1. ' Through this revision the applicant has challenged the judgment/order, dated 20-8-1998 passed by the District Judge South Karachi and order dated 26-5-1998 passed by the XIII Civil Judge South Karachi in Appeal No,62 of 1998 and Suit No,123 of 1998 respectively.
2. ' The brief facts to dispose of the Revision Application are that the applicant is the Institute of Engineers Pakistan, registered under Companies Act and that the present applicant had filed Suit No,123 of 1998 along with an application under Order 39, Rules 1 and 2, C.P.C., for declaration and permanent injunction against the respondents who were President and Secretary respectively of the Institute and further praying to restrain the respondents from using their old designations after 2-2-1998 in any correspondence, business card, rubber stamps etc., and also to direct them to return the official stationery, stamps and miscellaneous property of the applicant.
3. ' The respondents filed their counter-affidavit to the application and denied the contents of the plaint and application and supporting affidavit and took the plea that the suit is not competent as the plaintiff (present applicant) "the Institute of Engineers Pakistan" does not exist as it is in fact the Institution of Engineers Pakistan (Institution). It was further pleaded that in terms of section 6 of the Societies Registration Act, 1860 the institution could sue in the name of the President, Chairman or Principal Secretary or Trustees as provided under the rules and regulations of the society and under the bye-laws only the Secretary General of the Institution could institute the suit while the instant suit was filed through Mr. Waqar Hussain who is admittedly not the Secretary General of the Institution as his membership stood suspended and as such the suit may be dismissed summarily.
4. After hearing the parties, the learned XIII Civil Judge, Karachi South, rejected the plaint under Order VII, Rule 11, C.P.C., with compensatory cost of Rs,10,000 to be borne by Mr. Waqar Hussain personally.
5. ' Against this order appeal was filed bearing No,62 of 1998 praying for setting aside the order dated 26-5-1998 of the learned trial Court and for restoration of suit to its original position. After hearing the parties the learned Appellate Court passed the order dated 20-8-1998 dismissing the appeal with cost. It is against this order that the present revision application has been filed.
6. ' The contention of Mr. A.G. Manghi the learned counsel for the applicant was that both the Courts failed to appreciate that the registration certificate, dated 27-6-1977 of the applicant clearly indicates that the applicant was registered as "Institute of Engineering Pakistan" and not as 'Institution of Engineering Pakistan'. He further referred to the preamble of the Constitution which also confirms the contents that the applicant is the Institute of Engineers Pakistan. According to him, even if it is accepted that subsequently the name was amended as the 'Institution of Engineers of Pakistan' amendment was not registered with the Registrar of the Societies and as such the change has no legal effect. His next contention was that under Order VII, Rule 11, C.P.C., while considering the rejection of the plaint the Court is only supposed to take into consideration the contents of the plaint but the learned trial Court as well as the Appellate Court relied on the contents of the counter-affidavit which was against the law and as such the order/judgment passed are illegal and of no legal effect and are liable to be set aside. He relied on the case of Naya Daur Motor (Pvt.). Limited v. Pakistan Banking Council through Chairman Habib Bank Plaza, Karachi and 7 others, (PLD 1997 Kar. 208) and.
7. ' His next contention was that the cost was imposed on the applicant without any valid grounds.
8. ' On the other hand, Mrs. Haleema Khan, the learned counsel for the respondent contended that the very title page of the Constitution and bye-laws indicate that the name of the applicant is "The institution of Engineering Pakistan" and not Institute of Engineering Pakistan as mentioned in the plaint. It was further stated that in 1993 in 22nd Annual General Body Meeting at Karachi the word "Institute" was substituted by the word "Institution". According to her, the Institute did not authorise the present Secretary to initiate the proceedings and as such the trial Court and the Appellate Court were right in rejecting the plaint, which could be rejected at any stage.
