' On 3-9-1995, Habib & Sons, through Habib Khan, filed suit against the Government of N.-W.F.P. And 9 others for declaration of title and also for recovery of Rs,1,73,200 and Rs,6,09,195 as claimed in paras. A, B and C of the plaint. The defendants were summoned, who submitted their written statements as well. All of sudden on 1-10-1997, the learned Senior Civil Judge, by means of short judgment, rejected the plaint under, Order 7, Rule 11, C.P.C. Read with Order 6, Rule 6, C.P.C., holding that failure to comply with clause 25 of the Agreement was fatal to the progress of suit. Feeling aggrieved, the plaintiff has filed the instant appeal.
2. It may be mentioned at the cost of repetition that the respondents had put up appearance at various dates before the learned trial Court and as matter of fact respondents Nos.1 to 6 filed common written statement, while respondent No,9 submitted separate written statement but they never raised objection with regard to non-maintainability of suit in terms of clasue-25 of the contract deed annexure-A. Similarly, no such issue was framed on this point and rightly so in view of the fact that the respondents failed to take this plea in the written statement and both the parties observed silence with regard to clause-25 of the Agreement. Surely it was for the respondents to plead violation of clause-27 of the said Agreement and in point of the fact before filing written statements, they should have raised objections as required under section 34 of the Arbitration Act. The respondents could seek stay of the suit before filing written statements by moving appropriate application. The respondents have lost the opportunity. PLD 1987 Karachi 219, 1988 CLC 1169 and 1993 CLC 583, can be quoted with advantage. When confronted with the situation, the learned Assistant Advocate-General, with his usual fairness and frankness conceded his inability to support the order of the trial Court.
Accordingly, this regular first appeal is accepted, the judgment and deceree of the Court below is set aside and the case is remanded back to the trial Court for disposal in accordance with law.
Parties are directed to appear before the trial Court on 11-6-1999.