1. ' The applicants have preferred this revision application under section 115, C.P.C. Questioning concurrent findings recorded by the learned Senior Civil Judge, Mehar on 1-4-1998 in Suit No,41 of 1997 and in the judgment, dated 27th November, 1998 passed by the learned Additional District Judge, Mehar in Civil Appeal No,7 of 1998. The two Courts have rejected the plaint under Order 7, Rule 11, C.P.C. In Suit No,41 of 1997 filed by the applicants.
2. ' The applicants had filed the above-referred suit for partition of Sikni plot of land bearing S. No,152, Deh Gahi Mahessar, Taluka Mehar, District Dadu measuring 2.05 acres hereinafter referred as the subject land by claiming ownership therein to the extent of 50 paisa share. The respondents, without filing any written statement, submitted an application under Order 7, Rule I I , C.P.C. Which was supported by an affidavit containing the around for rejection of plaint in paragraphs 3, 4 and 5 thereof which are as follows:-- "3. That the matter has directly and substantially in issue been decided by competent Civil Court in decree bearing No,34 of 1976 re: Muhammad Bux v. Hidayatullah and others.
3. ' That the plaintiffs have specifically been estopped from claiming the suit plot through the judgment and decree referred to above.
5. That the plaintiffs herein had alleged their ownership in the former suit and we the defendants herein had denied the title of the plaintiffs."
4. ' Thus rejection of plaint was sought on the basis of bar contained in section 11., C.P.C. The applicants in reply to the application under Order 7, Rule 11. C.P.C. Chose to file objections contending therein as follows:-- "That the plaint cannot be rejected on the grounds shown in the, application As no fact is required to be proved, no affidavit is necessary."
5. ' The learned Senior Civil Judge, after hearing arguments, was pleased to reject the plaint by holding that the judgment and decree in Suit No,34 of 1976 had substantially decided the issue involved in the present proceedings by holding further that the above referred proceedings had competently been decided between the same parties. It further appears that the judgment and decree passed in Suit No,34 of 1976 was available before the Senior Civil Judge for perusal and was considered while deciding the application under Order 7, Rule 11, C.P.C., indeed. The appeal preferred by the applicants did not succeed and was dismissed through the impugned judgment by holding that the applicant was guilty of suppression of facts and the judgment and decree in Suit No,34 of 1976 had decided the controversy raised by the applicants and the finding, as above, was binding on the parties. The suit filed by the applicants was found to be hit by the principle of res judicata and consequently liable to rejection under Order 7, Rule 11, C.P.C.
6. ' Mr. Illahi Bux Kehar, Advocate for the applicants has urged that a plaint cannot be rejected under Order 7, Rule 11, C.P.C. Unless written statement was filed by the respondents/defendants and evidence was led by the parties after settlement of issues. The learned counsel has placed reliance, in support of his submission, on the case of Jewan and 7 others v. Federation of Pakistan and 2 others reported in 1994 SCM R 826. The next contention of Mr. Kehar is that a plaint can be rejected on the basis of averments contained therein and no other material can be seen for the purpose of orders under Order 7, Rule 11, C.P.C. The learned counsel has referred to the case of Haji Allah Bux v. Abdul Rehman and others reported in 1995 SCM R 459 in support of his last-mentioned submission.
7. Taking up the second contention first, it is settled by now that for the purpose of Order 7, Rule 11, C.P.C. The contents of plaint have to be considered. However, the pleadings of the defendant which remain undisputed and the documents which are not denied and are admitted can also be taken into consideration for deciding an application under Order 7, Rule 11, C.P.C. The answer to the second contention of Mr. Kehar is appropriately recorded in the case of Jewan and 7 others (supra), wherein the following finding is registered:- "We are, therefore, of the view that in the above-referred cases though the observation was made by the Court that Order VII, Rule 11; C.P.C. Is not exhaustive of all situations but it did not lay down the law that the Court while rejecting the plaint under Order VII, Rule 11, C.P.C. Could take into consideration the plea of defendant though disputed and denied by the plaintiff."
8. ' In view of the above finding which is binding upon me, I do not consider it proper to expatiate (sic) any further on the above question.
9. ' Reverting to the first contention of Mr. Kehar, the learned counsel has not shown me any provision prohibiting the Court from rejecting plaint in the absence of or before submission of written statement by the defendants. The purpose of Order VII, Rule 11, C.P.C. Is to save the parties from the rigors of frivolous litigation at the very inception of the proceedings, in the words of Murshed, C.J.
10. (as he then was) in the case of Burmah Eastern Ltd. v. Burmah Eastern Employees' Union and others reported in PLD 1967 Dacca 190, "it contemplates that a still-born suit should be properly buried, at its inception, 'so that no further time is consumed on a fruitless litigation. Secondly, it gives plaintiff a chance to retrace his steps, at the earliest possible moment, so that, if permissible under law he may found a properly constituted case". It is, indeed, duty of the Court to reject the plaint at the earliest stage if the suit appears to be incompetent. The stand taken by Mr. Illahi Bux Kehar that a plaint cannot be rejected until written statement is filed and evidence is led, would render otiose the provision of Order VII, Rule 11, C.P.C. The portion referred by the learned counsel from the judgment in the case of Jewan and 7 others -(supra) has been misquoted in the context of the present matter. In the reported case, principle of res judicata was held inapplicable for the reason that the judgment and decree in the previous proceedings had yet to be brought before the Court and the assertion that the proceedings were barred by res judicata had been denied. In the present case, however, the assertion made in the application under Order VII, Rule 11, C.P.C. That the judgment and decree in Suit No,34 of 1976 had directly and substantially decided the issue raised by the applicants had remained uncontroverted. It was specifically pleaded that Suit No,34 of 1976 had been decided by a competent Court of civil jurisdiction and the parties thereto were the same as are litigating herein. The applicants chose not to dispute the said assertion made on oath and took up the position that no factual controversy was involved arid, therefore, no affidavit in reply was necessary. The applicants had thus accepted the factual assertion with the result that such factum could validly be considered while deciding the application under Order 7, Rule 11, C.P.C.
11. ' In the circumstances, I do not find any wrong in the findings, recorded concurrently by the two Courts below, warranting interference in exercise of revisional jurisdiction. The present revision in the circumstances is dismissed.