9. ' I have heard the learned counsel for the parties and have perused the record. It is a fact that the applicant's name as registered on 27-6-1977 and entered in the Certificate of Registration is "institute of Engineers Pakistan" and so also the preamble confirms the said name. In Chapter 1, the name is given as the name of the institution is "The Institution of Engineering, Pakistan" hereinafter called the Institution. However, the fact that the Resolution was passed in 22nd Annual General Body Meeting held at Karachi in the year 1979 wherein the word "Institution" was substituted for Institute Badmouthed. But it has been admitted by the learned counsel for the respondent that the amendment has not been registered as yet with the Registrar of the Joint Stock Company. In the light of this admission and the fact that Constitution and Bye-Laws have not been amended the fact remains that the name of tile plaintiff as stood at the relevant time was "Institute of Engineers Pakistan" and not the "Institution of Engineers Pakistan".
10. ' Order VII, Rule 11, C.P.C. Is as under:--- "Rejection of plaint.---The plaint shall be rejected in the following cases:---
(a) Where it does not disclose a cause of action.
(b) Where the relief claimed is under- valued and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so,
(c) Where the relief claimed is properly valued but the plaint is written upon paper in-sufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so,
(d) Where the suit appears from the statement in the plaint to be barred by any law."
11. ' The plaint was rejected by the learned trial Court on the first ground that it did not disclose a cause of action. The provision provides that the Court while rejecting the plaint will look only into the contents of the plaint and neither the written statement nor counter-affidavit can be looked into. If the pleadings are vague the Court can direct the party to furnish better statement rather than rejecting the plaint. Further if the Court is of the view that the allegations in the plaint prima facie gives a cause of action then it can direct the defendant to show as to how the allegations in the plaint do not reveal any cause of action and in such a case the defence put up can be taken into for consideration. But in such cases a preliminary issue regarding maintainability should be framed and decided. Reliance can be placed on the case of Naya Daur Motors, wherein it was held as under: "It is well-settled proposition of law that a plaint can only be rejected when the facts stated and pleaded in a plaint tend to show to the satisfaction of the Court that the relief claimed is barred by law or it does not disclose a cause of action. For deciding the fate of a suit before reaching the stage of trial, it is of utmost importance to keep in mind that the contents of a plaint are deemed to be correct and accepted on its face value. To determine the question whether a suit is barred by law or the plaint does not disclose a cause of action, a Court cannot lawfully take into consideration the defence pleas raised on behalf of the defendants. Apart from the averments made in the plaint, a Court is entitled to take into consideration the facts which are admitted by the plaintiff and the documents admitted by him. Indeed every fact disclosed in the plaint has to be assumed as true notwithstanding the defence taken by other side."
12. ' In the case of Jewan and 7 others v. Federation of Pakistan through Secretary Revenue, Islamabad and 2 others, (1994 SCM R 826). It was observed that:- "A plain reading of Order VII, Rule 11, C.P.C., would show that the rejection of plaint under this provision of law is contemplated at a stage when the Court has not recorded any evidence in the suit. It is for this reason precisely, that the law permit consideration of only averments made in the plaint for the purpose of deciding whether the plaint should be rejected or not for failure to disclose cause of action or the suit being barred under some provision of law. The Court while taking action for rejection of plaint under Order VII, Rule 11, C.P.C., cannot take into consideration pleas raised by the defendants are only contentions in the proceedings unsupported by any evidence on record.
13. However, if there is some other material before the Court apart from the plaint at that stage which is admitted by the plaintiff the same can also be looked into and taken into consideration by the Court while rejecting the plaint under Order VII, Rule 11, C.P.C. Beyond that the Court would not be entitled to take into consideration any other material produced on record unless the same is brought on record in accordance with the rules of evidence."
14. In the instant case order and judgment both reflect that the notices were issued to the defendant who filed written statement and the learned trial Court took cognizance of the defence pleas relied on them without framing a preliminary issue in regard to the maintainability of the suit. Relying on the facts of the case and a bare reading of the provisions and the case-law cited above it can be said that both the Courts failed to appreciate the provisions of law and exercise their jurisdiction accordingly.
15. ' The learned Court while imposing a heavy cost has given no reasons.
16. ' In my opinion the trial Court should have framed the preliminary issue in regard to the maintainability of the suit and after hearing the parties could decide the said issue. In the circumstances the case is remanded back to the learned trial Court to frame a preliminary issue in regard to maintainability and after due notice to the parties may proceed and decide the same on merits.