal of suit, as not sustainable.
12. As abovementioned the learned trial Court vide impugned judgment simultaneously dismissed the application for grant of interim injunction on merits and the order to such extent has not been assailed in the memo, of appeal, nor questioned during the course of arguments advanced by the appellant's counsel, as such, the order contained in the impugned judgment is maintained.
Thus, for the foregoing reason, the impugned judgment to the extent of the dismissal of suit and the decree impugned herein is set aside and the case is remanded to the trial Court with directions to frame the required issues in the light of pleadings of the parties and to dispose of the legal issue/s at the first instance. Consequently, the appeal is allowed to the abovenoted extent, with no order as to costs.